By Adam R. YoungMark A. Lies, II, and A. Scott Hecker

Seyfarth Synopsis: Most employers understand that they are required to report serious injuries and illnesses to OSHA shortly after they occur. Even employers in low hazard industries who are not required to keep written OSHA records still face reporting obligations.

Federal OSHA regulations require employers to report work-related fatalities within eight hours, and serious injuries within 24 hours (amputations, loss of eye, or hospitalizations for medical treatment). California reporting obligations are more onerous, requiring reporting within 8 hours for a “serious” injury or illness. First and foremost, employers must comply with the law and report all injuries and illnesses as required by law.

The decision to report can be difficult for employers because it requires rapid analysis of dynamic incidents and medical situations, and the regulations related to reporting are numerous and complex. OSHA aggressively conducts inspections relating to reporting and issues non-serious citations for failure-to-report or late reporting. OSHA learns about incidents from worker complaints, medical providers, and news media reports, and often opens investigations prior to receiving an injury report from the employer.

1. Injury Reporting Serves as a Legal Basis for an OSHA Inspection

OSHA may only conduct an unprogrammed inspection where it has a neutral basis and probable cause to do so. These include reports of injuries (amputation, loss of an eye, or hospitalization) and fatalities. A workplace fatality, other than a public-road car accident or personal medical condition, almost always will result in an onsite OSHA inspection within two weeks. Depending on the jurisdiction, a reported injury can have an approximately 50%-90% chance of an onsite inspection. If you report an injury or death, you should expect OSHA will be onsite shortly and prepare accordingly. An employer can reduce the probability of an onsite inspection if it only reports injuries where required by law, and does not report non-reportables. We recommend closely examining each incident, involving qualified outside counsel, to ensure that reportable injuries are properly reported.

2. Only Work-Related Injuries and Illnesses Must be Reported

The OSHA regulations require employers to report work-related injuries and illness, for which work conditions were a cause or contributing factor. The OSHA regulations presume that an injury or illness occurring at the workplace, unless factors indicate otherwise. Personal medical conditions that manifest in the workplace, such as heart attacks, strokes, and seizures, represent one tricky issue. OSHA’s standard interpretations generally provide that these types of events are reportable. In the instance of reporting such an event, we recommend working with outside counsel to evaluate work-relatedness and frame the issue appropriately.

3. Common Reporting Misconceptions

A surgical amputation (after an accident), surgical loss of an eye, and in-patient hospitalization may all be reportable. But they are not reportable if the reportable event (e.g. surgical amputation) does not occur within 24 hours of the accident. A hospitalization is only reportable if it meets several elements, including a formal admission to the hospital for purposes of medical treatment.

Many times, workers who suffer unfortunate accidents later succumb to their injuries. If their death was in part the result of the work-related injury or illness, and they pass away within 30 days of the incident, there is a fatality-reporting obligation. However, employers only need to report once per employee and need not make a subsequent fatality report if the employer previously reported the employee’s initial injury.

As with other OSHA citations, employer knowledge is a key element. The employer must know or should have known of the reportable injury. This means that the 8- and 24-hour clock begin to run when a manager knew or should have known of an accident. We recommend that employers make good faith efforts to inquire as to employee status at the hospital and report if they learn about a reportable event.

4. Tips For Making the Report

When reporting an injury or illness to OSHA, employers should provide 100% truthful and accurate information. This should not include speculations, assumptions, or inevitably-premature conclusions about the root causes of incidents. Generally speaking, less is more. Report only what is requested and do so accurately.

As with any legal topic, there are exceptions to the general rule. It may be advantageous in some circumstances to provide more information suggesting that an injury or illness is not work-related, or other information that might discourage an onsite OSHA inspection.

5. Inspection Management for a Reported Injury or Illness

For an onsite inspection, OSHA will have a particular location or equipment focus. OSHA will want to see the site of the accident or the equipment on which there has been a complaint. The employer should plan a route on how to get to that area of the worksite, minimizing exposure to other equipment or alleged hazards that OSHA will see. Sometimes the most efficient route will be walking around or driving in a car to remote parts of the worksite. For unprogrammed inspections based on injury reports or referrals the employer knows about, management should assume OSHA is coming onsite and can plan/map the route ahead of time. A qualified manager can walk the route to ensure there are no visible safety hazards (e.g. exposed wiring, unguarded edges), and to ensure prompt and proper correction of any hazards they do identify.