By Adam R. Young and Mark A. Lies, II

INTRODUCTION

The Federal Occupational Safety and Health Administration (OSHA) requires employers to report certain serious injuries by telephone within twenty-four (24) hours. Injuries that must be reported include injuries that result in inpatient hospitalization for medical treatment, amputations, and losses of an eye. Work-related fatalities, including those caused by heart attacks, must be reported within eight (8) hours.

Reported injuries and fatalities are among the largest drivers of onsite OSHA inspections.   OSHA receives far more fatality and injury reports than the agency is equipped to investigate onsite.  Initially, OSHA may have the option instead to request that the employer conduct a Rapid Response Investigation (“RRI”) instead of coming onsite, sending a letter and standard RRI form for the employer to complete (or not).

OSHA’S TRIAGE PROCEDURES

OSHA’s procedures require the agency to triage incoming fatality serious injury reports to determine whether they will conduct an onsite inspection or the event will be eligible for sending an RRI instead.  Certain scenarios will always trigger an onsite inspection under OSHA’s procedures:

All fatalities and reports of 2 or more in-patient hospitalizations;
Any injury involving a worker under 18.
The employer has a history of the same or similar hazards or incidents within the past 12 months;
Repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations; and employer on SVEP).
Report of a hazard covered by a local, regional, or national emphasis program.
Any imminent danger.

Employers and reports who do not fit into these categories may receive an RRI instead of an onsite inspection, depending on OSHA’s assessment and available resources.

NOT A SAFE HARBOR

The RRI response is not a “safe harbor.” OSHA will closely evaluate the RRI responses as to whether the matter requires an onsite inspection. Employers must be thoughtful as to what they put on this form, to avoid an “admission” of OSHA liability or other comments which can result in OSHA citation or criminal prosecution. False statements in an RRI response could result in a referral to the United States Department of Justice and a five year prison sentence. Because the RRI responses are not legally privileged, they also are discoverable in civil, third-party litigation.

In a later onsite inspection, OSHA may interview managers and employees to confirm the specific facts or statements made in the response. When confronted with the prior statements, managers may have a difficult time explaining the context of sometimes inadvertent statements that suggest non-compliance or erroneous factual information. Citations can be based on any subsequent management admissions. OSHA estimates that the majority of citations are based in part of on the employer’s admissions of violations: in written statements, documents, and spoken comments to the investigator.

GENERAL RECOMMENDATIONS FOR RESPONSE

When answering the RRI questions, employers should follow some general recommendations:

Be Truthful — First and foremost, your RRI responses must be 100% factually accurate. Do not make any misstatements. The United States Department of Justice regularly prosecutes employers and managers who make material misstatements to federal officials as obstruction of justice or a false statement, both of which are a felony.

Keep it Simple and Short — Employers do not need to provide lengthy responses on the RRI form. Include the minimum amount of essential information to clearly describe what occurred and the Company’s corrective actions taken, if any.

Answer the Questions Asked — Limit responses to the questions asked and do not digress into potential hypothetical situations or events.

Avoid Speculation — The Company only should report what witnesses actually saw or what the Company firmly knows from physical evidence — not what someone thinks “may” have occurred. Speculation on the cause of the accident can create unnecessary admissions, or false statements that align with OSHA’s misconstrued theories. In addition, there is no regulation that requires the employer to conduct a root cause analysis, fishbone analysis, or Swiss cheese analysis in order to complete the RRI form.

In the case of a serious accident, if the employer decides to conduct a root cause analysis, it should consider having its legal counsel involved from the outset to direct the investigation and to create legal privileges for the root cause analysis, which will protect the investigation from disclosure in OSHA proceedings or other litigation. The analysis also does not need to be documented.

When it Doubt, Seek Advice from Experienced Outside OSHA Counsel — If the employer engages experienced counsel, they can avoid preparing an RRI response that will create unnecessary liabilities.

Shape the Narrative – Employers should be considering their defenses to potential OSHA citations when responding to an RRI. The RRI is an opportunity to shape the narrative with OSHA about the nature of a worker’s work relationship with the Company, or the nature of an accident. For example, the injured worker’s status as an employee of a third party specialty contractor may be a defense to citation. Additional information indicated a non-work-related cause of the incident may also be relevant to include.

SPECIFIC RESPONSES ON THE RRI FORM

We have attached a blank RRI form to this article, also known as an “Attachment A” NON-MANDATORY INVESTIGATIVE TOOL. Please take particular note in answering the following questions:

Section C1: Date and time of the incident

If you do not have eyewitness testimony, do not speculate as to the time of the accident. You can provide a range of dates if the accident occurred in the late evening, and no one knows for sure when it occurred.

Section C3: What was the employee doing just before the incident occurred?

If you do not have reliable eyewitness testimony, do not speculate as to what the employee was doing at the time the incident occurred. A permissible answer would be “Unknown, no eyewitness testimony.” If you want to state your best assessment based on physical evidence as to what occurred, an example could be “Unknown, no eyewitness testimony. The Company believes that the injured employee was loading widgets into the grinder. Investigation continues”

Section C4: What happened?

A simple description of what occurred is sufficient. As stated above, no regulation requires that the employer to do a root cause analysis on the accident and to provide an exhaustive chronology of facts. Likewise, employers do not have to generate written employee statements or photographs to submit with the RRI. Again, if you do not have reliable eyewitness testimony, do not speculate as to what the employee was doing at the time the incident occurred. If you do want to provide basic detail, a proposed answer could be: “Coworkers saw the injured employee remove a machine guard and place his hand in the operational grinder machine.”

Section C5: What was the injury or illness?

Again, a simple statement is appropriate. You are not required to provide a detailed medical description of the injury or illness. If an employee injury or illness has been diagnosed by a doctor, provide that summary diagnosis. If the injury is clear (e.g. finger amputation), provide that description. Otherwise, do not speculate beyond your knowledge, simply state: “The employee injured his finger” or “the employee’s finger was amputated.”

Section C6: What object or substance directly harmed the employee?

Again, if you do not have reliable eyewitness testimony or unquestionable physical evidence, do not guess as to what the employee was doing at the time the incident occurred. Be careful speculating as to what occurred. “The employee was discovered on the floor next to a fallen ladder. It is believed that he was injured and may have fallen. Investigation continues.”

Section D: WHAT CAUSED OR ALLOWED THIS INCIDENT TO HAPPEN?

OSHA’s instructions ask for a full analysis of the equipment, policies, and compliance. Keep the answer short and limited to known facts. If the employee was properly trained and did not comply with his training or use an appropriate tool, practice or safety device, which would constitute employee misconduct and a potential defense to an OSHA violation, describe the misconduct in a factual manner.

Section E: CORRECTIVE ACTIONS TAKEN TO PREVENT FUTURE INCIDENTS

OSHA Area Directors tell us that this is the most important section. OSHA is less likely to conduct an inspection if it believes that the employer has taken appropriate actions to prevent future accidents. Taking corrective action is not an admission of liability for OSHA violations, but it should not be described in terms of an action that the employer “should” have taken before the accident and “failed” to do so, which would be an admission. Employers should specify what actions they have taken following the accident. The most common actions would be retraining employees on proper safety procedures, enhancement of equipment or safety devices, or use of additional tools or personal protective equipment (PPE).

CONCLUSION

We recommend that employers utilize the RRI form to respond, though the employer always has the option of a narrative in letter format. In either event, the response must be factually accurate and not based on speculation, which may not be accurate. Limit the response to known facts about the event and a brief description of any corrective action. In the event of a serious injury or fatality, engagement of experienced OSHA counsel should be considered to create legal privileges.

“Attachment A”

NON-MANDATORY INVESTIGATIVE TOOL

A.    ESTABLISHMENT INFORMATION

1) Name of Investigator:_______________________________________

2) Job Title:­_________________________________________________

3) Name of Company ­­­­­­­­­­­­­­­­­­­­_________________________________________

4) Address: _________________________________________________

5) Contact Phone:  ___________________________________________  

6) Fax___________________________________________

7) E-Mail ___________________________________________

8) NAICS ___________________________________________

9) How many Employees at:  a) Work site______  b) All Locations_______

10) Union : Yes_____   No_____

11) Union Name and Contact Info: ___________________________________________

B.     INJURED EMPLOYEE INFORMATION

1) Injured Employee Name: _______________________________________

2) Age: ______                                   

3) Gender   Male___   Female____

(For additional employees, use continuation section at end of form.)

4) Employee Typical Job Title: _______________________________________

5) Job at Time of Incident: _______________________________________

6) Type of Employment (check all that apply):  ☐Full Time   ☐Part Time   ☐Seasonal  

☐Temporary   ☐Other: 

7) Length of Employment with the Company: _______________________________________

8) Amount of time in current position at time of incident:  _____________________________

9) Nature of Injury: _______________________________________

10) Part of Body: _______________________________________

C.    INCIDENT INVESTIGATION

1) Date and time of the incident: ___________________________________________________

2) Location of incident:  __________________________________________________________

3) What was the employee doing just before the incident occurred? Instructions:  Describe the activity; including the tools, equipment, or material the employee was using.  Be specific.  Example:  “climbing a ladder while carrying roofing materials” and “changing gasket on a chlorine line”.

 

4) What Happened? Instructions:  Provide a detailed description of the incident and how the injury occurred.  Provide details such as measurements, sequence of events, equipment RPMs, trench dimensions, the type of vehicle(s) involved, discuss use of hazard controls such as guards or PPE.  Examples:  “bucket of chemical X spilled on the floor”, “ladder slipped on wet floor”, “worker fell 20ft.”, “employee was sprayed with chlorine when gasket broke during replacement” and “employee was not wearing PPE”.

 

5) What was the injury or illness? Instructions:  Describe the part of the body that was affected and how it was affected.  Be more specific than “hurt”, “painful” or “sore”.  Examples:  “fractured vertebrae” and “chemical burn to the hand”.

 

6) What object or substance directly harmed the employee? Instructions:  Provide the type, brand, size, distinguishing features, condition, or specific part that harmed the employee.  Example: “band saw blade”.

 
D.    WHAT CAUSED OR ALLOWED THIS INCIDENT TO HAPPEN?
Instructions:  What were the underlying reasons the incident occurred – and are the factors that need to be addressed to prevent future incidents? If safety procedures were not being followed, why were they not being followed? If a machine was faulty or a safety device failed, why did it fail?  It is common to find factors that contributed to the incident in several of these areas:  equipment/machinery, tools, procedures and policies, training or lack of training, work environment. If you identify these factors, try to determine why these factors were not addressed before the incident.
E.    CORRECTIVE ACTIONS TAKEN TO PREVENT FUTURE INCIDENTS

1) Hazardous condition(s) identified and corrective action taken by employer.  Instructions:  Describe the immediate measures taken, interim and/or long-term actions necessary to correct hazardous condition(s).  Also, use this section to track the completion of multi-step corrective actions as well as final corrective actions used to abate the hazardous condition.

 

Adam R. Young is a partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses on occupational safety and health, OSHA inspection management, employment, and OSHA retaliation. Mr. Young can be contacted at ayoung@seyfarth.com (312) 460-5538.

Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. Mr. Lies can be contacted at mlies@seyfarth.com (312) 460-5877.