Employers Failing to Report Serious Injuries to OSHA, DOL finds

Workplace Injury

A recent federal government report has urged the Occupational Safety and Health Administration to take steps to ensure that employers report fatalities and injured worker hospitalizations.

Many employers may not be aware, but in 2015 OSHA amended its severe-injury reporting rule to require that employers report the inpatient hospitalization of a single injured employee. Prior to the new rule, they only had to report to OSHA if three or more workers were hospitalized.

Other parts of the rule were left unchanged, including:

  • The requirement that employers report to OSHA workplace fatalities within eight hours.
  • The requirement that employers report any amputations or the loss of an eye within 24 hours.

 

Amputations are defined by OSHA as: “… the traumatic loss of all or part of a limb or other external body part. This would include fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; and amputations of body parts that have since been reattached.”

Inpatient hospitalization is defined as: “A formal admission to the in-patient service of a hospital or clinic for care or treatment. Treatment in an emergency room only is not reportable.”

Between January 2015 (when the new rule took effect) and April 2017, employers reported 23,282 severe injuries to OSHA in addition to 4,185 workplace fatalities, according to the report by the U.S. Department of Labor’s Office of Inspector General.

OSHA shortcomings

But the report found that OSHA had no assurances that employers reported hospitalizations, amputations and losses of an eye – and that only about half of those injuries were reported.

It also found that the agency was not consistent in citing employers that failed to make the reports in a timely manner.

Overall, the report found that OSHA had not been consistent in monitoring employers that it had authorized to conduct their own investigations into what had caused the incidents.

The report had sampled 100 severe injuries and found that OSHA had made inspections in only 37 of the cases and allowed employers to investigate in 63 of the cases.  But in 50 of the 63 cases that employers were supposed to investigate, the report found that OSHA failed to document its decision to allow employers to perform an investigation.

In about 87% of employer investigations, OSHA lacked justification for its decisions to allow employers to perform an investigation or closed investigations without sufficient evidence that the employers had abated the hazards that caused the accident, according to the report.

Employer takeaway

Safety specialists predict that the report could spur OSHA to take a tougher stance and improve its policing.

The report recommendeds that OSHA develop guidelines and train its staff on how to detect non-reporting of these incidents, and issue citations for late reporting or failure to report.

As an employer, you should be diligent about always following OSHA regulations, and now in particular, by following the rules on reporting serious injuries or fatalities.

If you do have a serious injury as defined above, here’s what you need to know:

 

To make a report:

  • Call the nearest OSHA office;
  • Call the OSHA 24-hour hotline at 800-321-6742; or
  • Report online, at www.osha.gov/pls/ser/serform.html.

Be prepared to supply:

  • The name of your business;
  • Names of employees affected;
  • Location and time of the incident;
  • Brief description of the incident;
  • Contact person and phone number.

Preventing Substance Abuse in the Workplace

Drug and alcohol use by employees on or off the job is a troublesome societal plague that has put many employers on the defensive.

Research by the U.S. Department of Labor shows that between 10% and 20% of the nation’s workers who die on the job test positive for alcohol or other drugs.

The same research shows that industries with the highest rates of drug use are the most physically dangerous and involve the operation of machinery, such as construction, mining, manufacturing and wholesale.

With this in mind, you need to know all of the tools available to you as an employer to ensure that you keep a strong drug- and alcohol-free workplace policy in place, while trying to minimize the effects of employees who are heavy users off the job.

An effective policy can reduce the risk of workplace injuries to an impaired employee as well as co-workers and anybody your company may come in contact with, particularly customers or vendors. The actions of one impaired person, or someone that uses heavily off the job, can have far-reaching effects and turn out to be a significant liability for your company.

Various Occupational Health and Safety Administrations (OSHAs) at both the federal and state level offer employers help in sorting out the complexities of putting together an effective drug- and alcohol-free workplace policy.

Federal OSHA outlines five components it considers necessary for a drug-free workplace: a policy, supervisor training, employee education, employee assistance and drug testing.

Drug testing, it says, “must be reasonable and take into consideration employee rights to privacy.”

The federal agency has guidelines available to help resource-challenged small businesses formulate a policy aimed at a drug- and alcohol-free workplace. They include:

  • Drug-Free Workplace Advisor Program Builder. For employers needing to develop a policy from scratch, this guides them through the various components of a comprehensive written drug-free workplace policy. It then generates a policy based on an employer’s specific needs.
  • Substance Abuse Information Database (SAID). This includes sample drug-free workplace policies, surveys, research reports, training and educational materials and regulatory information.
  • Resource directories. These contain current lists of national, state and local resources, including summaries of state laws on workplace-related substance abuse, community organizations that help make businesses drug-free, and help lines for those who have a drug problem.
  • Training and educational materials. These include presentations, articles, fact sheets and posters to help employers provide workplace drug and alcohol education.
  • Workplace Frequently Asked Questions. These are available free of charge.

 

More detailed information for each of the above guidelines is online at: www.osha.gov/SLTC/substanceabuse/index.html

 

The New Zealand example
One good approach to drug and alcohol policies comes from New Zealand. Its OSHA – in simple, practical language – advises employers in that country to:

  • Formulate rules, agreed to by all parties, which apply the same for everyone: employees, contractors and employers.
  • Write the policy clearly and make it available to all in the workplace.
  • Describe steps needed to ensure a drug- and alcohol-free workplace.
  • Enforce the rules “consistently and fairly.”

 

The policy, says New Zealand OSHA, should aim to avoid worker drug or alcohol impairment without discriminating against or punishing employees.

Once formulated, the agency adds, the policy should be part of the company’s official health and management practices in recruitment and training, integrated into its human resources department and widely circulated throughout the business.

 

Workers Who File Claims More Likely to File Subsequent Ones

A new study has found that people who have had workers’ comp claims in the past are more likely to file future claims compared to those who have never suffered an on-the-job injury.

The study – the subject of an article published in the Journal of Occupational and Environmental Medicine – concluded that a past claim is the most predictive factor in determining the likelihood of future workers’ comp claims.

While the findings shed light on a significant driver of workplace injuries, employers are in a difficult position as asking prospective employees about past claims experience is illegal in most jurisdictions.

The main findings of the study, “Reoccurring Injury, Chronic Health Conditions, and Behavior Health: Gender Differences in the Causes of Workers’ Compensation Claims,” are:

  • A higher proportion of both men and women who had filed workers’ comp claims in the past also experienced a subsequent workplace injury.
  • For both genders, a past claim is the most predictive factor in determining the likelihood of filing a future claim.
  • Women who had certain pre-existing behavioral risk factors like depression, poor sleep habits and headaches were more likely to file a subsequent claim if they had already filed one. These same risk factors did not add to the likelihood among men in filing second claims.
  • Future claims are associated with individual workers’ overall health.

 

The takeaway

Besides addressing workplace hazards proactively, anytime you have a workplace injury, you should investigate to determine how the incident occurred. Once you identify what went wrong or broke down in your processes leading to the incident, you can address the problem through new safeguards and training.
Also, if an employee does file a claim, when they are back on the job you should give them additional safety training and attention to reduce the chances of them suffering future workplace incidents.

And what about prospective employees? First off, most states bar employers from asking prospective hirees about any past workers’ comp claims they have filed with previous employers.

The Federal Americans with Disabilities Act, as well as numerous state laws, seeks to protect job seekers from discrimination in hiring as a result of filing valid claims.

The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.

If you are considering trying to obtain past workers’ comp records, you should consult with a labor lawyer before making any moves.

 

 

Ruling May Open Firms up to Prosecution, Employee Suits in Safety Cases

The California State Supreme Court has issued a landmark opinion that paves the way for employees who have been injured at work due to their employer’s violations of Cal/OSHA regulations to sue for unfair business practices and other violations of the state’s Business and Professions Code.

This broadens the scope of employer liability in workplace injuries and steps beyond the workers’ comp bargain that in exchange for having their medical bills and lost wages paid for, employees give up the right to sue their employer for creating an unsafe work environment that may have contributed to their accident.

The California Supreme court – in Solus Industrial Innovations, Inc. vs. Superior Court – ruled that the federal Occupational Safety and Health Act does not bar employees or prosecutors from bringing unfair competition and consumer protection claims based on workplace safety and health violations.

This opens up a new possible area of liability for employers, according to an analysis of the decision by Seyfarth Shaw LLP.

Solus may result in a spike in workplace safety and health litigation against employers,” wrote Joshua M. Henderson, partner in the complex discrimination litigation practice group of Seyfarth.

 

Case background
The case stems from a 2009 incident when two Solus wokrers were killed after a water heater exploded. The equipment exploded when its safety valve malfunctioned and because there were no other safety features on the heater “due to manipulation and misuse,” according to Cal/OSHA.

Afterwards, the California Bureau of Investigations launched an investigation, as it is required to do after workers are killed on the job. It forwarded its findings to the Orange County district attorney, who in turn charged the plant manager and maintenance supervisor with felony violations of the Labor Code.

Orange County prosecutors also filed a civil action, accusing Solus of:

 

  • Violating the state Unfair Competition Law – It alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices
  • Violating the state Fair Advertising Law – It alleged that the company had engaged in false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” in order to attract and retain customers and employees.

 

The DA sought over a million dollars in civil penalties in the lower court case. Solus asked for the trial court to dismiss the case, but the court rejected the motion. On appeal of the decision, the Court of Appeal reversed, saying that the federal Occupational Safety and Health Act pre-empted state unfair competition law, which barred the civil action.

The state Supreme Court ruled that the case could proceed, which sends it back to the local court for hearing. In reversing the Court of Appeal, the high court said that since California has its own workplace safety enforcement mechanism, state law can indeed be used.

The case now goes back to the trial court for action on the DA’s civil claims.

 

Why it’s important
Seyfarth’s Henderson said employers should be concerned because:

  • Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. This means that an employer could theoretically beat back Cal/OSHA citations and still be sued under the Business and Professions Code.
  • An employee or DA could sue a company for Business and Professions Code violations in relation to a workplace injury even if OSHA does not issue a citation. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division.
    Damages are barred under the unfair competition law, but restitution and injunctive relief are not. The bar would be high though, as an employee must prove they had some kind of economic injury.
  • The statute of limitations is four years for unfair competition claims and three years for false advertising claims.