What exactly happens after you submit an injury report to OSHA? How does OSHA decide which incidents warrant an on-site inspection and which qualify for the often less-consequential Rapid Response Investigation? OSHA defense expert Ian McNeill walks us through the next 24 hours after a worksite injury is reported:
First, OSHA Triages the Report
Following a worksite accident, you are required to report certain injuries to OSHA within eight to 24 hours. Upon receipt of your report, OSHA’s Area Director will sort the report into one of three categories:
- Category 1 reports will require an on-site OSHA inspection.
- Category 2 reports may result in an on-site OSHA inspection at the discretion of the Area Director and depending on the circumstances of the incident.
- Category 3 reports do not warrant an on-site OSHA inspection. Instead, the employer must submit an accident investigation report explaining how the accident occurred and how such incidents can be prevented in the future.
Because each communication you have with OSHA, including the initial injury report, can influence the agency’s decision on how to proceed – and avoiding an inspection is the best-case scenario – it is never too early to seek guidance. Contact an OSHA defense attorney immediately following a workplace incident or OSHA inspection.
Our OSHA defense team can help you manage the flow of documents to OSHA (because not having a required document can be more damaging than an incomplete one) and educate you and your employees on how to interact with OSHA, emphasizing that OSHA is an enforcement agency. We can help you prepare a thorough and accurate response to OSHA without exposing yourself to unnecessary liability, proactively working to reduce the likelihood of citations, fines, and classifications.
OSHA Criteria for Category 1 Reports
Category 1 reports are the most serious since there is a high likelihood that an on-site inspection will lead to a citation. Category 1 applies if any of the following conditions are met:
- A fatality
- Accidents that result in two or more in-patient hospitalizations
- Any injury involving a worker under 18
- The employer having a history of the same or similar hazards within the past 12 months
- Accidents involving repeat offenders
- A hazard covered by a local, regional, or national emphasis program
- Accidents involving imminent danger OSHA will also conduct an on-site inspection if the employer is part of its Severe Violator Enforcement Program (SVEP).
OSHA Criteria for Category 2 Reports
If the report does not meet any of the Category 1 criteria above, Area Directors have the discretion to determine whether the incident calls for an on-site inspection or if it can be addressed through the agency’s often-less-consequential Rapid Response Investigation (RRI). The RRI process was introduced in 2014 to deal with the large volume of employer reports and allows employers to self-investigate the incident.
Area Directors base their decision on their knowledge of the incident and in consideration of the following, non-exclusive list factors:
- Are employees still being exposed to the conditions or underlying hazards that caused the injury or illness? If so, what corrective measures were taken and how quickly?
- Can complete abatement of the reported workplace condition be implemented before an inspection is conducted?
- Was the incident the result of a safety program failure?
- Was the employee exposed to a serious hazard, such as an explosion, combustible dust, or fall?
- Were temporary workers affected by the accident?
- Has another government agency at the local, state, or federal level made a referral regarding the reported incident?
- Does the employer have a history of OSHA inspections and violations?
- Have there been whistle-blower complaints or investigations involving the employer?
- Is the employer an OSHA Cooperative Program participant?
- Did the incident involve health issues like chemical exposures or heat stress?
OSHA Criteria for Category 3 Reports
If upon review of your report and consideration of the above factors, the Area Director decides not to conduct an onsite inspection, your report is designated Category 3 and qualifies for a Rapid Response Investigation (RRI).
What Is a Rapid Response OSHA Investigation (RRI)?
During an RRI, the employer is asked to initiate its own investigation into the reported incident and “make any necessary changes to avoid further incidents.”
Expect a phone call from the Area Director or their designee, which usually occurs the morning after an accident. The intent of this call is to gather any missing information about the circumstances of the incident and to explain the actions the employer must complete as part of the RRI process. These instructions are also included in a letter from OSHA.
Key components to an RRI include:
- The employer’s internal investigation and results in a written document;
- Abatement verification; and
- Posting a copy of the RRI letter from OSHA in a conspicuous place where all affected employees can see, or near the location where the incident occurred.
You must conduct and present written results of your investigation and abatement verification within five days of receiving the call from OSHA that initiated the RRI, although you can request an extension.
While this process does give you more control over the situation, it is not a free pass. If OSHA is dissatisfied with your accident investigation report and the remedies you have implemented, the agency may still decide to conduct its own inspection and issue a citation related to the incident. Your investigation report can even be used as evidence against you, and therefore should be crafted carefully and advisably under the advice of legal counsel.
Please also be aware that any written statements to OSHA are “discoverable” by plaintiffs’ attorneys should a workplace accident lead to personal injury litigation.
How to Prepare for an On-Site OSHA Inspection
If your incident report falls into Category 1, or Category 2 and an on-site inspection is warranted, OSHA will usually conduct an on-site inspection within five working days of the initial report, or sooner for fatalities and other catastrophes.
At Hendershot Cowart P.C., we can help you through the entire OSHA reporting and investigation process after a workplace accident and prepare your defense should an investigation result in a citation. We have been protecting the legal rights of employers with seasoned counsel for more than 30 years, resulting in a strong record of successful outcomes for our clients.
The first 24 hours after a workplace accident are crucial. Contact us before you call OSHA and give us a chance to exceed your expectations – we are always available to help at (713) 489-2028 and online.