Cal OSHA Regulations are our focus. We represent employers and management in Occupational Safety and Health matters.
By Lisa Prince and Fred Walter
[Republished by permission, Cal-OSHA Reporter, April 29, 2005]
Question: How does penalizing employers who fail to report injuries that do not become reportable until two years after the event aid Cal/OSHA in hazard investigations?
Answer: It doesn’t. But unfortunately, Cal/OSHA and the Occupational Safety and Health Appeals Board have taken the position that regardless of the length of time between the two events, employers who fail to report injuries within eight hours of learning that they have become “serious” injuries are in violation of Title 8, California Code of Regulations, section 342(a).
In Walter & Prince, LLP’s December 2003E-zine we discussed the reporting obligation generally and provided some tips on handling this tricky issue. You can see that issue on our e-zine Archives page (www.walterlaw.com). The question arose again when we read an article in the April 8 edition of Cal-OSHA Reporter about a citation issued to the City of Santa Rosa.
In that case a City of Santa Rosa bus driver sustained a neck strain in February 2002 and began conservative treatment. The following June, when treatment had failed to relieve her pain, she underwent surgery. In the process the employee was hospitalized for more than 24 hours for, in the language of the regulation, “…other than observation.”
That hospitalization defined the injury as “serious” and triggered the reporting obligation. Because the city’s workers’ compensation unit was handling the matter it never came to the attention of the people responsible for reporting to Cal/OSHA. In 2005 Cal/OSHA learned of the failure to report only when the employee complained about unrelated workplace issues and mentioned the earlier injury and surgery.
Ah ha! said Cal/OSHA, in so many words. A violation of Title 8 CCR section 342(a)! That’ll be $300, please. (Happily for the city, the failure to report occurred before the penalty was raised to a non-negotiable $5,000.)
We see four problems with Cal/OSHA’s and the Appeals Board’s interpretation of §342(a). First, it exalts the literal language of the regulation over its purpose and common sense. The regulation is intended to bring serious injuries to the immediate attention of Cal/OSHA so that serious and imminent hazards can be discovered and fixed. Mandating that non-serious injuries be reported to Cal/OSHA will only clog an already overburdened system.
Mandating that injuries be reported if and when they become serious sometime in the future is not calculated to help Cal/OSHA identify and fix hazards. Cal/OSHA confirmed this only when it delivered the citation and said that it probably wouldn’t have investigated anyway. Talk about pouring salt on a wound.
Second, this interpretation places a never ending duty on employers to trail all current (and presumably former) employees who have sustained occupational injuries. Should an injury, no matter how trivial at onset, become “serious” because of a future hospitalization, amputation, disfigurement or death, it must be reported. That the employer did not know an employee’s injury became serious is not a defense to this citation.
Third, the flip side of the employer’s eternal duty is Cal/OSHA’s eternal authority to issue citations for failures to report. As this regulation is being applied, Cal/OSHA’s jurisdiction over employers will follow them into their nursing homes.
Fourth, Cal/OSHA ensures adherence to the rule and its authority to issue “gotcha” citations by time-stamping all in-coming calls. Not a bad thing, except when accidents occur on weekends or state holidays. The eight-hour reporting rule applies even when no Cal/OSHA office is open and it is certain that no one will respond to the message until the next business day.
We could go on, but enough. What employers really want to know is how to avoid a citation. Despite the $5,000 price tag for violations of this policy, we still can’t get behind the “report early and often” line of reasoning. We do, however, recommend a review of injury investigation policies. If the policy does not include a procedure for continual monitoring of an employee’s condition following an injury (and we mean a long time following), add one.
If you do have this procedure in place, take a moment to review it. Make sure your supervising employees are aware of it and consider writing a letter to your workers’ compensation carrier asking that it inform you if an employee’s injury becomes “serious.” Putthat letter somewhere safe. It might come in handy someday.
Fred Walter and Lisa Prince are principals in Walter & Prince, LLP, a Healdsburg practice representing employers in Cal/OSHA cases.