As of March 4, 2016, OSHA issued notice of an increased minimum penalty for failing to report a workplace injury under the injury and illness reporting requirements of 29 C.F.R. § 1904.39.   The new guidelines provide for an increase in the minimum penalty for failing to report a qualifying workplace injury up to $5,000 (up from $1,000).  The guidelines further provide that under special circumstances, Area Directors can increase the maximum to $7,000 to achieve the “necessary deterrent effect” of a serious citation involving a willful violation.

The guidelines include a “safe harbor” provision.   This provision comes into play in situations where OSHA has conducted a Rapid Response Investigation, during which it asks the employer to investigate the incident and provide a report to OSHA describing the circumstances of the incident and responsive action the employer has taken.  OSHA may then conduct a follow-up inspection based on the employer’s written investigative report.   When this procedure is used, the safe harbor says that OSHA will not use the investigation performed by the employer as a basis to cite any condition(s) discovered during that internal investigation.   However, even the safe harbor is limited by a further caveat; the safe harbor will only apply “as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition.”   The actual effect of the safe harbor will depend on how “serious hazard” is defined or interpreted and how OSHA actually applies its guidance.  Employers will be well served by continuing to presume that information contained in the investigation may still come back to haunt them in any subsequent OSHA inspection.


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