Will OSHA Conduct an Inspection after an Employee Complaint?

OSHA will make inspections of a workplace for a variety of reasons, including following a worker injury and always after a worker’s death.

Inspections may also occur randomly or part of a program aimed at a particular industry that OSHA has decided to target.

The other way an inspection may occur – and the main focus of this article – is if an employee contacts the agency to complain about possible safety violations.

These complaints may or may not result in an inspection of your workplace based on certain conditions, including the timing of the complaint. Under OSHA regulations, a worker can only report an alleged violation.

After OSHA receives a complaint it will decide whether it is worthy of an on-site inspection.

The agency has a set of criteria, at least one of which must be met in order for it to conduct an on-site investigation or an investigation that includes sending the employer a questionnaire to determine if it is complying with its safety regulations.

A current employee or employee representative must submit a written, signed complaint:

  • That includes enough details to help OSHA assess whether the employer is violating its safety regulations or if there is an imminent danger of physical harm to employees.
  • That alleges the worker was injured or made ill by a hazard that is still present in the workplace.
  • That claims an imminent danger to workers exists in the workplace.
  • About a company in an industry that is part of an OSHA local or national emphasis program, or a high-hazard industry that is the focus of such a program.
  • Against an employer that has been cited in the past three years by OSHA for egregious, willful or failure-to-abate citations.
  • Against a facility that is scheduled for or already part of an OSHA inspection.

 

If any of these conditions are not met, OSHA will typically make a complaint inquiry by phone or e-mail.

 

How a complaint inquiry works

If, for example, one of your employees contacts OSHA to complain that you are not using proper lock out/tag out procedures when cleaning certain machinery, the agency would likely contact your company.

It would tell you about the alleged hazard and ask that you assist in determining whether a hazard or violation exists.

During that first point of contact, the agency would ask that:

  • You promptly investigate to see whether the violation does indeed exist and that if it does, you abate the hazard to ensure employee safety and regulatory compliance.
  • After investigating, you document your findings and detail what kind of corrective action you took or are undertaking.
  • You post a copy of the complaint letter from OSHA in a conspicuous area so that all of your employees can see it.

 

OSHA usually requires that you respond with the results of your internal investigation and provide the report of findings and action taken within five days of being contacted by the agency.

If you don’t respond to the initial contact, do not provide a report within five days or if OSHA deems your response inadequate, it may then decide to inspect your facility.

OSHA will also provide a copy of your response to the complaining employee. If the employee thinks you have not made the corrections or have not been honest with OSHA, they can ask the agency to conduct an on-site inspection.

 

OSHA Sets Limits on Drug Testing Injured Workers

Employers are not allowed to have a blanket policy of requiring drug and alcohol tests after a workplace injury as it may discourage injury reporting, the U.S. Occupational Safety and Health Administration has said in an interpretation letter.
It issued the letter in response to a company’s blanket policy after some intoxicated workers had been injured on the job, and it comes as a new OSHA regulation on post-injury testing is slated to take effect at the start of 2017.
These recent actions should spur any employer with a policy of testing its workers post-accident to revisit its rules so they don’t run afoul of OSHA’s regulations.
OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule does not bar employers from drug or alcohol testing its workers, but it does prohibit companies from using such testing or the threat of it as a form of retaliation against employees who report injuries. These new rules were published in May 2016 and will take effect on Jan. 1, 2017.
However, the rules specifically point out that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.
With this new rule the agency is likely to take a hard stance on mandatory post-injury drug testing without a compelling reason.
It is unclear what will happen to employers who enforce post-incident testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.
The rule will likely have far-reaching effects considering that 56% of U.S. manufacturers had such policies, according to a 2012 study by the Government Accountability Office. That same study found that these policies “may discourage workers from reporting injuries and illnesses.”
OSHA says in the rule that employer policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use, according to the final rule.
Examples of instances that OSHA says would not be reasonable to conduct a drug test include:
• An employee who reports a bee sting.
• A repetitive strain injury.
• An injury caused by a lack of machine guarding, or by a machine or tool malfunction.

Under the rule, employers do not have to specifically suspect drug and/or alcohol use before testing, but there should be a reasonable possibility that such use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.
The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing
Employment law attorneys recommend that all employers look at their current policy for post-injury drug and alcohol testing, how that policy is communicated to employees, and what kind of feedback they had when the policy was put into place.

Many Small Businesses Can’t ID Workers’ Comp Fraud

Fraud eats away at workers’ comp costs for all businesses, but it hits small businesses the hardest as they may not have the resources to identify bogus claims.
According to a new study by workers’ comp insurer Employers Holdings Inc., about 20% of small-business owners are not sufficiently prepared to identify workers’ compensation fraud. It’s estimated that at least 10% of claims are fraudulent, so identifying those illicit claims would keep your workers’ comp claims in check and reduce your workers’ comp premiums.
Claims fraud happens when an employee tries to gain workers’ comp benefits by falsely stating that an injury or illness occurred at work, or by exaggerating an existing injury or illness.
“Workers’ compensation fraud is a serious crime that can strain business operations, lead to higher insurance costs for businesses, and even undermine honest workers who are legitimately injured on the job,” said Ranney Pageler, vice president of fraud investigations at Employers Holdings.
The company found:
• 13% of small-business owners are concerned that one of their employees would commit workers’ comp fraud by faking an injury or illness to collect benefits.
• 21% are unsure of their ability to identify workers’ comp fraud.
• 24% of small-business owners have installed surveillance cameras to monitor employees on the job.

The strongest indicators of potential claims fraud noted by survey respondents include:
• The employee has a history of claims (58%).
• There were no witnesses to the incident (52%).
• The employee did not report the injury or illness in a timely manner (52%).
• The reported incident coincides with a change in employment status (51%).

What you can do
Pageler recommends that small-business owners look for the following warning signs:
Monday morning (or start of shift) injury reports. The alleged injury occurs first thing on Monday morning, or late on Friday afternoon but is not reported until Monday.
Employment changes. The reported accident occurs immediately before or after a strike, job termination, layoff, end of a big project, or the conclusion of seasonal work.
Suspicious providers. An employee’s medical providers or legal consultants have a history of handling suspicious claims, or the same doctors and lawyers are used by groups of claimants.
No witnesses. There are no witnesses to the accident and the employee’s own description does not logically support the cause of the injury.
Conflicting descriptions. The employee’s description of the accident conflicts with the medical history or injury report.
History of claims. The claimant has a history of suspicious or litigated claims.
Refusal of treatment. The claimant refuses a diagnostic procedure to confirm the nature or extent of an injury.
Late reporting. The employee delays reporting the claim without a reasonable explanation.
Claimant is hard to reach. The allegedly disabled claimant is hard to reach at home and does not respond promptly to messages.
Frequent changes. The claimant has a history of frequently changing physicians, addresses or jobs.

It should be noted that one of these indicators on its own may not be indicative of fraud, so don’t jump to conclusions.
Employers who suspect a worker may be committing claims fraud should first alert the special investigations unit or fraud unit within their insurance company’s claims department.
The appropriate law enforcement authorities will likely be brought into the investigation, as well, if the insurer deems that the claim may be fraudulent. But that will only happen after the insurance company has conducted its own investigation.