Amputation

OSHA Expands “Instance by Instance” Citation Policy: A Game Changer for OSHA Enforcement

Eric J. Conn Leave a comment

By Eric J. Conn and Darius Rohani-Shukla

On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country.  Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.

Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties.  It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc.  As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.

Historical Per-Instance Enforcement

OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.”  This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful.  Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →

Unlock The Mysteries of OSHA’s Lockout/Tagout Standard [Webinar Recording]

Eric J. Conn 2 Comments

On February 20, 2018, Eric J. Conn and Aaron R. Gelb of the national OSHA Practice Group at Conn Maciel Carey presented a webinar: “Unlock The Mysteries of OSHA’s Lockout/Tagout Standard.”

OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right.  While LOTO continues to be an important standard, it also continues to be one of the least understood standards.  This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.

During this webinar, participants learned: Continue reading →

OSHA’s Fatality, Hospitalization & Amputation Reporting Rule: Lessons Learned [Webinar Recording]

Lindsay A. DiSalvo Leave a comment

On November 14, 2017, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s Fatality, Hospitalization & Amputation Reporting Rule.“

In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule.  Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.

The rule has resulted in thousands more reports of incidents to OSHA than before.  Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.

During this webinar, participants learned:

Continue reading →

Slicing the Nuances of OSHA’s Amputation Reporting Requirements

Lindsay A. DiSalvo 3 Comments

By Eric J. Conn and Lindsay A. Smith

Under OSHA’s new injury and fatality reporting rules, amputations have become a specific type of injury that must be reported to OSHA, regardless of whether the employee is hospitalized.  Specifically, OSHA amended its reporting rule at 29 C.F.R. 1904.39 (“Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA”) to read, in pertinent part:Reporting 3.JPG

“Within twenty-four (24) hours after … an employee’s amputation …, as a result of a work-related incident, you must report the … amputation … to OSHA. . . .  For an … amputation …, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident.”

The long and short of the new reporting requirement is that an amputation constitutes an automatic report to OSHA even if it does not result in a hospitalization or any days away from work, or even require medical treatment beyond first aid.  There are, however, several key nuances that employers must be aware of before they pick up the phone to call OSHA.

What Types of Injuries Should be Reported as an Amputation?

As an initial matter, an employer must understand what constitutes an amputation.  The rule defines “amputations” as:

“[T]he traumatic loss of a limb or other external body part.  Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”

Although this definition may seem straightforward, there is ambiguity around the distinction between a “partial amputation” and an avulsion or laceration.  Based on OSHA’s definition, the term “amputation” would require Continue reading →