An employee died of a heart attack while at work. It was not caused by his employment. Do I have to report this to Cal/OSHA?
Section 342, Employer Requirement to Report, was codified in 1974 into Title 8. At that time, it was required that fatalities were to be reported to Cal/OSHA within 8 hours. Several revisions and amendments have since occurred, the last major revision happening in January 2015. Nonwork-related deaths or serious injuries now also are to be reported to Cal/OSHA within 8 hours.
There actually are two notification processes involved when a fatality or serious injury occurs. Typically, an emergency response entity is contacted by the employer to render aid to the injured party. This can be the state, county, local fire department, or police agency. This results in what could be the first notification.
Section 342 (b) requires that: “Whenever a state, county, or local fire department or police agency is called to an accident involving an employee covered by this part in which a serious injury, or illness, or death occurs, the nearest office of the Division of Occupational Safety and Health shall be notified by telephone immediately by the responding agency.”
The second notification and by far the most important to the employer is their contacting the Division (Cal/OSHA) within 8 hours of the incident. Cal/OSHA has been notified by the first responders about the time and location of the incident, and particulars regarding injuries to the victim so it is a matter of Cal/OSHA waiting for the employer’s notification.
If not received within the 8-hour time frame, the wheels are set in motion for the issuance of a citation and subsequent penalties.
The employer may encounter circumstances that could delay notification to Cal/OSHA. Due to the federal Health Insurance Portability and Acccountability Act (HIPAA) and medical privacy laws, hospitals will not give out patient information casually to anyone who requests it, including employers. As a result, the employer must search for someone — such as a relative, representative or the like — who can give the employer information about the condition of the employee/victim. The employer is trying to get information so they can give Cal/OSHA a relatively accurate description and prognosis of the victim and accident.
Cal/OSHA has written into the regulation means that the employer can use to request an extension of the 8-hour notification time to 24 hours. The regulation states: “If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.”
Exigent isn’t defined in the regulation.
The importance of the notification requirement cannot be understated. An employer put into the position of having to notify Cal/OSHA of an incident that meets the designated criteria of Section 342 (a) should document what is obvious at the incident site as soon as possible and notify Cal/OSHA within 8 hours.
If different or additional and relevant evidence is found subsequent to further investigation, and Cal/OSHA has yet to make an inspection, Cal/OSHA can be notified if necessary.
The requirement for the employer to notify Cal/OSHA of a fatality or serious injury of a nonwork-related incident, even though it occurred at the work site, runs counter to the federal requirement. Federal OSHA is specific that the reporting is to be related to a work-caused injury or death only. Further, work related serious injuries, amputations, serious illnesses, inpatient hospitalization, or loss of an eye are to be reported within 24 hours, not the 8 required by Cal/OSHA.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.