In this episode of our Safety Perspectives From the Dallas Region series, John Surma (Houston) and Frank Davis (Dallas) delve into the intricacies of OSHA's Rapid Response Investigation (RRI) letters and the emerging trend of OSHA's use of email questionnaires that the agency doesn't treat like an RRI letters. Frank and John discuss the implications of these communications, how employers can respond, and the potential legal ramifications of responding to these communications, providing valuable insights for navigating OSHA's investigative processes.
Transcript
Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.
Frank Davis: Hey, good morning, everybody. And welcome to another installment of the Ogletree Dallas Region OSHA Safety Podcast. I'm happy to be here with you this morning. I've got my law partner, John Surma, broadcasting live from the Ogletree Tower in Downtown Houston. Good morning, John.
John Surma: Good morning, Frank. And it is Ogletree Central here in Houston. And I hope that wherever you're podcasting from and that may well be Davis Central in the Dallas area, I hope you're well. And looking forward to another podcast with you.
Frank Davis: I'm glad we have this time to visit this morning, John, because I want to talk to you about a recent innovation that I've encountered within the last few months. You're familiar, of course, with the RRI letter, right?
John Surma: Yeah. The Rapid Response Investigation letter, where after you've submitted a serious event report, whether you've done it online or by calling the area office or 800-321-OSHA, somebody from OSHA generates a letter asking the employer to engage in an investigation to determine what happened. And what steps the employer is going to take to prevent similar incidents from happening in the future, if that's appropriate. I just wrapped one up in a couple of pretty bad accidents, actually.
Frank Davis: Yeah. And I've found recently that OSHA was really going to the RRI letter in response to employers self-reporting hospitalizations and other reportable events. I've found that OSHA was really increasing those, especially last year. The alternative to an RRI letter is obviously the opening conference, the inspection. So, the two swings that we usually see as an employer, employer calls in a reportable event, and OSHA says, “Okay, I'd like you to complete this RRI questionnaire and give us these answers.” And they send the letter and that letter says, “If you don't answer this, then we'll conduct an inspection. If you answer this, we may still come out to make sure that you've engaged in the abatement that you did.” That's what the letter says in essence. Alternatively, you don't hear back from them, and then they show up and do the inspection. If it's at a location where they can find on their own, if you're a construction site or at a temporary work site, they may call to organize a visit when they can get everybody there.
John Surma: Recently, I don't know, it may just be my cases, my clients, because some of these have been in out-of-the-way, remote locations. But they've actually been calling me beforehand on the last three serious event reports we've had, where they actually did go to an on-site inspection. They actually called beforehand because they weren't exactly sure where the facilities were located. And I don't know if it's because we've got inexperienced folks or they're trying to be efficient with time or what. But they actually, surprisingly enough have called.
Frank Davis: Right. But either way, we've had these typical two choices. It's an RRI letter, or they're initiating an inspection. I have encountered recently through clients, indirectly through clients, where OSHA has taken a third approach. I call this the phishing approach, where they will actually send an email that looks a lot like a questionnaire from an RRI, but they don't end up treating it like an RRI.
John Surma: Well, that kind of sounds like phishing, P-H-I-S-H-I-N-G, and not fishing expedition, as in something we used to talk about in discovery disputes, where that discovery question was nothing but a fishing expedition. And I have seen that, as well. And I don't really like that email, and I'm not particularly comfortable with that email. What are your thoughts about that email, Frank?
Frank Davis: Well, I think the jury's still a little bit out, because I've seen successful conclusions where an employer responds to it, and they do not conduct the inspection. But I've also seen it where they do take that information that you provide as though you're responding to an RRI letter, and they initiate an inspection. I think it makes it a more difficult call whenever you get the request for information without the RRI representation, that basically, if you respond to this, we'll only inspect to make sure you've taken the corrective actions. Because part of that email that comes out is what corrective actions have you taken. And the problem with answering that part, if OSHA is going to go in and open an inspection, is that they will use that corrective action as evidence that you weren't proactive.
John Surma: Do you mean like an admission against interest?
Frank Davis: Like an admission against interest, yeah, kind of
like that. But what I was really thinking about is post-remedial
actions, falling on accident, typically are not discoverable in
traditional litigation. We've always had that exception under
the rules of evidence, because what you wanted to do is encourage
employers to correct hazardous situations. And so, the reward for
correcting the hazardous situation is that it would be excluded
from litigation. What I'm focused on is that post-remedial
correction that you make. In the RRI letter, when you're
responding to an RRI letter, if you don't have good
abatement, if you don't have a good response to the accident
to make OSHA feel good that there's not going to be a repeat
of that injury, then OSHA is more likely to come out and conduct an
inspection. So, withholding that corrective action from an RRI
letter can result in an inspection.
But the contrast here is this pseudo request for information that
looks like an RRI letter. And you want to try to answer
OSHA's questions with the goal that they don't feel
like they need to come out and inspect. But if you do, and you
answer that abatement language, this is my concern now, John. If
you answer that abatement question, what'd you do to correct
it, it tacitly suggests that you've determined the root cause
and that you've taken action to correct the root cause of the
accident.
And now, if you've provided that to OSHA in the context of
thinking or responding to an RRI letter and OSHA says, “Yeah,
I don't think that's enough,” or if OSHA says,
“Yeah, I think I want to go inspect it,” now they have
a little better roadmap to try to find a problem or a violation.
Where you're answering these things in good faith, thinking
that OSHA is not interested in progressing into an inspection, and
then all of a sudden here you are. It's not an RRI situation,
but it's an opening conference. And it's a sneaky
back-door way for them to get that information, I feel like.
John Surma: Well, I agree with you, Frank. And I mean, honestly,
that's a concern with even complaint letters. Because I mean,
look, let's face facts, some complaints that are brought to
OSHA's attention are legitimate. I mean, there are instances
where it's not just a hacked-off employee who is filing a
complaint because they're upset about their employer doing
something in the way of an adverse employment action or even just
some sort of irritation with a supervisor, or co-worker. Some of
those complaints actually have some merit to them. And typically,
at least when I do these responses, when I find that there's
merit in those complaints, I want to bring forth that, look,
we've corrected these situations. We've done all that
any employer can be expected to do. Here are the things that
we've done, boom, boom, boom, boom, boom, and kind of moved
on.
And typically speaking, I don't think OSHA really views the
juice is being worth the squeeze when you self-identify in your
response to the complaint, that there was some legitimacy to the
complaint. And that you took action to fix those legitimate items
that are part of the complaint or what you perceive as legitimate
items. I do think there's some risk associated with that, as
you're kind of tacitly… Well, you're not
tacitly, you're explicitly stating. But I don't think
OSHA really views it as the juice being worth the squeeze.
I do think, however, with the phishing email as you described, or
as you define that term, and even quite frankly lately with RRI
responses, I think that OSHA is looking at them almost from the
perspective of what can we do to justify opening an on-site
inspection and how much information can we gather. Almost like a
phishing, P-H-I-S-H-I-N-G, email leading into the inspection so
that we can essentially economically handle this and do this in
half a day or a day, as opposed to a full day or several days.
Frank Davis: I think that's right. I think that analysis is right, that they are looking to be more efficient. They're looking to try to get more information in advance. So, whenever they do go in, in this type of situation, so that when they do go in, they know exactly what they're looking for, so they can document it more quickly and move on to the next inspection. Because as you and I have talked about in previous podcasts, this year has seen a significant uptick in the number of inspections and the beads with which they're turning them over.
John Surma: And separate and apart from what the administration's been doing, even leading into this year, a lot of the area offices were way down in headcount. I mean, we've talked about this before, Austin being down prior to the end of the year to three cow shows that we're actually going out in the field doing inspections. So, anything they can do to make the process more efficient and more effective, I understand why they're doing it. And the thing that I'm concerned about with both the RRI and the phishing email, as you described, is I think more and more these are less a tool to bring complete resolution to these matters with an effective response. And more a tool to gather information to prepare them to come in and do the actual inspection.
Frank Davis: So, how is it changing your response to these early inquiries?
John Surma: Well, I'll be curious to hear what your
response to this is. But my response is this: And I have always and
probably always will be very comprehensive in my responses to any
inquiry from OSHA. That might not mean I give them a lot of
information, but I'm very comprehensive in how I describe it.
So, we explained that we've even done an investigation and
that these are the outcomes of our investigation. And I'm
very prescriptive on the things that we've done to effectuate
remediation, abatement, whatever term you want to use, of the
condition at issue with the complaint responses because
they're simply a complaint response. And I'm fairly
confident that if we give a good response, I'm going to shut
this down. I try to provide as much documentary evidence as
possible.
But with the RRI response and with the phishing email, I'm
pretty careful to say that, look, this is based on preliminary.
This is part of a series of continuing investigations. Typically,
say they're attorney-led, and privileged, and we can't
share a lot of the details. Here's what we can share. And
then I share as much as I can. And I'm really as
comprehensive as I try to be with my complaint response. I'm
over the top with these responses in terms of the granularity of
explaining why this situation will not crop up again, because this
is what we've done.
And I explained how it's reasonable, and appropriate, and
entirely responsible for the employer to have done these things.
And quite frankly, I try to emphasize that a reasonable employer in
my client's position would not have foreseen that this
situation would've cropped up, and this situation was
essentially the first notice they had that this situation could
arise, and therefore they've now implemented these additional
steps.
Frank Davis: Yeah. So, I agree with everything you said. I think
that it's critical to make the effort to try to resolve the
concern, because OSHA is busy, OSHA is understaffed. And I think
you've got a good chance of closing out a case
without… you lessen your chance of getting an inspection if
you give that good comprehensive answer. I guess that my next
level, though, as I start thinking about it, is going back and
bringing in our emphasis program discussions we've had in the
past. Are there emphasis program flags, let's say, that
should get more attention? For instance, powered industrial trucks.
So, if you've got an accident involving a powered industrial
truck and you get one of these, it's rude to say it now, but
I'm just calling it a phishing email to distinguish between
an RRI and an opening conference. If you get a phishing email on an
emphasis program, does that change the way you think about
it?
And I'll answer first, because I think it has begun to change
the way I think about it now. While I still agree that you want to
give an effective answer in response to those preliminary
questions, the likelihood of being inspected for an emphasis
program inspection is much higher than your unusual type of injury
where… Of course, I'm blanking on one. But
that's not an amputation, that's not a forklift
accident, that's not something that's on their emphasis
program list. It seems that you probably have a better chance of
getting it closed out on an item that's not an injury
that's likely to repeat itself in the first place, somebody
pulling on a rope, the rope breaking, and them falling down.
But you start talking about an amputation. And while you and I both
have recently seen RRI letters for amputations, and we are
surprised by it. I think if you get one of these phishing emails
involving an amputation, I think I'm going to think about it
differently going forward. I'm going to think this is really
a precursor to an opening conference where they're phishing
for some information.
John Surma: Oh, absolutely. I mean, look, amputations have always been and will always be, as far as I know, an emphasis program. So, I mean, every amputation I expect that's going to turn into an inspection, or it could turn into an NEP inspection. That's always in the background. But I kind of look at two things.
Frank Davis: NEP being National Emphasis Program?
John Surma: I'm sorry, yeah. And thank you for mentioning
that, Frank. I look at two things. So, I look at what emphasis
programs the case could fall into, and then I also look at
essentially the top 10 OSHA citations. And if it falls into either
of those categories, and there is a fair amount of overlap there,
then I prepare myself a little bit differently. I don't know
that my response is massively different, but I tend to think about
it differently. And I tend to be thinking more globally about what
the emphasis program looks like or what the citations under those
top 10 lists look like and trying to navigate the response away
from those areas.
Obviously, somebody has a hand amputation. Just in describing the
nature of the injury, it's pretty hard. I mean, you
can't just say hospitalization. I mean, there's a blank
for amputation. You've got to list it there as an amputation.
So, there are certain things you just can't avoid. But I
mean, where I can craft a story that shifts the focus away from
either the emphasis programs or the top 10 violations, that's
what I try to do. And obviously, that's not always possible,
just due to the nature of the injury or the circumstances
involved.
Frank Davis: I think that's a great analysis, John. I agree. For me, it becomes more of a tightrope walk. Whatever gets in those emphasis programs, you still want to try to get to the same point, I agree, that they get OSHA to see that. Just less reliable in some circumstances. Maybe even less reliable and with regard to some area offices, but I'm not going to start naming those off here.
John Surma: I think you raise some really good points. The one
thing I would say, and I'm curious what your thought is, when
I get one of the phishing emails, when I get the RRI… Let me
back up. When I get the RRI, after we submit the serious event
report, when we get the RRI, I tell the client, okay, look, you can
breathe a little bit. They're not going to come out and do an
inspection today or for the next five days, or seven days, whatever
it is they're giving you to give you the RRI response,
because they're going to wait for you to give them that
response. But take this time to get the ship in order. If
you've got fire extinguishers that are outdated, if
you've got eye washes that haven't been flushed, your
OSHA records, et cetera, go ahead and get yourself prepped in that
time and be ready in case an inspection does happen.
And I'm curious what your thoughts are, Frank. When I get the
phishing email, when the client gets the phishing email, I tell
them immediately, okay, look, you got to be prepared to have an
inspection. It could happen yet minutes after we send this email.
So, get out there and really go full force at all the things we
would do to get ready for an inspection in a normal case. Fix the
low-hanging fruit, get your 300 logs together, get your 300As
together. Just be prepared for an inspection, because even if it
doesn't happen, if it does happen, you're going to have
so little notice. You're going to want to be able to roll
into it halfway prepared. I don't know what your thoughts
are, what your practices are. That's just what I do.
Frank Davis: No, I mean that's good advice anyway. You
have an event. And right after the event when you're having
to report it, I'm always inclined to do a little bit of
reasonable preparation, check the fire extinguishers, make sure the
exit doors aren't blocked. Maybe be careful about spoiling
evidence. I'd want to consult my legal counsel about anything
that might be considered evidence, foliation, internal, external or
spousal, whatever your source of legal information happens to be.
That's what I would want to do. But I think that's a
good point. It's a good opportunity to get squared away no
matter what, whether it's an RRI, a complaint, or a phishing
letter. The number of days, too, I think can make a difference in
knowing whether it's a precursor to an inspection or whether
it's a real RRI letter opportunity, because the RRI, the true
RRI letters tend to give you more days to respond, I think.
Five days is kind of a common length. I've seen a lot of
inquiries that were disguised as RRI inquiries, that said, I need
your answer tomorrow. Especially, and it's a state-planned
state, but it's within our region here, I've seen a lot
of that in New Mexico where they say, “Hey, tomorrow's
the day I need your response.” Well, it's 4:00 today
and you want my response within 24 hours. That's pretty
aggressive. But that's enough to, I think… typically
would put me on notice that an inspection is really possible. Maybe
not always in New Mexico, but certainly in other jurisdictions. If
you get that letter, if I see that letter, especially in a federal
jurisdiction, I'm more inclined to go with what you just said
and think, yeah, I'm likely to get inspected because the
clock is short on this. They're interested in making sure the
scene doesn't devolve too much before they can get there.
John Surma: Oh, I agree completely. And I also would say this: When you have those shorter windows, a lot of times figuring out what the corrective solution is, implementing it, et cetera, is a whole lot more difficult than when you have the five to seven days that you often get with the RRI. And you have five to seven days. You can think things through a little bit. But if you only have 24 to 48 hours to figure out what happened, implement or figure out what the right solution is, and then implement that solution, I mean you may or may not be able to get anywhere close to complete. And that's another challenge that goes with those phishing emails.
Frank Davis: Yeah. No, that's exactly right. John, I appreciate you taking time to talk this through with me today. It's been something that's been bothering me for the last few days, so I'm glad we had an opportunity to talk it through. I'm glad we had an opportunity to share our thoughts with everybody listening today. So, thank you much. Hope you have a good rest of the week, weekend, and year. And I will catch up with you next time.
John Surma: Hey, Frank, thank you so much. Sounds good, and look forward to talking to you next time.
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