WISHA Interim Operations Memorandum #96-9-H
 

WISHA Interim Interpretive Memorandum
#96-9-H
Management Responsibility to Investigate "Serious Injuries"

Approved:
Michael Wood, Senior Program Manager
Policy & Technical Services

Date Issued:
September 27, 1996

Background

Employers subject to the Washington Industrial Safety and Health Act (WISHA) have certain broad obligations. WAC 296-24-020(2) establishes employer responsibilities to investigate "accidents that cause serious injuries that have immediate symptoms." Questions have been raised recently in relation to the definition of serious injury, as well as the extent of certain other employer obligations referenced in the standard.

Both WISHA and the federal Occupational Safety and Health Administration (OSHA) have previously addressed similar questions in relation to recordkeeping and classification of violations. The following definition of "serious physical harm" is taken from the WISHA Compliance Manual (IV-B.2.b(2)(c)):

Serious physical harm is defined as impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor.

This definition also serves as an appropriate definition of "serious injury" within the context of WAC 296-24-020(2). It is important to note that such injuries must "have immediate symptoms" before the requirements of the standard would be triggered. In other words, it is possible to be confronted with serious physical harm but still be free from the requirements of WAC 296-24-020(2) because there are no immediate symptoms.

However, if there are immediate symptoms, it is clearly within the overall intent of the standard that the phrase "serious injuries" be interpreted broadly and the employer's obligations enforced. This interim memorandum provides guidance to WISHA consultation and compliance staff in relation to this standard until a formal directive on the subject can be issued.

Policy

  1. WISHA staff must apply WAC 296-24-020(2) to any workplace accident under WISHA, (regardless of whether the workplace is a permanent location, a transient site, or a motor vehicle, among other options), provided that the definition of "serious injury" described above has been met and provided that there are immediate symptoms.
  2. If it is uncertain whether an injury is indeed serious, WISHA staff should focus on what the employer reasonably knew at the time of the accident. If the employer could not have known of the extent of the injury due to the absence of symptoms, he or she cannot be held to the requirements of WAC 296-24-020(2); however, if he or she had reason to believe that a serious injury has in fact occurred, the employer was required meet the demands of the standard consistent with that belief.
  3. In enforcing the requirement of the standard that an "employee representative" be among those present in the investigation, WISHA staff must ensure that the employer has fulfilled his or her obligations under the standard:

    4. a. The employees must be represented in the investigation, which in turn must occur shortly after any "emergency actions" have been completed.

    b. If the employees are represented by a union, the employer must accept the union's designation of the appropriate employee representative (this is implicit in the standard's allowance of alternative representatives -- if the employer selected the employee representative, no such allowance would be necessary).

    c. Although the standard allows the use of an alternate representative in cases where "the employee representative is the business agent of the employee bargaining unit and is unable to participate without delaying the investigation group," this does not relieve the employer of his or her obligation to notify the business agent if he or she is the employee representative (without at least an effort to do so, it is impossible for the employer to determine that the business agent is in fact unavailable to participate without delaying the investigation).