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Employers should pay careful attention to their U.S. Occupational Safety and Health Administration injury and illness logs to ensure they are accurately recording safety incidents, particularly in light of an upcoming deadline for certain employers to electronically submit this information to the agency, legal experts said.
In November, OSHA extended the deadline to Friday for employers to electronically submit injury and illness data and said it would publish a final rule reviewing other provisions of the electronic record-keeping regulation in 2018.
The Improve Tracking of Workplace Injuries and Illnesses rule, as the rule is formally known, requires certain employers to electronically submit injury and illness data they already are required to record via their on-site OSHA injury and illness forms. Establishments with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit information on their injuries and illnesses.
Most employers want to ensure they are OSHA compliant and have accurate injury and illness logs, said Bradford Hammock, office managing principal of the Washington, D.C., region office of Jackson Lewis P.C.
“It’s a critical aspect of what you do from a safety and health perspective,” he said during a webinar on Wednesday co-sponsored by London-based legal information provider Lexology. “In addition, over the last 10 years, OSHA has increased its focus on the accuracy of recording of injuries and illnesses.”
Employers must answer a basic but sometimes difficult question: is an injury recordable? Mr. Hammock said. Not every injury or illness reported by an employee is recordable and certain criteria must be met to determine OSHA recordability, he said.
“So many employers out there, when trying to make the fundamental determination about whether a particular injury or illness is OSHA recordable, simply skip the very beginning of the decision and go right to the end – was there medical treatment, were there days away – without going through in a systematic fashion whether all the criteria for recordability have been met,” Mr. Hammock said.
Employers must first determine if there was even an injury or illness and if so, if it was work related, he said.
“Obviously, this is where many of the questions come up,” Mr. Hammock said. “OSHA has adopted a geographic presumption for determining whether an injury or illness is work related under the rule.”
Employers should ensure their recordkeepers are properly trained, he said.
“Do not rely on them to simply pick up a book, read the rule and proceed to implement it,” he said. “Spend some time to train them in all of the nuances of this part of the rule because it’s highly critical.”
Some employers have engaged a multi-disciplinary team that analyzes recordability questions regularly and makes a combined judgment on recordability, he said.
On site visits, OSHA inspectors will usually ask to see the employer’s injury and illness logs and may even interview employees to find out if there were any injuries or illnesses not recorded on the logs.
“Understand that OSHA will err on the side of recordability,” Mr. Hammock said.
OSHA has issued more than 50 interpretation letters on recordkeeping, including one in which an employee was injured while participating in go-cart racing, which occurred during an off-site team-building event, said Tressi Cordaro, a shareholder with Jackson Lewis, based in Reston, Virginia. OSHA’s letter indicated the injury was recordable because the employee was at the go-cart facility as a condition of employment.
“This is information that can help you determine whether something should or should not be recorded,” she said, adding that OSHA will rely on these letters to cite employers for recordkeeping violations. “OSHA is going to hold you to those interpretation letters.”
OSHA’s electronic record-keeping rule includes language against employee incentive programs that discourages employees from reporting injuries and illnesses. The agency has issued a few citations against unnamed employers with incentive programs in which employees were penalized for injury and illness reporting, including one employer whose employees who did not report lost-time days received bonuses while those who reported them did not get bonuses.
“The bottom line question is, is the program or the policy you have in place somehow either directly or indirectly discouraging employees from reporting injuries and illnesses?” she said, adding that employers and employees can disagree about whether that actually occurs.
If supervisors receive bonuses when there are no recorded incidents in a month, are they indirectly influencing employees not to report or seek medical treatment for injuries and illnesses? Ms. Cordaro said.
“OSHA’s going to say that’s because (the supervisor) is getting a direct benefit,” he said. “Think of other measurements … for performance appraisals for supervisors and those in management.”
Employers should not consider these logs to be static documents and should have a procedure in place to review and update them every three months and also use them to identify risks and improve safety and health in the workplace, according to the lawyers.
“Don’t just record and let it be,” she said. “Look for patterns in your recordkeeping.”
Federal workplace safety regulators have cited a Connecticut construction contractor for exposing workers to mercury and respirator hazards and have proposed $329,548 in total penalties.