Are You Prepared for OSHAs Recordkeeping National Emphasis Program

November 4, 2009
The Occupational Safety and Health Administration has launched its long-awaited Recordkeeping National Emphasis Program. National emphasis programs are national enforcement initiatives that focus the attention of OSHA inspectors toward particular industries or hazards. The yearlong Recordkeeping National Emphasis Program, which went into effect September 30, 2009, will subject employers in certain industries to comprehensive injury and illness records reviews. The ramifications are likely to be more extensive, however, and all employers should take notice. OSHA is determined to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the work site. Be it as part of this program or in other inspections conducted by the agency, OSHA will be scrutinizing employers’ record-keeping practices carefully.

The most intrusive inspections ever?
The record-keeping inspections under the National Emphasis Program may be the most intrusive ever conducted by the safety agency. Among other things, OSHA inspectors are required to:

1. Review medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters and disciplinary records pertaining to injuries and illnesses. Note that inspectors also are required to review records that are stored off-site.

2. Independently reconstruct OSHA record-keeping log entries for employees. This OSHA-created log will be compared against the employer’s logs.

3. Visit any off-site medical clinic to review medical records pertaining to the employees being investigated. Again, OSHA inspectors are not just going to stay at the establishment targeted in the inspection. They will go off site to ensure that they have access to, and review, all relevant records.

4. Interview the designated record keeper. The inspectors must ask about and note whether there are any company policies that may have the effect of discouraging recording on the injury and illness records. An example would be if an employer had an awards program tied to the number of injuries and illnesses recorded on the OSHA log.

5. Interview a sub-sample of employees. Key questions will include: “Have you ever been encouraged to not report an injury or illness or been encouraged to report an injury or illness as a non-work-related event or exposure?” “Are there any safety incentive programs, contests or promotions or any disciplinary programs here?” “Do these—or anything else—affect your decision whether to report an injury or illness?”

6. Interview management representatives regarding the manner in which injuries and illnesses are recorded and determine the existence of incentive or disciplinary programs that may influence record keeping.

7. Interview first-aid providers and other health care professionals. This interview will also seek to determine the extent to which employers may influence medical treatment of injured employees for the purposes of modifying OSHA recordability.

8. Perform a limited walk-around of the main plant operation areas. The purpose will be to check for consistencies between the recorded injuries and illnesses and any violations observed in plain view.

How do companies ensure they are “record-keeping compliant”?
Employers cannot bury their heads in the sand and hope that OSHA will not arrive at their doorsteps. Instead, companies must take time now to review their records and their record-keeping policies and procedures, and ensure that they accurately record and report injuries and illnesses.

Employers should compare their practices to the key OSHA record-keeping principles: the “Great Eight.” Following these core principles will help ensure full compliance with OSHA’s record-keeping rule:

1. Understand that OSHA will err on the side of recordability. One of the hardest aspects of OSHA record keeping for employers, in many ways, is the most fundamental: determining whether a particular injury or illness is work-related and meets OSHA’s general recording criteria. Employers spend hours examining the circumstances of every injury to determine whether it should be added to their logs. This is appropriate, for not every employee injury or illness is a recordable one, and OSHA wants OSHA logs to be accurate. However, employers should remember that when OSHA comes on site to conduct an inspection and review all relevant records for injuries and illnesses, it will err on the side of injuries and illnesses meeting its recordability criteria. Employers should keep this in mind when there is a close case of recordability. In most instances, OSHA will conclude that the case should have been recorded.

2. Establish weekly meetings to discuss recordability determinations and log entries. Unfortunately, companies make the mistake of relying on just one risk management or human resources person to make recordability determinations and ensure record-keeping logs are accurate. OSHA’s record-keeping rules are complicated. Record keeping should not be trusted to just one person. Instead, companies should hold standard weekly meetings with key risk management, safety and human resources personnel to discuss recordability determinations and ensure that log entries are accurately completed.

3. Don’t make a premature recordability determination. OSHA requires employers to complete the OSHA record-keeping log and the associated incident report within seven calendar days of receiving information that a recordable injury or illness has occurred. Companies should not rush to make an entry on their logs or fill out an incident report. Spend time to do a thorough investigation, gather all of the facts, and then complete the required forms, if needed.

4. Establish a procedure to review and update your logs at least every three months. OSHA’s record-keeping rule requires employers to continually update their logs to accurately reflect changes in the status of injured employees. This is an area where employers typically get themselves in trouble. They accurately record an injury or illness on their log in the first instance, and then, for a host of reasons, the status of the injured employee changes and the employers never update their logs to reflect those changes. Companies must have a set procedure to perform a thorough review of their record-keeping logs at least every three months to ensure that they are making necessary updates to their entries.

5. Compare all of your OSHA record-keeping forms with any workers’ compensation reports or other claims. OSHA often has said an injury may be OSHA recordable, but not compensable under workers’ compensation, and vice versa. Nevertheless, employers who pay a workers’ compensation claim but do not also record the injury on their OSHA logs need to be prepared to explain clearly to OSHA why an injury was compensable, but not recordable. Companies also should periodically compare their workers’ compensation claims against their OSHA logs to identify any undocumented differences.

6. Follow OSHA’s letters of interpretation on record keeping. Since OSHA finalized its revised record-keeping rule several years ago, it has issued more than 40 letters of interpretation clarifying and applying the record-keeping rule to various scenarios. Through these letters, employers are on notice of their compliance obligations under the record-keeping rule as they apply to the scenarios presented. The letters range from the comparatively rare situation (e.g., whether damage to an employee’s dentures is recordable) to the common (e.g., how to record injuries and illnesses when faced with differing medical recommendations). OSHA’s letters are available on its Web site and companies should routinely review them and integrate the guidance into their record-keeping policies and procedures.

7. Review safety incentive programs. One of the key aspects of the new National Emphasis Program is a focus on safety incentive programs. OSHA is convinced that certain common programs (e.g., a “safety bingo” game) create significant disincentives to employees to report injuries and illnesses. Companies should perform a thorough review of their safety incentive programs, disciplinary policies or any other program that could be construed by OSHA to keep employees from reporting. Companies then should examine the extent to which the program or policy may discourage reporting and make any appropriate changes to them. Changes made should be documented in writing.

8. Do more than just record. Record keeping is not just about recording injuries and illnesses. Companies must take the information from their logs and incident reports, internalize it and make changes to the work site to protect employees. Invariably, OSHA inspectors will ask employers what they did to address the underlying hazard that may have caused an injury or illness. Employers should document the steps taken to address hazards that show up on their logs and incident reports and be prepared to talk about these efforts to OSHA inspectors.

We are in a new day and age with OSHA. Record keeping is being elevated to prominence by the safety agency—and will be vigorously enforced. Companies in all industries should take time now to review their logs and their record-keeping procedures to ensure they are fully compliant with OSHA’s record-keeping rule and fully prepared for an OSHA inspection.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.