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Ms. Pohlid

Hospitality Law

OSHA Recordkeeping Requirements: A Synopsis of Current Requirements and Proposed Changes

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

Would you be interested in knowing the workplace injuries of your competitors? Are you comfortable with the public having access to your establishment's workplace injuries and illnesses? Get ready as this will likely happen soon.

Last year, OSHA issued proposed rule changes which will require large employers, with 250 or more employees, to electronically report their workplace injuries and illnesses to OSHA. Whereas, smaller employers, with 20 to 250 employees, will only be required to electronically report their annual summary. OSHA's deadline for the public to submit comments to its proposed rule has passed and OSHA is currently considering the comments it has received before any final rule is promulgated.

On November 7, 2013, Dr. David Michaels, Under Secretary from OSHA, explained the impetus for the proposed rule: "Today we learned from the Bureau of Labor Statistics that three million American workers in the private sector suffered a serious injury or illness on the job in 2012. In some industries, more than one in twenty workers are injured every year. This should not be acceptable in the United States today."

Currently, OSHA sees only a small portion of the record-keeping reports for employers. Although many employers are required to maintain OSHA record-keeping reports, only a sample of those employers across the nation are required to submit their reports to the Bureau of Labor Statistics. OSHA typically inspects record-keeping reports during every inspection it conducts. However, there are only about 2,400 OSHA inspectors and almost 8 million workplaces. OSHA estimates that it would take 100 years to inspect to every workplace just once.

The proposed rule is anticipated to facilitate OSHA's ability to focus on areas where the concerns for workplace injuries and illnesses are the greatest. Some commentators have expressed concern that the proposed rule will create further incentive for employers to under-report injuries and illnesses. Instead, OSHA anticipates that the proposed rule will enhance enforcement capabilities, enabling federal and state enforcement agencies to better target activities, focusing on establishments with higher incidents of workplace accidents, injuries and fatalities.

The proposed rule will not impose any additional requirements on the information which employers are required to maintain or report, but it poses significant implications for establishments beyond OSHA enforcement. Under the proposed rule, employers will be required to timely report the information electronically. Once OSHA obtains the information, it intends to make this data available to theublic via the Internet, after removing employee identifying information. The fact that this information will be available to competitors, insurers, customers, and other entities, provides incentives for employers to give attention to their record-keeping and safety programs. Establishments should be prepared for the data to be used as a comparison for their performance against others in their industry. This can have profound implications for an establishment's ability to hire the best employees and to attract customers, investors, and business.

The record-keeping requirements are imposed by the Occupational Safety and Health Act of 1970, which requires many employers to keep a record of workplace injuries and illnesses. The OSHA record-keeping standards 29 C.F.R. §1904, for states with federal enforcement programs, and 29 C.F.R. § 1952, for state approved enforcement programs, are intended to help employers and employees identify hazards and prevent injuries and illnesses. However, unless an OSHA inspection occurs, OSHA is not likely to see the record-keeping data maintained by most employers. This will change with the proposed rule.

The federal record-keeping rules require many employers covered under OSHA to maintain an equivalent: OSHA 301 Form, on which injuries and illness incidents are reported within seven days; OSHA 300 Form, or log of work related injuries and illnesses, which is to be completed within seven days; and an OSHA 300-A Form, which is a summary of the work-related injuries and illnesses occurring during the prior year. The OSHA 300-A Form is required to be posted in the workplace the following year from February 1 to April 30. Employers are required to total the number of job-related injuries and illnesses that occurred during the prior year from their OSHA Form 300, and record the total on the OSHA 300-A, which must also be signed and certified by a company executive.

These records are to be maintained for a period of five years. However, the statute of limitations for an OSHA violation is six months. In 2012, the U.S Court of Appeals for the District of Columbia held that the statute of limitations limits OSHA record-keeping violations to the six month period. Employers are cautioned that the Occupational Safety and Health Review Commission determined that the violations were continuing and that other jurisdictions may reach the same conclusion. An OSHA matter may be appealed to the D.C. Circuit or to the Circuit in which the incident occurred.

Additionally, all employers, whether or not they are partially exempt from the record-keeping requirements, are required to report any workplace incident that results in a fatality or hospitalization of three or more employees within thirty days of the incident. Section 1904.39(a) requires that the report be made within eight hours of a fatality incident or in-patient hospitalization. The report must be made either by telephone or in person to the OSHA Area Office nearest to the incident or by calling 1-800-321-OSHA.

Partial Exemption from Record-Keeping

Employers may be partially exempt from record-keeping and, if so, are not required to maintain or report their workplace illnesses and injuries unless specifically requested to do so unless informed in writing by the Bureau of Labor Statistics. The partial exemption applies according to whether the employer is engaged in a low-hazard industry as identified by OSHA, or the total number of employees for the entire company is no more than ten at any time during the prior year. Both full and part-time employees are counted for this purpose.

Employees Subject to Record-Keeping

Unless an employer is partially exempt, they are required to record all work related injuries or illnesses that occur to employees. For reporting purposes, an employer must report this information for any employee on the employer's payroll, including but not limited to senior executives, exempt, non-exempt, hourly employees, managers, part-time and seasonal employees. Additionally, they must also report employees who are not on their payroll, but who they supervise and contract employee who work in areas covered under the OSHA Process Safety Management Standard, § 1910.119.

Recordable Incidents

Employers are also required to report each recordable fatality, injury and illness, that is work related and that is a new case of fatality, injury or illness on both the OSHA 300 Log and the OSHA 301 Incident Report. An injury or illness must be recorded if it meets any of the following criteria:

(i) if it results in days away from work, restricted work or transfer to another job, loss of consciousness or medical treatment beyond first aid;

(ii) if it is diagnoses as a work related injury or illness by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness;

(iii) if it results in a cut, fracture, sprain, or amputation;

(iv) if it involves an acute and/or chronic illnesses, such as, but not limited to, a skin disease (i.e. contact dermatitis), respiratory disorder (i.e. occupational asthma, pneumoconiosis), or poisoning (i.e. lead poisoning, solvent intoxication); and/or

(v) if an event or exposure in the work environment significantly aggravated a pre-existing injury or illness.

Even if the incident is not a new case, it may require updating a previous entry on the OSHA Log. For example, if an incident initially resulted in a serious injury, but later developed into a fatality, the OSHA 300 Log would be required to be updated to report this development. Additionally, an entry must be made if an employee has a preexisting injury or illness which is aggravated by an event or exposure in the workplace and which results in either:

(i) death, provided that it would not have occurred but for the workplace event or exposure;

(ii) loss of consciousness, provided it would not have occurred but for the workplace event or exposure;

(iii) one or more days away from work, or days of restricted work or transfer, provided that it would not have occurred but for the workplace event or exposure; or

(iv) medical treatment in a case where such treatment was not needed before the workplace event or exposure occurred.

If an incident is recordable, the following information is required for each new case entry: the case number; employee's name (unless the incident is a privacy case); employee's job title; date the injury, fatality or illness occurred; the location where it occurred; a brief description; whether it resulted in death or days away from work; the number of calendar days away from work on restricted duty (including weekends and holidays).

Only work related injuries, illnesses or fatalities are required to be reported. Under § 1904.5(a), employers are required to consider an illness or injury to be work related if "an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness." Unless an exception as set forth in § 1904.5(b)(2) applies, work-relatedness is presumed for injuries and illnesses resulting from events or exposures in the workplace. Section 1904.5(b)(2) sets forth the exceptions as follows:

(i) If at the time of the injury or illness, the employee was present in the work environment as a member of the general public, rather than as an employee;

(ii) The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment;

(iii) The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball.

(iv) The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer's premises or brought in). However, if the employee is injured or becomes ill because the food was contaminated by workplace contaminants, the case would be considered work related and reportable.

(v) The injury or illness is solely the result of an employee doing personal tasks unrelated to their employment at the establishment outside of the employee's assigned working hours.

(vi) The injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.

(vii) The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work.

(viii) The illness is the common cold or flu. However, if the employee is infected at work and contracts a contagious disease such as tuberculosis, brucellosis, hepatitis A or plague, it is considered work related and reportable.

(ix) The illness is a mental illness. In order to be considered a work-related mental illness, the employee must voluntarily provide the employer with an opinion from a physician or other licensed health care professional with appropriate training and expertise stating that it is work-related.

As a general rule, if the incident occurred in the work environment and none of the above exceptions apply, the incident must be recorded. For example, even if the incident was an act of nature such as an employee being struck by lightning while walking outside on the establishment grounds, an entry must be made.

Special rules also apply if the incident involves privacy concerns. OSHA requires that the employer substitute the words "Privacy Case" for the employee's name, if the injury relates to an intimate body part/reproductive system, sexual assault, mental illness, HIV infection, hepatitis, or tuberculosis, injuries from needle-sticks and/or sharp objects with blood or potentially infectious material (additional requirements apply under § 1910.1030), or other illnesses if the employee independently and voluntarily requests it.

Since the penalties typically assessed in OSHA matters are often minimal, employers may neglect to give appropriate emphasis to their record-keeping requirements. This is a mistake. Since OSHA requires a company executive to certify the accuracy of records, when incidents routinely appear on the log, OSHA may deem the employer's safety enforcement and priorities to be lacking. Furthermore, employers should not presume that they would be immune from receiving significant citations for record keeping violations. OSHA is not reluctant to impose significant penalties, including those in six figures, when it finds that an employer willfully or repeatedly failed to comply with record keeping requirements.

In 1987, OSHA issued a $2.59 million dollar fine to a meat packing manufacturer for willfully failing to record over 1,038 injuries during a year period. In 2004, OSHA issued a citation for $148,000 in record keeping violations against an automotive facility for allegedly willfully failing to record 98 work-related injuries and illnesses. More recently, in 2012, OSHA issued a $283,000 citation against a facility that packages chocolate candies alleging, among other violations, that it failed to report 42 workplace injury incidents.

These incidents serve as a potent warning to establishments of the importance of giving appropriate attention to their OSHA record-keeping requirements and investigating incidents when they occur to identify potential violations for correction. If the proposed rule goes into effect soon, employers have an extra incentive to ensure their establishments are in compliance with the record keeping rules and that they develop a robust safety program.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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