Articles | Cases

OSHA recordkeeping violations cause financial pain
How to avoid common mistakes

OSHA Administrator, David Michaels, has made it clear that accurate recordkeeping and reporting will be rigorously enforced as an integral part of reducing workplace injuries and illnesses. In September, the agency issued 83 willful citations and $1.2 million in proposed penalties to an air conditioning and cooling manufacturer in Houston for improperly recording work-related injuries. The investigation determined that the company had either not recorded or failed to properly record the nature and/or duration of 72% of employee injuries and illnesses from January 2008 to March 15, 2010, on its log.

As part of its stepped-up enforcement efforts, OSHA recently issued changes to the recordkeeping National Emphasis Program (NEP) to assess the accuracy of employer-provided injury and illness data. The changes include:

OSHA began the recordkeeping NEP in October 2009. As of Oct. 1, 2010, OSHA has initiated 187 inspections under the NEP. Almost half of the inspections conducted have found recordkeeping violations. The NEP is scheduled to run through February 2012.

Common OSHA Recordkeeping Mistakes

OSHA's regulations on recordkeeping are complex and even conscientious employers can find themselves non-compliant. Arthur Sapper, one of the nation's top OSHA law attorneys, notes that the most common mistake employers make in OSHA recording is misunderstanding OSHA-recordable work restrictions. Employers may assume that an injury is not recordable if the employee is at work and can do part of his or her job or can do productive work in another capacity. However, this is often not the case.

OSHA regulations 1904.7(b)(4)(i) state that "Restricted work occurs when, as the result of a work-related injury or illness: You keep the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work; or a physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job, or not work the full workday that he or she would otherwise have been scheduled to work. For recordkeeping purposes, an employee's routine functions are those work activities the employee regularly performs at least once per week."

Moreover, when a physician requires "light duty," or an employee is in a transitional return to work program, the restrictions must be evaluated in light of the routine functions of the job. If the restriction keeps the employee from performing one or more of his or her routine job functions, or from working the full workday the injured or ill employee would otherwise have worked, the employee's work has been restricted and is recordable.

Another troublesome area is aggravating a non-occupational injury. OSHA's definition differs from what you'd expect or consider common sense. If the aggravation results in a work restriction or medical treatment, the aggravation is significant and recordable, even if the preponderant cause is non-occupational. It is important that both physicians and record keepers understand OSHA's definition.

Sapper points out that OSHA also has created its "own special and highly restricted definition of first aid." Under the recordkeeping regulations, medical treatment is recordable unless it falls within an exception in the regulations, one of which is first aid. All treatments that are first aid are listed in Sec. 1904.5(b)5(i)(C).

Using the illustration of the removal of foreign objects from the eyes with combination instruments called eye loops and magnets, Sapper notes that there is a difference between the list that OSHA defines as first aid and some commonly considered first aid devices. While combination eye loops and magnets are commonly sold to employers as first aid devices, OSHA does not consider the use of such instruments first aid.

There is also considerable confusion between OSHA recordables and Workers' Compensation reporting. While it may seem intuitive that the two should be the same, there are cases that may be compensable, but not OSHA recordable and some cases are recordable but not compensable. For example, while the following may be a gray area for Workers' Compensation, it is recordable according to a 2005 OSHA letter of interpretation:

Scenario An employee knits a sweater for her daughter during the lunch break. She lacerates her hand and needs sutures. She is engaged in a personal task. Are lunch breaks or other breaks considered "assigned working hours?" Is the case recordable?

Response This case must be recorded because it does not meet the exception to work-relatedness in Section 1904.5(b)(2)(v) for injuries that occur in the work environment but are solely due to personal tasks. For the "personal tasks" exception to apply, the injury or illness must 1) be solely the result of the employee doing personal tasks (unrelated to their employment) and 2) occur outside of the employee's assigned working hours. OSHA clarified in a January 15, 2004 letter of interpretation that Section 1904.5(b)(2)(v) does not apply to injuries and illnesses that occur during breaks in the normal work schedule. Here, the exception does not apply because the injury occurred during the employee's lunch break.

These are just a few of the many tricky areas when it comes to recordkeeping. Definitive guidance from OSHA or legal counsel should be sought when in doubt. 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.