Legal Updates

Are Workplace Injuries Under-Recorded? OSHA Is Determined To Find Out!

Employers have been using the Occupational Safety and Health Administration (“OSHA”) log to record workplace injuries and illnesses for years.  OSHA in turn reviews a facility’s OSHA log whenever it conducts an inspection.  This routine process has recently attracted significant attention, as the accuracy of injury reporting has been challenged by a number of different groups.  OSHA is now determined to find out whether employers are accurately capturing all workplace injuries and illnesses.  OSHA’s new focus on accuracy is likely to lead to an increase in citations and monetary penalties.  Employers would be wise to take a proactive approach by addressing any problems with their injury/illness reporting before OSHA shows up at the front gate!

OSHA Injury Reporting

Under the Occupational Safety and Health Act of 1970 (the “Act”), OSHA is responsible for protecting the safety and health of the nation’s workforce.  The Act requires OSHA to collect and compile work-related illness and injury data.

To meet its obligation, OSHA requires most employers with more than ten employees to record non-minor injuries and illnesses on logs maintained at each worksite.  Employers use the OSHA 300 Form, also known as the “OSHA log,” to record workplace injuries and illnesses.  For every work-related injury or illness that requires medical treatment other than first aid, the employer is required to record the worker’s name, the date of the injury or illness, a brief description of the injury or illness, and the number of days the worker was away from work, assigned to restricted duties or transferred to another job as a result of the injury or illness.  OSHA requires employers to post summaries of their logs annually at each worksite and to provide these logs to OSHA and the Bureau of Labor Statistics if requested.

In recent months, the accuracy of injury reporting has been called into question by academic studies, the Government Accounting Office (“GAO”), and OSHA itself.

GAO’s Performance Audit Of OSHA

Between August 2008 and October 2009, GAO conducted a performance audit of OSHA to determine whether the Department of Labor verifies the accuracy of injury reporting and, further, to determine what factors affect the accuracy of employers’ injury and illness records.  GAO published its final report in October 2009 and recommended that OSHA do the following:

1)         Require inspectors to interview employees during records audits (currently employee interviews are optional and are conducted in less than half of the records audits);

2)         Reduce the time between the recording of injuries and the audit of the records (OSHA currently audits injury records two years after the injuries are recorded);

3)         Update the list of high-hazard industries that OSHA uses to select sites for records audits (there are eight high-hazard industries that are not included in the records audit process because the list of high-hazard industries has not been updated since 2002); and

4)         Increase employer education and training.

GAO’s report also identified certain disincentives that may discourage workers from reporting and employers from recording injuries and illnesses.  Disincentives facing employees include fear of disciplinary action, mandatory post-accident drug testing, and safety incentive programs.  The primary disincentive facing employers is the impact that high injury and illness rates have on their workers’ compensation costs.  Significantly, over one-half of the health care providers surveyed by GAO said that they had experienced pressure from company officials to downplay injuries or illnesses, and over one-third said that they had been asked by company officials or workers to provide treatment that resulted in the injury or illness not being recorded even though the treatment was not sufficient to properly treat the illness or injury.

OSHA’s National Emphasis Program

In an effort to address the issue of inaccurate reporting, OSHA recently initiated a National Emphasis Program (“NEP”) under which it plans to focus on the issue of under-reporting by specifically targeting for inspection workplaces with low injury rates which are in historically high-rate industries.

The industries covered by the NEP are:

• Animal (except poultry) slaughtering;
• Scheduled passenger air transportation;
• Steel foundries (except investment);
• Other nonferrous foundries (except die-casting);
• Concrete pipe manufacturing;
• Soft drink manufacturing;
• Couriers;
• Manufactured home (mobile home) manufacturing;
• Rolling mill machinery and equipment manufacturing;
• Iron foundries;
• Nursing care facilities;
• Fluid milk manufacturing;
• Seafood canning;
• Marine cargo handling;
• Copper foundries (except die casting);
• Bottled water manufacturing;
• Refrigerated warehousing and storage;
• Motor vehicle seating and interior trim manufacturing; and
• Pet and pet supplies stores.

As part of this new program, OSHA inspectors are required to interview employees and review medical records, workers’ compensation records, payroll/absence records, safety incident reports, first-aid logs, disciplinary records related to injuries/illnesses, and alternate duty rosters.  In short, the records inspection will be specifically designed to determine whether the OSHA log is accurate, and the inspector will look at many different sources of information to determine whether any injuries or illnesses were not properly recorded.

In addition to the NEP, OSHA is developing other enforcement and quality assurance programs to address the record-keeping issues in workplaces and industries that are outside the scope of the NEP, e.g., the construction industry, Voluntary Protection Program (“VPP”) sites, and Safety and Health Achievement Recognition Program (“SHARP”) sites.  The VPP and SHARP programs identify workplaces that show excellence in safety and health.

More Employer Audits Anticipated

What does all of this focus on injury reporting mean for employers?  Most importantly, employers in the industries covered by the NEP must prepare now for OSHA to interview employees, look at medical records, review disciplinary actions, and generally focus on whether the facility captures all injuries and illnesses, because OSHA is targeting employers in those industries for records audits.  Failure to properly record all injuries and illnesses is a violation, and OSHA can issue citations or fines when record-keeping violations are found.  Generally, failure to record a workplace injury or illness will result in an OSHA citation.  Where there is evidence that the employer had been informed of the record-keeping requirement or deliberately failed to record an injury or illness, a fine of $1,000 per citation typically will be imposed.

Even if an employer is not in one of the industries covered by the NEP, if OSHA conducts an inspection based on a complaint or referral, the employer should expect an increased focus by OSHA on the accuracy of its injury reporting.  Although OSHA has always reviewed the OSHA log as part of an inspection, OSHA is now likely to focus not only on whether the employer has an OSHA log but also on whether it captures all of the workplace illnesses and injuries that should be recorded.

Recommendations For Employers

We recommend that all employers review their OSHA logs and related records to insure that all workplace injuries and illnesses are properly recorded.  In addition, employers should review safety incentive programs, disciplinary procedures, and any company interactions with medical providers to ensure that employees are not pressured to under-report and/or under-record workplace injuries and/or illnesses.  Such issues should be addressed proactively by employers to ensure that all injury and illness recording obligations are being met.  Employers should consider involving legal counsel to ensure that record-keeping and related obligations are legally compliant and to maintain the privileged and confidential nature of this internal review.

Please feel free to contact us if you have questions about the GAO report, the NEP, or OSHA injury reporting in general.