OSHA Recordkeeping Update

Jim Shelton, CAS, HNAO

Topics

• New Proposals• National Emphasis Program• Significant Cases• Incentive Programs• Recent Interpretations• Recordkeeping and Offshore

Work• Recordkeeping Resources• Looking towards 2012

New Proposals

• NPRM June 22, 2011– Change reporting requirement to workplace

fatalities and all in-patient hospitalizations within 8 hours and all work-related amputations within 24 hours

– Change list of partially exempt industries from SIC system to NAICS and add and delete sectors

New Proposals

• NPRM January 29, 2010– Proposal to restore a column on the OSHA

300 Log to record work related musculoskeletal disorders (MSDs)

– 2001 recordkeeping final rule included the column but was removed before the rule was implemented

– Proposal was withdrawn and was re-instated this year for additional comments

Proposed Rules/Out for Comment

• NPRM May 5, 2010– Modernization of OSHA Injury and Illness

Data Collection Process. Comments sought on:

– Modernized electronic record keeping system (Scope, Uses, Methods, Economic Impact…)

– Linking records to medical records? Workers Compensation?

– Collect from every employer for every case or subset of employers? Ect……

National Emphasis Program

• CPL 02-10-07 Effective Sept 28, 2010• Focused on industries with low rates in

traditionally high rate industries• But records are getting closer scrutiny during all

inspections• In FY 2010 187 inspects done with 91

companies being cited. 332 violations with an average of 3.6 violations each

• Not on the FY12 plan. But……

National Emphasis Program

• Top violations included:– Unrecorded cases– Mis-recorded cases involving restricted work– Incomplete case description– Mis-recorded case involving days away– OSHA 300 not certified– Incomplete OSHA 300 entry– Incomplete or missing OSHA 301

Recordkeeping Inspections of Note

• Baton Rouge AO – O&G company and its five subsidiaries issued 38 recordkeeping citations for proposed penalty of $337,500

• Cincinnati AO – Home improvement company’s two stores issued 11 recordkeeping citations for proposed penalty of $110,000

• Houston North AO – Manufacturing company issued 83 recordkeeping citations for proposed penalty of $1,215,000

Incentive Programs

• Safety incentive program that discourage the reporting of injuries and illnesses could be discrimination

• In the VPP, program an incentive program that focuses on injury and illness numbers could be an incentive to not report/record injuries..

• Incentives should promote safety awareness and worker participation

• Look at the ‘expectation’ of the reward• VPP memo 5 applies to EE incentives, not

manager bonuses

Recent Interpretations

• LOI February 16, 2010• Scenario – An employee works from 7 AM to 12

PM and 12:30 PM to 5:30 PM. At 12:20 PM (off the clock) he falls exiting a restroom and receives lacerations

• Question - Is this an exception for injuries that result solely from employee doing personal tasks outside assigned work hours?

Recent Interpretations

• Answer – Its recordable because it occurred in the work area and it’s within time the employee is normally expected to be present in the work environment. Pay status at time of accident or the fact they punch in or out isn’t relevant. The injury occurred during the normal work schedule (lunch break) and exception only applies if injury occurs when the employee is conducting personal tasks at a time either before or after the normal work schedule

Recent Interpretations

• LOI February 25, 2011• Scenario – Employee reports subjective work

related aches and pains to co. doctor who treats w 400 mg of ibuprofen and returns employee to work. Employee goes to a doctor who writes a prescription and gives employee a few days off

• Question – Can employer rely on first providers opinion as most authoritative in regards to medical treatment and days away and not record?

Recent Interpretations

• Yes – However once medical treatment is provided (once a prescription is issued treatment has been provided) or the days away or restricted work have occurred the case is recordable. If there are conflicting contemporaneous opinions but medical treatment, days away ect. have not occurred the employer may determine which opinion is most authoritarian and record on that basis. OSHA considers a contemporaneous opinion that is the best documented, best reasoned and most persuasive as the most authoritative

Recent Interpretations

• LOI March 22, 2011• Scenario – EE incurred a work related injury on

Saturday but didn’t think it was serious enough to see a doctor. Reported to work on scheduled day Monday. Worked 6 hours and left and sought treatment at the ER. He was treated and released with restrictions. He was scheduled to work on Tuesday. On Tuesday before work he said he was in pain and wanted see Dr again. Requested a bonus holiday. Saw doctor and released back to work with restrictions. Since he was on pre-approved holiday and returned on Wednesday. Is Tuesday recordable as day away or restricted?

Recent Interpretations

• Answer – Yes. LHCP recommended a return to work with restrictions. EE decided not to return till Wednesday so it’s recordable. If the LHCP had recommended a return to work but the employee decided not to then it’s not recordable.

Recordkeeping and Offshore Work

• LOI September 1, 2005– Question – Is an employee fatality that

occurred in a foreign country recordable?– No – The OSHA Act only applies within the

jurisdictional boundaries of the United States and certain locations listed in Section 4(a), 29 USC 653(a) of the Act

Recordkeeping and Offshore Work

• Recordkeeping applies to employees…– U.S Inland waters– State territorial seas which is 3 nautical miles

from coastline except for 9 nautical miles for Gulf Coast of Florida, Texas, and Puerto Rico

– Outer Continental Shelf (OCS) for structures permanently affixed to the bottom on OCS lands

Recordkeeping and Offshore Work

• LOI February 6, 2007 (#1)– Question – EE working on offshore platform and living

on a separate platform and travel back and forth by boat. EE is injured during the transfer in a personnel basket. Recordable?

– Yes – Furnishing of housing is a condition of employment when EEs are required to use them or are compelled to use due to practical… necessity. Not a home away from home and considered a work activity (travel in interest of the employer)

Recordkeeping and Offshore Work

• LOI February 6, 2007 (#1)– Question - EEs working on offshore platform

and living on a boat. After work EEs are transferred by basket onto the boat. If injured during the transfer is it recordable?

– Yes. If living on boat as condition of employment the ‘home away from home’ exception does not apply. The personnel basket attached to the platform is also considered part of the work environment

Recordkeeping and Offshore Work

• LOI February 6, 2007 (#2)– FYI - Host employers are required to record

injuries of contract employees who are supervised day to day even if not on the employers payroll. Day to day supervision occurs when ‘in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods, and process by which the work is to be accomplished’

Recordkeeping Resources

http://www.dol.gov/elaws/OSHARecordkeeping.htm

Recordkeeping Resources

http://www.osha.gov/recordkeeping/index.html

Recordkeeping Resources

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3205

Recordkeeping Resources

http://www.osha.gov/recordkeeping/RKinterpretations.html

Resources Interpretations

FY12 On OSHAs Radar

• PSM in chemical plants• Primary metals• Nursing homes• Silica• Isocyanates• Distracted driving• Workplace violence• Hexavalent chromium

FY12 On OSHAs Radar

• The NPRM for the Injury and Illness Prevention Program (I2P2) is high priority– Management duties– Employee participation– Hazard ID and Assessment– Hazard Prevention and Control– Education and Training– Program Evaluation and

Improvement

FY12 On R-VI OSHAs Radar

• Oil & Gas• Cranes in construction• Metal fabrication• Work Zone• Heat• Maritime• Distracted driving• Hydrogen Sulfide (new)• Confined Spaces (new)

HNAO FY12 Outreach

• Pipe handling

• Periodic safety classes– SHMS, Intro to OSHA, OSHA Cnst 10-Hour

• Facebook

• Also the activities related to the National and Regional emphasis areas

Where is OSHA Located?

• Jim SheltonCompliance Assistance SpecialistHouston North Area Office507 N. Sam Houston Pkwy E. Ste. 400Houston, TX 77060281-591-2438

OSHA in Houston

Disclaimer

• This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics [or hazards], it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov.