Scenario:  You have a 48 year old male employee who reports to work on Wednesday morning and two hours into his work shift he experiences some sort of seizure and falls to the floor.  During this event when the employee falls he strikes his head on a work table and receives a laceration on his head that requires six stitches.  Further investigation determines the employee has epilepsy and a history of epileptic seizures.  The doctor verifies that what this employee experienced was indeed an epileptic seizure.   So you determined the event was due to a preexisting non-work related medical condition.  But since the employee struck his head while at work performing work, does the geographical presumption make this event an OSHA recordable? 

Answer:  Neither the seizures nor the laceration are recordable. Injuries and illnesses that result solely from non-work-related events or exposures are not recordable under the exception in section 1904.5(b)(2)(ii). Epileptic seizures are a symptom of a disease of non-occupational origin, and the fact that they occur at work does not make them work-related. Because epileptic seizures are not work-related, injuries resulting solely from the seizures, such as the laceration in the case in question, are not recordable.

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Release Number: 10-135-NAT
Jan. 28, 2010
Contact: Diana Petterson
Phone: 202-693-1898

US Department of Labor’s OSHA proposes recordkeeping change to improve illness data

WASHINGTON — The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is proposing to revise its Occupational Injury and Illness Recording and Reporting (recordkeeping) regulation by restoring a column on the OSHA Form 300 to better identify work-related musculoskeletal disorders (MSDs). The rule does not change existing requirements for when and under what circumstances employers must record musculoskeletal disorders on their injury and illness logs.

Many employers are currently required to keep a record of workplace injuries and illnesses, including work-related MSDs, on the OSHA Form 300 (Log of Work-Related Injuries and Illnesses). The proposed rule would require employers to place a check mark in a column for all MSDs they have recorded.

The proposed requirements are identical to those contained in the OSHA recordkeeping regulation that was issued in 2001. Prior to 2001, OSHA’s injury and illness logs contained a column for repetitive trauma disorders that included noise and MSDs. In 2001, OSHA separated noise and MSDs into two separate columns, but the MSD column was deleted in 2003 before the provision became effective. OSHA is now proposing to restore the MSD column to the OSHA Form 300 log.

“Restoring the MSD column will improve the ability of workers and employers to identify and prevent work-related musculoskeletal disorders by providing simple and easily accessible information,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “It will also improve the accuracy and completeness of national work-related injury and illness data.”

For more information, view OSHA’s proposal at: http://www.dol.gov/federalregister/msdcolumn. This notice will be published in the Jan. 29 edition of the Federal Register.

Interested parties may submit comments on the proposed rule electronically at http://www.regulations.gov, the federal e-rulemaking portal; or by mailing three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210; or by fax at 202-693-1648 if the comments and attachments do not exceed 10 pages.

Comments must include the agency name and docket number for this rulemaking (Docket Number OSHA-2009-0044). The deadline for submitting comments is March 15. OSHA will hold a public meeting on the proposed rule March 9.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

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Your Form 300A Must Be Posted as of February 1

On February 1 of each year, employers with 10 or more employees must post the OSHA-required Form 300A, which summarizes an employer’s recordable injuries and illnesses for the prior year. The Form 300A posting period is February 1 to April 30. An employer subject to this requirement must post the OSHA 300A even if the employer had no recordable injuries/illnesses in the prior year.

All of the data required for the OSHA 300A is taken from the Form 300. Form 300 is not typically posted as it contains confidential medical information. Employees with no fixed work site or no access to posted sites, such as field sales reps, must be provided with a copy of the report.

Some industries are partially exempt from keeping the Form 300A.  A list of partially exempt industries may be found at http://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html .  Remember that regardless of your size or industry exemption, if an employer has a fatality, or hospitalization of three or more employees from the same event then you must contact OSHA within eight hours.  Please note that some State Plans have even lower thresholds for reporting injuries and it is advisable that you check with your state plan for their requirements.

OSHA provides information on its recordkeeping and posting  requirements on its Web site at www.osha.gov/recordkeeping/index.html.  There you will find Frequently Asked Questions on the requirements, as well as the “OSHA Recordkeeping Handbook” and the recordkeeping forms. The most recent forms are dated as revised in January 2004.

If you need assistance in OSHA recordkeeping feel free to contact us.

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OSHA has cited HomeGoods for 16 alleged violations of workplace safety standards. The retailer faces a total of $233,500 in proposed fines, chiefly for exit access, fire and crushing hazards at its Commack, N.Y., store.

Responding to an employee complaint, OSHA found exit routes obstructed by stock and equipment, an exit route too narrow for passage, stacked material that prevented employees from identifying the nearest exit, blocked access to fire extinguishers, workers not trained in fire extinguisher use and boxes stored in unstable 8-foot high tiers.

OSHA had cited Home Goods in 2006 and 2007 for similar conditions at the company’s Mount Olive, N.J., and Somers, N.Y., locations. As a result of what OSHA calls “recurring conditions”, OSHA issued the company five repeat citations, with $200,000 in proposed fines, for the hazards at the Commack store.

“It’s been 99 years since the fire at The Triangle Shirtwaist Co. in New York City took the lives of nearly 150 workers and almost 19 years since two workers were killed when they were unable to exit the McCrory’s store in Huntington Station, N.Y., during a fire,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “Blocked fire exits can be deadly. It is that simple.”

OSHA’s Commack inspection identified additional hazards, including a defective fire alarm box, a missing exit sign, electrical hazards and inadequate chemical hazard communication. These conditions resulted in nine serious citations, with $32,500 in fines. Finally, the store was issued one other-than-serious citation, with a $1,000 fine, for not providing injury and illness logs.

“There can be no delay in exiting a workplace during a fire or other emergency when the difference between escape and injury or death can be measured in seconds,” said Michaels. “Employers must ensure that exit routes are unobstructed at all locations.”

“One means of preventing recurring hazards is for employers to establish an effective comprehensive workplace safety and health program through which involve their employees in proactively evaluating, identifying and eliminating hazards,” said Robert Kulick, OSHA’s regional administrator in New York.

A fact sheet covering emergency exit routes is available at http://www.osha.gov/OshDoc/data_General_Facts/emergency-exit-routes-factsheet.pdf.

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Need help with developing your emergency action plan call Advanced Safety & Health at 1-866-339-8040

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Here is the scenario:

• An employee reports to work.
• A few hours later, the employee goes outside for a “smoke break.”
• The employee slips on the ice and injures his back.

Since the employee was not performing a task related to the employee’s work, the company has deemed this incident non-work related and therefore not recordable.

Right or wrong?

Response: Under Section 1904.5(b)(2)(v), an injury or illness is not work-related if it 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”. In order for this exception to apply, the case must meet both of the stated conditions. The exception does not apply here because the injury or illness occurred within normal working hours. Therefore, your case in question is work-related, and if it meets the general recording criteria under Section 1904.7 the case must be recorded.

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OSHA has cited Chapman Printing Co. in Huntington, WV for workplace safety and health violations. Proposed penalties total $158,400.

OSHA initiated its inspection on June 18 in response to a complaint. As a result of the investigation, the company has been issued citations for six willful violations, with a penalty of $126,000; eight serious violations, with a penalty of $27,900; and five other-than-serious violations, with a penalty of $4,500

The willful violations address OSHA’s belief that the company failed to provide adequate energy control procedures and a hearing conservation program. OSHA defines a willful violation as one committed with plain indifference to, or intentional disregard for, employee safety and health.

The serious violations include a lack of machine guarding, failure to conduct a hazard assessment of the workplace to determine the need for personal protective equipment, failure to provide personal protective equipment for employees, and failure to provide and use protective equipment when working on or near energized electrical equipment.

The other-than-serious violations are due to the company’s inadequate recordkeeping.

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OSHA Recordkeeping Guidance for Recording the Swine Influenza A (H1N1) Virus

We were wrong. Back in October we posted an article in our monthly newsletter saying it was not necessary to record on your OSHA 300 log any cases of the Swine Flu or H1N1 virus. We based this on the recordkeeping standard 1904.5(b)(2)(viii) which states that the common cold or flu are not recordable. However, OSHA has now made the following statement on the bottom of their main recordkeeping webpage:

Employers are responsible for recording cases of 2009 H1N1 illness if all of the following requirements are met: (1) the case is a confirmed case of 2009 H1N1 illness as defined by CDC; (2) the case is work-related as defined by 1904.5; and (3) the case involves one or more of the recording criteria set forth in 1904.7 (e.g., medical treatment, days away from work). Per CPL-02-02-075.

Note: This recording criteria applies to all establishments covered by PART 1904.

Here is some additional supporting information:

As you are probably aware, human cases of swine influenza A (H1N1) virus infection have been identified in the United States and internationally. In order to be proactive, the Agency is requesting our recordkeeping coordinators to follow the following guidelines when considering recording these exposures.

Is the Swine Influenza A (H1N1) virus considered a common cold or flu?

No.   CDC has determined that this swine influenza A (H1N1)) virus as a contagious disease. The 1904.5(b)(2)(viii) exception for the common cold or flu does not apply in these cases.

If a worker has an exposure to the Swine Influenza A (H1N1) virus, is that recordable?

No.   Exposures in and of themselves are not recordable. A case of Swine Flu is recordable if they meet the following requirements:

1.A confirmed case* of swine influenza A (H1N1) as defined by CDC (not an exposure).

2.The case is work related. You must consider an injury or illness 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. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.

3.The case involves any one of the following: medical treatment, days away from work, restricted work activity, loss of consciousness, or death.

* A confirmed case of H1N1 infection is defined as a person with an acute febrile respiratory illness with laboratory confirmed H1N1 infection at CDC by one or more of the following tests:

1.real-time RT-PCR

2.viral culture

How do I handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work?

In most situations, you must evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition. However, because this illness can be contracted from any setting, there should be a known exposure in the workplace to establish work-relationship.

NOTE: If a confirmed case of swine influenza A (H1N1) is reported in the workplace, workers in close contact with this individual may take up to 7 days to show symptoms.

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Scenario: You are the Safety Manager for your company and are responsible for completing the OSHA 300 Log. It is time for you to have your new Plant Manager sign the “Summary of Work-Related Injuries and Illnesses” Form 300-A so you can post it as required by the standard. You spent quite a bit of time explaining to him how the whole OSHA recordkeeping process works, and he demonstrated quite an interest in what you were doing and the types of injuries your plant was experiencing.

As you are leaving his office, he makes the following statement to you: “When it comes to safety, we have no secrets around here. I think it would be a great idea if you post the entire 300 Log along with the Summary so people see just exactly what type of injuries we are having.”

Question:  How should you respond to his statement?

Answer:  The instructions that accompany the OSHA recordkeeping forms do include the following Question and Answer: “When must you post the Summary? You must post the Summary only–not the Log–by February 1 of the year following the year covered by the form and keep it posted until April 30 of that year.”

The following was taken from a letter of interpretation: “12/18/2003 - Posting requirements for the OSHA 300 Log and OSHA 300-A Summary Form“.

“While our rules do not require the Form 300 to be posted, the regulation also does not prohibit an employer from posting the Form 300 along with the Form 300-A. However, if the employer does choose to post the full Form 300 Log, they should post the Log in an area only accessible by those granted access under the rule (i.e., employees, former employees, employee representatives, and an authorized employee representative). If the posting area is accessible by others (e.g., members of the public) the employer must remove or hide all names of the injured or ill employees as set out in Section 1904.29(b)(10). In addition, 1910.29 prohibits the employer from including the employee’s name for “privacy concern” cases whenever the Form 300 Log is made available to coworkers, former employees, or employee representatives.”

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OSHA Recordkeeping Quiz #8

Scenario:  One of your employees suffered a very serious broken leg due to an accident at work.  She had surgery and is in rehabilitation.  Her physician cannot give a definite date or even an estimate of when she will be able to return to work.  She may be out of work for many months, but is expected to fully recover and be able to work in her job again.

Question: Is there a maximum number of days that should be recorded on the OSHA 300 Log for cases such as this one?

Answer:  The maximum number of calendar days to be recorded for any injury or illness is 180.  This includes days away from work and/or days of job transfer or restriction.

29 CFR 1904.7 (b) (3) (vii) states: Is there a limit to the number of days away from work I must count?
Yes, you may “cap” the total days away at 180 calendar days.  You are not required to keep track of the number of calendar days away from work if the injury or illness resulted in more than 180 calendar days away from work and/or days of job transfer or restriction.  In such a case, entering 180 in the total day’s away column will be considered adequate.

For further clarification regarding this area of recordkeeping, we should consider another scenario.  Your employee has been away from work due a work-related injury for 100 calendar days.  The employee is then allowed to return to work on restrictions that will last for more than 80 calendar days.  Since the total time for both days away from work and days of restricted work will exceed 180 calendar days, the days in both columns may be combined and you can quit counting once they reach 180 days.

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Acting Secretary of OSHA made a speech today at the Committee of Education and Labor House of Representatives conveying that he believes State Plan OSHA programs need more oversight and need to follow more closely with what Federal OSHA does.

Twenty-seven (27) States and territories operate some level of a state run OSHA program. Twenty-one (21) States and Puerto Rico have complete programs covering both the private sector and State and local governments; four States and the Virgin Islands have programs limited in coverage to public sector employees.

In his speech Barab disclosed that going forward Federal OSHA will require each state to also implement any National Emphasis Program (NEP) promulgated by federal OSHA. Until now states could elect not to follow federal NEP programs. He stated that based on how the state programs react that he may require them to also adopt the most recent NEP to inspect the accuracy of the injury and illness reporting requirements. In his testimony Barab said “Although we did not require the state plan states to adopt this initiative, we have told the states that we believe that it is essential that they do so because accurate reporting is critical to an effective enforcement program”. Then he went on to say “We plan in the future, to make all Federal OSHA NEPs and other similar initiatives mandatory rather than discretionary changes to the states’ programs”.

Barab believes that over a period of the last several years and especially in the mid-1990s oversight of state programs has been reduced. Citing the findings from a recent investigation of the Nevada OSHA program Barab demonstrated frustration with the lack of issuing Willful and Repeat violations during inspections and a need to step up Federal oversight of all state OSHA programs. It was determined that Nevada’s average of programmed inspections with serious violations was 26% compared with 79% for Federal OSHA. Barab believes this to mean Nevada inspectors were either failing to target inspections properly, failing to identify serious violations, or failing to classify those violations appropriately.

Federal OSHA has advised the Nevada program to ensure that all hazards identified during inspections are addressed with the employer through a citation, notification of violation, or some other method. Case files should be reviewed more thoroughly by supervisors, including review of photographs, to find hazards not initially identified. In other words Federal OSHA expects the Nevada program to write more citations.

As a result of the deficiencies identified in Nevada OSHA’s program and a shift in the administrations policies, Barab has notified all State Plans that he will be announcing a number of changes in stronger oversight, monitoring and evaluation of state programs. He has already sent interim guidance to each of OSHA’s ten Regional Administrators encouraging more extensive investigation of potential problems as part of OSHA’s monitoring procedures for all State Plans.

Barab also announced today that OSHA will conduct what he calls Baseline Special Evaluation Studies for every state that administers its own program. OSHA intends for these baseline studies to lead to better program performance and consistency throughout all State Plans.

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