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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Scenario: Your business is in the middle of flu season and many employees are calling in sick. Two of the employees are claiming that they have been diagnosed by their doctors with the H1N1 flu. They say they contracted the flu at work from a co-worker who was also diagnosed with the H1N1. The two employees want you to record their illnesses because they say they got the flu at work.

Question: Are you required to record these flu related illnesses? 

Answer: The OSHA standard states that the common cold or flu are not recordable.  However, OSHA recently (Early December 2009) posted this statement on the very bottom of the Recordkeeping page of the OSHA website: 

H1N1: 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.

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09-775-NAT
Oct. 1, 2009
Contact: Jaime Zapata
Phone: 202-693-4676

U.S. Labor Department’s OSHA begins National Emphasis Program on recordkeeping to determine accuracy of worker injury and illness data

WASHINGTON - The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is initiating a national emphasis program (NEP) on recordkeeping to assess the accuracy of injury and illness data recorded by employers.

The recordkeeping NEP involves inspecting occupational injury and illness records prepared by businesses and appropriately enforcing regulatory requirements when employers are found to be under-recording injuries and illnesses.

“Accurate and honest recordkeeping is vitally important to workers’ health and safety,” said acting Assistant Secretary of Labor for OSHA Jordan Barab. “This information is not only used by OSHA to determine which workplaces to inspect, but it is an important tool employers and workers can use to identify health and safety problems in their workplaces.”

The inspections include a records review, employee interviews, and a limited safety and health inspection of the workplace. The NEP will focus on selected industries with high injury and illness rates.

At the request of the Senate Committee on Health, Education, Labor and Pensions and the House Committee on Education and Labor, the Government Accountability Office (GAO) issued a study on the accuracy of employer injury and illness records. This NEP will help OSHA work cooperatively with the GAO. It also complements the Labor Department’s Bureau of Labor Statistics’ (BLS) efforts to investigate factors accounting for differences between the number of workplace injuries and illnesses estimated by BLS and those estimated by other data sources.

Under the Occupational Safety and Health Act of 1970, OSHA’s role is to promote safe and healthful working conditions for America’s men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.

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Scenario: One of your employees injured his foot at work on a Thursday. Your physician said he could not work and scheduled a follow-up appointment on the following Tuesday. The physician would then determine if your employee could return to work or would need to be away longer. The employee was not scheduled to work on Saturday or Sunday, but was scheduled to be at work on Monday.

Question: Since your employee was not scheduled to work on the weekend, do you need to record this time as part of the days away from work?

Answer: Yes, Saturday and Sunday need to be recorded and are part of the calendar days your employee was unable to work. 29 CFR 1904.7 (b)(c)(iv) states:

“How do I count weekends, holidays, or other days the employee would not have worked anyway? You must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those day(s). Weekend days, holidays, vacation days or other days off are included in the total number of days recorded if the employee would not have been able to work on those days because of a work-related injury or illness.”

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Scenario: One of your employees was hit in the mouth by an object while he was performing his normal work duties. However, his dental bridge was damaged. He has not wanted any medical or dental treatment.

Question 1: Would damage to a denture in the presence of no other discernable injury be considered a recordable injury requiring entry on the OSHA 300 log even when medical treatment is not administered?

Response 1: Damage only to an employee’s denture would not be a recordable injury. Section 1904.7(b) provides that a work-related injury or illness must be recorded on the OSHA 300 Log if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a serious injury or illness diagnosed by a physician or other licensed health care professional.

Section 1907.7(b)(7) provides that only a physician or other licensed health care professional can diagnose a serious or significant injury or illness. Work-related cases involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum must always be recorded under the general criteria at the time of diagnosis by a physician or other licensed health care professional. OSHA believes that cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended.

As discussed in the preamble of the Recordkeeping final rule, work-related fractures of bones or teeth are recognized as constituting significant diagnoses and, if the condition is work-related, are appropriately-recorded at the time of initial diagnosis even if the case does not involve any of the other general recording criteria (Federal Register/Vol. 66, No. 13/Friday, January 19, 2001/Rules and Regulations/page 5995). Thus, for purposes of Part 1904, injuries and illnesses are limited to disorders and abnormal conditions related to a person. Damage to artificial or mechanical devices, such as dentures, eye glasses, canes, or prosthetic arms or legs, would not be considered an injury or illness under Part 1904.

Question 2: In the context of repair to a denture, what type of activity would be considered medical treatment?

Response 2: Again, repair or replacement of an artificial device, such as a denture would not be considered a recordable injury or illness under Part 1904.

Under section 1904.7(b)(5)(i), “medical treatment means the management and care of a patient to combat disease or disorder. For the purposes of Part 1904, medical treatment does not include: Visits to a physician or other licensed health care professional solely for observation or counseling; the conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or “First aid” as defined in paragraph (b)(5)(ii) of this section.”

Any condition (of the employee) that is treated, or that should have been treated, with a treatment not on the first aid list is a recordable injury or illness for recordkeeping purposes. Repair or replacement of a denture would only be considered medical treatment if the treatment met the criteria in Section 1904.7(b)(5) and it was administered to the employee.

Question 3: Would simple repair to a denture meet the threshold for the definition of medical treatment?

Response 3: No. As noted above, the OSHA injury and illness recordkeeping requirements at Part 1904 require the reporting and recording of injuries and illnesses to employees.

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