With an effective date of September 30, 2009, OSHA's one-year national emphasis program (NEP) on recordkeeping will target employers with lower than average injury and illness rates in historically high-rate industries. Based on academic studies released within the past few years, which suggest workplaces underreport injuries and illnesses, OSHA will be conducting what amounts to a comprehensive audit of certain employers' business records. OSHA compliance officers are instructed to review not only employers' OSHA Forms 300, 301 and 301A, but medical records, workers' compensation records, insurance records, payroll/absentee records, and if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. Moreover, if an employer has in place a policy that may have the effect of discouraging recording of injuries and illnesses, such as an awards program, OSHA will request a copy of the employer's policy.

Industries Covered By The Recordkeeping NEP

The Recordkeeping NEP will encompass the following industries (by NAICS codes): please click here to view table.

In addition, Poultry Processing (NAICS 311615) and Support Activities for Animal Production (NAICS 115210) are on the NEP list, although not high-rate industries. [1]

The Office of Statistical Analysis (OSA) will provide each OSHA Area Office with a list of no more than five establishments to be inspected for what it is calling this "pilot test." Employers with 40 or more employees and a Days Away, Restricted and Transfer (DART) rate from 0.0 to 4.2 in the targeted industries are subject to inspection. In addition, OSHA's position is that because the construction industry has a long history of complex recordkeeping issues related to mobile worksites, the NEP will initially pilot several inspections of construction employers to better understand how to approach recordkeeping for the construction industry on a broad scale.

Public sector employers, establishments participating in a strategic partnership with OSHA, and OSHA-approved Voluntary Protection Program (VPP) or Safety and Health Achievement Recognition Program (SHARP) workplaces will not be inspected under the recordkeeping NEP. In addition, if a facility changed ownership after December 31, 2008, the recordkeeping NEP inspection will not be conducted.

Confidential Medical Information

OSHA will begin any recordkeeping NEP inspection with an opening conference in which the inspector will provide the employer with two documents -- one is a letter outlining the purpose and scope of the inspection, the second is a written "Medical Access Order" (MAO). The MAO purports to give authority to OSHA to examine employee medical records and to prohibit employers from redacting explicit personal identifiers (name, address, payroll number and/or social security number). The MAO also provides that OSHA regulations give employers the right to file written objections regarding the MAO, but filing written objections does not defer the employer's obligation to provide prompt access to the requested medical records and information.

Inspection Procedures

As a general rule, recordkeeping NEP inspections will be comprised of a comprehensive records review, interviews of employees and managers, and a walkaround.

Records Review and Walkaround

The OSHA compliance officer will initially review the employer's OSHA 300 logs for 2007, and corresponding OSHA forms 301 and 300A. The compliance officer will calculate the DART rate for 2007, and compare it with that reported by the employer in the OSHA Data Initiative Data Collection. If the compliance officer calculates that the 2007 DART rate is above the cutoff rate of the NEP (i.e., >4.2), the records inspection will not be conducted. The compliance officer will, however, conduct a limited walkaround. The walkaround is designed to give the compliance officer an opportunity to determine whether the jobsite appears consistent with the injury and illness records. If the compliance officer observes a violation in plain view, he or she may cite the employer and, after consulting with the Area Director, the compliance officer may expand the scope of the inspection.

If the records inspection goes forward, the compliance officer will also review 2008 OSHA forms, as well as request medical records, workers' compensation records, insurance records, payroll/absentee records, and if available, company safety incident reports, first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. The NEP also directs compliance officers to examine records that are stored offsite. OSHA regulations allow employers four hours to produce recordkeeping records, however, the compliance officer may conduct his or her walkaround prior to obtaining the records.

The NEP directs the compliance officer to use 2007 rosters to select the employees whose records will be audited. For establishments with 100 or fewer workers, all employees' records will be reviewed. For establishments with 101 to 250 employees, records of 50% of the employees will be reviewed. For establishments with more than 250 workers, 33% of the workers' records will be reviewed. The compliance officer is to review all pertinent records for each employee selected in the inspection sample and independently reconstruct log entries for the sampled employees. The OSHA officer is to the compare the reconstructed cases with the employers OSHA Form 300. In addition, if the employer uses an off-site medical clinic, the compliance officer is to visit the clinic and review any medical records pertaining to the sampled employees for the year 2007. Compliance officers' worksheets are to be forwarded to the OSHA National Office for evaluation. As a result, in order to protect confidentiality, compliance officers are directed to use a unique code to identify employees.

The NEP directs compliance officers to make copies of any logs, medical records or other documents needed to support any recordkeeping deficiencies identified. If an employer does not have a copier or will not allow the records to be temporarily removed from the site, the compliance officer is directed to subpoena the records he or she considers necessary. If the compliance officer determines that under-recording exists, the compliance officer may expand the records inspection beyond the sampled employees.

Employee Interviews

As part of the recordkeeping NEP, OSHA will interview many employees including the designated recordkeeper, a sub-sample of employees whose records have been audited, management representatives, first-aid providers, and health care professionals, if any. The questionnaires the compliance officer will use while interviewing are found in OSHA Directive 09-08 (CPL 02).

The compliance officer will conduct a closing conference upon completion of the NEP inspection at which time the strengths and limitations of the employer's recordkeeping program is discussed. The compliance officer will also describe any violations identified in either the records review/interview process and/or the walkaround.

Citations

Citations for recordkeeping violations are to be classified as "other-than-serious" with proposed penalties, if any, appropriate to the circumstances in each case. It is uncommon for OSHA to issue willful, repeat, or failure to abate citations for recordkeeping violations, but these categories are available to the compliance officer. Employers will not be cited for over-reporting of injuries and illnesses. Any items identified during the walkaround will be cited as appropriate, according to OSHA.

Compliance officers are to submit to the Office of Statistical Analysis copies of the logs, completed worksheets, completed interview forms and copies of employer written policies for each inspection. OSA will compile the data and develop a descriptive report of the results of the inspections conducted under this NEP.

Conclusions

The Recordkeeping NEP requires that any employer inspected under the program supply a significant amount of information to OSHA, much of it confidential employee medical information. Although an employer may request that OSHA subpoena the records, doing so should only be done in unusual circumstances and after consulting counsel. Whether OSHA's "Medical Access Order" will withstand a legal challenge is yet to be determined. To ensure employee confidentiality, employers are encouraged to inform the compliance officer at the opening conference that employer expects to review the compliance officer's worksheet and any other information that is going off-site at the conclusion of the investigation.

Employers in affected industries with lower than average DART rates should be certain that the company recordkeeper reviews all OSHA recordkeeping rules. Although OSHA has the authority to interview management personnel, employers have a right to have counsel present during those interviews. Employers who have reported lower than average DART rates should expect an OSHA inspection and comply with all relevant OSHA regulations. Particularly important is compliance with any previously cited OSHA standards. The effect of the NEP is unfortunate and somewhat ironic in that employers with valid, low injury and illness rates may very well be inspected under this NEP.