The Occupational Safety and Health Administration (“OSHA”) has strict injury and illness recordkeeping requirements that apply to most employers. Specifically, employers are required to report recordable work-related injuries and illnesses on the OSHA Form 301 Incident Report, to record such injuries and illnesses in their OSHA 300 Log, and to summarize their recordable work-related injuries and illnesses annually in the OSHA Form 300-A Summary of Work-Related Injuries and Illnesses. Noting that “several academic studies have asserted varying degrees of under-recording of workplace injuries and illnesses,” OSHA established a national emphasis program targeted at the occupational injury and illness recording practices (“Recordkeeping NEP”) of several industries in September 2009. On September 28, 2010, OSHA extended the 2009 Recordkeeping NEP, which was scheduled to expire on September 30, 2010, until February 19, 2012.
Under the Recordkeeping NEP, each OSHA Area Office must inspect five manufacturing establishments meeting certain criteria to determine their compliance with OSHA recordkeeping requirements. (In Area Office jurisdictions with fewer than five manufacturing establishments meeting the required criteria, nursing homes will be randomly selected for inspection to meet the Area Office’s five-establishment inspection quota.) In addition to reviewing the facial accuracy of each establishment’s records, OSHA will perform an independent review to determine that the records accurately reflect workplace injuries and illnesses. Accordingly, the inspection process will, among other things, involve a review of the establishment’s 2008 and 2009 OSHA 300 Logs and corresponding OSHA Form 301 and OSHA Form 300-A; a comprehensive review of medical, workers’ compensation, and payroll records; an interview with the establishment’s designated OSHA recordkeeper; interviews with a sample of the employees at the establishment; and interviews with select management representatives.
Although the manufacturing industry is the primary focus of the Recordkeeping NEP, OSHA believes that “[r]ecordkeeping in the construction industry has a long history of complexity and questions raised due to the nature of the workforce associated with mobile worksites.” As a result, the Recordkeeping NEP also includes a pilot program under which OSHA will conduct recordkeeping inspections of five randomly selected construction employers in order to better understand how to construct a broad-scale approach to the perceived recordkeeping violations of the construction industry.
As of October 1, 2010, OSHA had inspected 187 establishments under the Recordkeeping NEP. Approximately half of the inspections revealed recordkeeping violations. Although the Recordkeeping NEP is targeted at the manufacturing and construction industries, OSHA seems to have incorporated a thorough review of records into all of its inspections, not just those under the Recordkeeping NEP. Thus, all employers should review their OSHA recordkeeping policies to ensure that recordable work-related injuries and illnesses are being properly and promptly reported. Employers should also inspect their OSHA forms to confirm that they are facially accurate. For example, dates on OSHA Forms 301 and entries on OSHA 300 Logs should not be more than seven calendar days from the date the employer learned of the recordable work-related injuries. Similarly, the OSHA Forms 300A should be certified by a “company executive,” as that term is defined in 29 C.F.R. § 1904.32, rather than by general safety personnel. With penalties ranging from $1,000.00 to $7,000.00 per noncompliant form, recordkeeping violations are costly mistakes that can be easily avoided.