As of Feb. 1, employers must designate someone at the company to certify the annual summary of work-related injuries and illnesses. In the past, OSHA required certification only by the person who actually kept the injury log throughout the year, such as the occupational safety and health professional or a human resources manager. The new law is very specific about the definition of a company executive. Executives, for the purpose of the recordkeeping standard, can be: an owner of the company (only if the company is a sole proprietorship or partnership); an officer of the company; the highest ranking official working at the establishment; or the immediate supervisor of the highest ranking official working at the establishment.
Paul S. Maco, an attorney with Houston-based law firm Vinson & Elkins, notes much has been written about the provisions in the new Sarbanes-Oxley Act, which makes executives more accountable for the accuracy of their firm's SEC disclosures. He points out that "what has received less attention, but could be even more important to many executives, is OSHA's new recordkeeping accountability provisions." Maco, writing in an article for the Mondaq Business Briefing (wwwmondaq.com), says with the new recordkeeping provisions, an executive must certify in writing that he or she has examined the injury summary and that it is "true, accurate and complete."
"An executive's failure to properly certify the summary can result in fines for the company and may increase the penalties for any errors that OSHA discovers. A false certification could also make an executive personally liable for the falsity," says Maco.
This new law will call for executives, who likely have no prior safety experience or expertise, to educate themselves about the new criteria for determining what constitutes a recordable injury or illness. The regulations state that the executive must "reasonably believe" the summary is accurate based on his or her knowledge of the process by which the injury information was recorded, says Maco. He adds OSHA suggested in commentary that at a minimum, the executive must be familiar with the OSHA recordkeeping requirements, the company's recordkeeping practices and the company's injury log.
"Despite this limited guidance, there are still many unanswered questions," acknowledges Maco. "For example, how much knowledge must an executive have to be 'familiar' with the intricate recordability criteria? Must an executive evaluate whether particular injuries should have been recorded?"
Until these and other questions regarding the certification requirement are answered, he says, covered employers should err on the side of caution. "At a minimum," Maco counsels, "covered employers should assure that their chosen executives receive education and training sufficient to understand OSHA's new recordkeeping criteria and to apply that knowledge to the company injury log."