One of the nation's top OSHA law attorneys shares the list of common recordkeeping mistakes he sees employers making.
Now that OSHA under President Obama has warned employers that “there is a new sheriff in town” and is moving toward electronic reporting of injuries and illnesses, employers should be on the lookout for these common errors on their OSHA 300 logs.
During my years of advising employers on OSHA recordkeeping, auditing their records, and defending them against OSHA recordkeeping citations, my colleagues and I have been struck by how often we find employers making the same mistakes on their OSHA 300 logs. Here is my top 10 list of mistakes employers make on their OSHA 300 logs.
- MISUNDERSTANDING WORK RESTRICTIONS
The single most common error I have found employers making is misunderstanding what an OSHA-recordable work restriction is. Employers commonly — but honestly — believe that an injury is not recordable as a work restriction if the injured employee still can perform useful work. Thus, I have seen employers try to avoid an OSHA recordable by assigning office work to injured carpenters. Other employers believe that the case is not recordable if the employee still can perform work within his or her job description. For example, they give purely sedentary welding work to ironworkers who otherwise would daily climb ladders to perform welding.
Both ideas are wrong. OSHA's regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state that a restriction occurs when either one of two circumstances occur: the employer keeps an occupationally injured employee from performing one or more “routine functions” of his job; or a licensed health care professional recommends that the employee not perform one or more “routine functions” of his job. The term “routine function” is defined as a work activity regularly performed at least once per week. In the case of the injured welder who now is unable to climb a ladder, the case is recordable because he climbs ladders every day.
These misconceptions nevertheless have all the tenacity of original sin. They were common even before the 2001 overhaul of the recordkeeping regulations. The 1989 OSHA-commissioned Keystone Report stated the consensus of knowledgeable persons from OSHA, industry and unions that “the recording of restricted work is perhaps the least understood and least accepted concept in the recordkeeping system.” (Keystone Center, “Keystone National Policy Dialogue on Work-Related Illness and Injury Recording,” 1989). That still is the case.
- “LIGHT DUTY” CAN BE A RECORDABLE RESTRICTION
Another common misconception is that light duty is not a work restriction. A recordkeeping regulation (§ 1904.7(b)(4)(vii)) indicates that light duty can indeed amount to a work restriction. The regulation indicates — albeit indirectly — that light duty is presumptively a restriction.
The regulation starts with the question, “How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in ‘light duty’ or ‘take it easy for a week’?” After stating that the employer “may” ask the physician whether this means that the employee may not perform all of his routine job functions or work his entire normally assigned work shift, the lengthy provision ends with this: “If you are unable to obtain this additional information from the physician … who recommended the restriction, record the injury or illness as a case involving restricted work.”
OSHA officials take this last sentence to mean that “light duty” is a recordable work restriction unless the physician affirmatively states that the employee may perform all of his routine job functions and may work a full shift. Therefore, I advise employers that, when faced with a vague restriction such as “light duty,” they should contact the physician and get clarification on what tasks the employee may not perform. If one of these tasks is one that the employee regularly performs at least once a week, an OSHA recordable case must be entered on the log.
Another aspect of work restrictions that employers overlook is that the recordability of a restriction depends on that particular employee's routine functions. Hence, two employees can be identically injured, treated and restricted, but the restriction might be recordable for only one of them. A restriction for an ironworker might not be a restriction for a receptionist. An employer needs to review with the employee or his immediate supervisor what tasks the employee regularly performs at least once per week and ask whether the restriction prevents any from being performed.
- MISSING AN IMPORTANT WITNESS — THE INJURED EMPLOYEE
Another common error is to fail to give proper weight to the account of the injury offered by the injured employee. I have seen employers discount an employee's version of events because there were “no witnesses.”
Employers often forget that the injured employee is a witness. If the employee says that he twisted his ankle when he stepped on a rock, the employee's account must be given as much weight as the circumstances warrant. It cannot be ignored because the employee cannot corroborate it; sometimes the employee's statement is enough. And if it is not enough, the prudent employer will document the facts and reasons indicating why it is not.
- EXCESSIVE RELIANCE ON THE EMPLOYEE'S FAILURE TO IMMEDIATELY REPORT
Employers sometimes fail to record an injury because the employee did not report it immediately or on the same day it allegedly happened. They thought that the employee's failure to immediately report is fatal to his credibility, especially if the failure violated the company's immediate-reporting rule. Employers also fear that recording the injury would undermine their rule.
Such reasoning is understandable but incorrect. Although the employee's failure to immediately report may undermine his credibility and may violate the employer's reporting rule, it does not necessarily mean that a work-related injury did not occur. It may well be that the employee initially thought that the injury was too minor to report but found that, upon awakening the next morning, the injury feels worse.
Even though the injury was reported late, in violation of the employer's rule, the employer still must ask himself whether the employee's account is credible, including whether there is other convincing countervailing evidence to dispute his account.
- MISUNDERSTANDING AGGRAVATION — UNDERSTANDABLY
One of the most common errors that employers make is misunderstanding OSHA's test for recordability of a workplace aggravation of a non-occupational injury. Employers often think that if an on-the-job incident caused a flare-up of an injury that originally occurred off the job or with a previous employer, the aggravation is not recordable. This often is incorrect. But what makes the situation worse is that OSHA's regulations on this point are misleading.
Consider an employee who gets a bad case of tennis elbow on vacation, returns to work and picks up a small box of pencils. Suppose the lifting of the pencil box tips her already-precarious elbow over the edge and causes her to either require medical treatment or makes her unable to perform her normal weekly typing. Is the case recordable?
It would be understandable for an employer to think that the pencil box incident may be ignored as an insignificant aggravation. First, the principal provision on aggravation in the regulations (§ 1904.5(b)(3) says that an aggravation is not recordable unless the current workplace “significantly” aggravated the previous non-occupational condition. Second, the preamble to the regulations describes the provision as not “requir[ing] the recording of cases involving only minor aggravation of preexisting conditions.” So a reasonable employer might think that the regulations permit him to distinguish between significant and insignificant aggravations.
That employer would be wrong; another provision in the regulations (§ 1904.5(b)(4)) takes away what the word “significantly” and the preamble appear to promise. That provision defines “significantly” aggravated as being severe enough to tip a non-occupational injury into the usual recordability criteria. It states that if a restriction is imposed or medical treatment is required because a discernable workplace event or exposure has aggravated a non-occupational condition, the case is recordable.
This special definition not only is out of character with the wording and preamble of the regulation, but means that what normal people would consider an insignificant aggravation is “significant” and thus recordable. Employers can and should be forgiven for being mystified by a regulation that speaks of “significant” aggravation but requires them to record a case the cause of which is 99.99 percent non-occupational.
- APPLYING OR BEING INFLUENCED BY NON-OSHA RECORDKEEPING CRITERIA
Another phenomenon I have seen is physicians and employers applying or being influenced by non-OSHA criteria for work-relatedness, aggravations and restrictions.
For example, employers commonly ask a doctor whether an aggravation is work-related. This is fine if the employer means to ask whether something on the current job played any role in the employee's condition. But often a physician responds that the “preponderant” or “major” cause was something non-occupational. This response often reflects the physician's own common-sense test for work-relatedness or aggravation, or that state's workers' compensation criteria, which the physician may be more accustomed to applying. What this response does not reflect, however, is OSHA's own special definition of aggravation, which does not ask about “preponderant” or “major” causes. Employers therefore should be alert for signs their physicians are failing to apply OSHA's definition or approaches to recordkeeping.
This problem affects more than physicians. It often affects employers' recordkeepers, because they nearly always are the same people whom employers entrust with the responsibility to determine compensability under workers' compensation law. Criteria for recordability and compensability are similar enough to be confused, and for the application of one to influence the other. This is understandable, for it is difficult and counter-intuitive to say that a case is not work-related or aggravated for compensability purposes but is recordable for OSHA purposes.
This conceptual spillover also affects work restrictions. Workers' compensation insurers lately have urged employers that to promote healing, maintain employee morale and lower compensation costs, employees be kept working as much as possible. Safety and health managers who have succeeded in keeping injured employees from languishing at home often find it psychologically hard, when reviewing the case for OSHA recordability, to place the case on the 300 log as an OSHA recordable restriction.
- SOME COMMON-SENSE FIRST AID IS RECORDABLE MEDICAL TREATMENT
Under the recordkeeping regulations, medical treatment is recordable unless it falls within an exception in the regulations, one of which is “first aid.” (See § 1904.5(b)(5)(i)(C)). The regulations list all treatments that are “first aid,” and then state in paragraph (b)(5)(iii): “Are any other procedures included in first aid? No, this is a complete list of all treatments considered first aid for Part 1904 purposes.”
Despite this, I many times have encountered (even conscientious) employers who think that if a treatment is first aid in common parlance, it is not recordable. It does not occur to them that because OSHA has created its own special and highly restricted definition of “first aid,” there is a difference between first aid in common parlance and “first aid” within the meaning of the OSHA regulations.
One example is the removal of foreign objects from eyes with combination instruments called eye loops and magnets. The use of these instruments is not “first aid” within the meaning of OSHA's regulations because it is not on the exclusive “first aid” list. That list says that “[r]emoving foreign bodies from the eye” is first aid “using only irrigation or a cotton swab[.]”
Yet, combination eye loops and magnets commonly are sold to employers as first aid devices that can remove objects from the eye “with minimal intrusion.” One physician-written “Guidelines for Foreign Body Removal” in a Web catalog states that “the magnet and the nylon loop” are “in the realm of first aid.” So while the regulations make clear that their use is not “first aid,” it is understandable for employers to think otherwise.
- WHAT IS A PRESCRIPTION MEDICINE?
OSHA's recordkeeping rules state that the use of a prescription drug is recordable as medical treatment. Employers often overlook, however, that a physician's recommendation for an employee to use even a non-prescription drug at “prescription strength” is recordable.
What is frustrating is that OSHA's regulations state no way in which an employer can determine what is a prescription drug or a prescription strength. Even OSHA's online Recordkeeping Handbook (of which few employers are aware) inadequately addresses the point; it states the prescription strengths of only four over-the-counter drugs.
The handbook does state that, to determine the prescription-strength dosages for other non-prescription drugs, the employer “should contact OSHA, the United States Food and Drug Administration, their local pharmacist or their physician.” This is of little help. Not only are employers understandably reluctant to call OSHA but area offices are busy enough that it can be difficult to get a knowledgeable person on the phone. Moreover, different OSHA offices have been known to offer different advice.
OSHA's advice to call the FDA is unhelpful, as the handbook does not provide a phone number and and the FDA is a huge organization. Although online FDA databases have this information, they are very difficult to use and provide unclear results. Calling local pharmacists and physicians often is unsatisfactory as they are busy and, in my experience, have been unsure and even wrong when asked for the prescription dose of a drug.
OSHA should state (or arrange with the FDA to make clear on its Web site) what dose of each FDA-approved drug requires a prescription.
- UNRINGING THE BELL
Employers sometimes try to avoid a recordable case by asking a second physician for his opinion on whether a certain medical treatment given by, or a certain restriction recommended by, a previous physician was needed, or whether an injury or aggravation is occupational. This seems to be permitted by OSHA's regulations, which twice state that, “If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.” §§ 1904.7(b)(3)(ii) and (b)(4)(viii).
The trouble is that OSHA's regulations fail to make clear some fine distinctions that OSHA enforcement officials draw. Under these distinctions, sometimes the second physician may unring a bell rung by the first physician, and sometimes he may not.
OSHA has issued interpretation letters indicating that, once the first physician has actually treated the employee medically, or the employee has actually worked under a restriction or missed part a day of work, the bell cannot be unrung. “The employer may not consider a conflicting recommendation once medical treatment, days away from work or restricted work activity have taken place, even if the subsequent recommendation is more authoritative” (Letter to D.F. Coble; May 15, 2007; http://www.osha.gov/pls/osha web/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25696).
According to OSHA interpretations, the employer may follow the second physician's opinion as to restrictions, lost work time or medical treatment only if (a) he finds it more authoritative; (b) the opinion is “contemporaneous” with the injury; and (c) if the employee has not yet worked under the first physician's recommendation for restriction or time away from work, and has not yet received medical treatment from the first physician. See Question 7-10a in OSHA's Detailed Frequently Asked Questions for OSHA's Injury and Illness Recordkeeping Rule. Elements (b) and (c) are not in the text of the regulations but OSHA follows them anyway.
Another circumstance in which the bell may be unrung pertains to work-relatedness and aggravation. Initial conclusions on these points can be rebutted later by a second physician's opinion and by other evidence too. This distinction is implicit in the regulations and followed by OSHA, though it does not appear in any interpretation letter or guidance document of which I am aware.
- NOT TRACKING LATER EVENTS
It is common for employers to fall prey to the old adage, “out of sight, out of mind.” Once an injured employee has stopped reporting for work because he is on long-term injury leave, recordkeepers forget to keep track of his days away from work and put them on the log. The same thing frequently occurs when injured employees make subsequent physician visits remote in time from the injury; on these occasions, restrictions may be imposed, medical treatments given or drugs prescribed of which the employer is unaware.
Employers need to establish a system for keeping tabs on these subsequent events and for making sure that their recordkeepers consistently track them. If not, recordable cases or data might slip through the cracks and not be reflected on the employer's OSHA 300 log.
OSHA is laying the groundwork for a requirement that employers electronically file their OSHA 300 and 300A forms; this will help OSHA find patterns of under-recording and target employers for recordkeeping inspections. Employers therefore should review their logs and interview their recordkeepers to determine if the above errors have been made. Employers should do this now, before OSHA does it for them.
Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous audits and cases involving OSHA injury recordkeeping, and can be reached at 202-756-8246 or firstname.lastname@example.org.