10 OSHA Recordkeeping Questions (Employers Get Wrong)

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.

1. 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.

2. “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.