Review Commission Holds Employers Accountable for Recordkeeping Inaccuracies During Five Year Retention Period

Posted on March 30, 2011 by Brad Hammock

In a much anticipated decision, the Occupational Safety and Health Review Commission (Commission) has ruled that OSHA can enforce its requirement for employers to record work-related injuries and illnesses on the OSHA 300 Log even when the employer's duty to record the injuries and illnesses occurred more than six months before the issuance of the citation.  The employer in the case had argued that the six month statute of limitations in the Occupational Safety and Health Act for OSHA to enforce violations of the Act prohibited OSHA from enforcing recordkeeping violations that occurred beyond that six month period.  The Commission disagreed, however, and by doing so has reiterated for employers the need to continually review their recordkeeping logs to ensure the entries are accurate.

Under OSHA's recordkeeping rule, employers are required to enter a recordable injury on the OSHA 300 Log within seven days of the occurrence of the injury.  Employers must also retain their logs for five years and under OSHA's rule, there is an obligation for employers to go back and update entries should the circumstances surrounding them change.  In an earlier decision, Johnson Controls, Inc., the Review Commission had ruled that OSHA could cite employers for inaccurate entries until the entries were corrected or until the end of the five year retention period, whichever is longer.  The employer in the case at issue argued that Johnson Controls should be overturned for several reasons, including the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which had held that an employee's discrimination claim under Title VII of the Civil Rights Act of 1964 was time-barred.  The Review Commission rejected the employer's arguments, however, and held that under OSHA's recordkeeping rule, an inaccurate entry on the OSHA 300 Log constitutes a continuing violation of the rule throughout the entire five year retention period. 

For employers, the decision reiterates the need to integrate into their recordkeeping procedures a mechanism to ensure they go back and continually evaluate the accuracy of entries -- during the entire retention period.  It is not enough to record an injury within seven days and then "forget" about it.  OSHA expects employers to be diligent in updating recordkeeping entries for accuracy and may cite employers who are not.

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OSHA to Hold Teleconferences on MSD Column Rule

Posted on March 23, 2011 by Brad Hammock

OSHA announced today that it will be holding a series of three teleconferences, in partnership with the Small Business Administration's Office of Advocacy, on OSHA's proposed musculoskeletal disorder (MSD) column rule.  The teleconferences are designed to provide small businesses the opportunity to weigh-in on "their experiences in recording work-related MSDs and how they believe the proposed rule would impact them."

The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”    

OSHA's proposal had been stuck at the Office of Management and Budget (OMB) for several months, before OSHA took the unique step of temporarily withdrawing the proposal from OMB review and agreeing to additional stakeholder outreach.

The three teleconferences will be held on April 11 at 1:30 p.m. EDT, April 12 at 9:00 a.m. EDT, and April 12 at 1:30 EDT.  Interested businesses should contact OSHA by April 4 if they wish to participate in the teleconferences.  

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The Occupational Safety and Health Administration at 40

Posted on March 16, 2011 by Brad Hammock

OSHA is 40 this year and the Agency is looking back on its history and "celebrating" its accomplishments.  OSHA recently issued a timeline that stretches all the way back to December 29, 1970, when the Occupational Safety and Health Act was signed, and highlights Agency accomplishments up to the present.   

Not surprisingly, the timeline is heavily populated by regulatory actions and standards issued by the Agency.  Rules varying from asbestos, to grain handling, to Nationally Recognized Testing Laboratories are highlighted.  Interestingly, the timeline highlights a non-federal OSHA rule as well - California's adoption of an ergonomics standard in 1997.  OSHA does not mention that it finalized its own ergonomics standard toward the end of the Clinton Administration, which was later rescinded by Congress under the Congressional Review Act.  OSHA also highlights the start of several voluntary compliance programs, such as its Voluntary Protection Program, its training and education grants, and the development of its safety and health program guidelines in 1989.

As for OSHA's recent accomplishments, the list includes a few, notably OSHA's proposed initiative to require employers to adopt an Injury and Illness Prevention Program.  "I2P2" seems to continue to be OSHA's signature regulatory initiative, however, stakeholders are still waiting for the Agency to begin the Small Business Regulatory Enforcement Fairness Act process for the proposal and as the timeline attests, it has been almost a year since OSHA announced this initiative.  The list does not include major enforcement initiatives issued recently, such as the Severe Violator Enforcement Program and OSHA's Administrative Penalty Increase Memorandum.

Stakeholders should check OSHA's timeline out -- it is worth the read!  

  

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OSHA Issues Guidance Document for Cranes and Derricks in Construction Rule

Posted on March 10, 2011 by Brad Hammock

OSHA has just released a Small Entity Compliance Guide for its Cranes and Derricks in Construction final rule.  The intent of the Guide is to assist employers -- and particularly small employers -- in understanding OSHA's new crane safety requirements.  All employers covered by the rule should review the document to further ensure compliance.

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OSHA's PPE Compliance Directive -- A Deeper Dive

Posted on March 9, 2011 by Brad Hammock

OSHA’s new Enforcement Guidance for Personal Protective Equipment in General Industry (CPL 02-01-050) has been “on the street” for a few weeks and employers are still working through its details. While employers need to go through the directive carefully on their own and incorporate the aspects of the directive that are applicable to their facilities, after a closer review of the document, it is worth emphasizing a few pieces of information that may go unnoticed:

  • OSHA states in the directive that body protection is required for employees who face potential bodily injury in the workplace of “any kind” that cannot be eliminated through other control measures. Examples given are radiation, temperature extremes, hot splashes from molten metals, and other hot liquids. According to OSHA, an employer can provide laboratory coats, coveralls, vests, jackets, aprons, surgical gowns, or full body suits to protect against these and other similar hazards, depending on their exact nature.
  • Metatarsal guards are required when there is a potential for injury to the metatarsal portion of the foot from impact or compression hazards. “Examples include handling heavy pipes or similar activities where loads could drop on or roll over an employee’s foot.”
  • Employees who work in actual or potentially explosive and hazards locations “must wear” conductive shoes to reduce the risk of static electricity buildup on the body. However, employees exposed to electrical hazards must never wear conductive shoes.
  • For employers who have instituted a reimbursement policy for PPE (i.e., an employee initially purchases the PPE and is then reimbursed by the employer), the employer should reimburse the employee within one billing cycle or one pay period.

With enforcement guidance out, employers should expect CSHOs to focus more on PPE and PPE payment in the course of inspections. Employers should review their PPE policies, hazard assessments, training, and payment practices to ensure they are fully compliant.

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