OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

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As of January 27, 2010, OSHA’s State Plan webpage is reporting that all State Plan States have indicated an intent to adopt OSHA’s Recordkeeping National Emphasis Program (NEP). (OSHA will continually update the webpage as it gathers additional information from the State Plan States regarding adoption.)  OSHA launched the NEP, effective September 30, to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. State Plan State adoption further broadens the potential scope of this significant enforcement initiative.

Of the 26 State Plan States adopting, 14 States have indicated an intent to adopt an identical NEP, according to OSHA's website. These States are: Arizona, California (adopted on 11/30/2009), Hawaii, Indiana, Kentucky, Maryland, Michigan, North Carolina, Nevada, Tennessee (adopted on 11/1/2009), Utah, Virginia, the Virgin Islands, and Vermont.

The following States have indicated that they will adopt a different recordkeeping NEP: Alaska, Connecticut, Iowa, Minnesota, New Jersey, New Mexico, New York, Oregon, Puerto Rico (adopted on 1/4/2010), South Carolina, Washington, and Wyoming.

Jackson Lewis has prepared a special report on the federal NEP and recorded (with SmartPros Ltd.) two recordkeeping seminars to assist employers in preparing for the NEP and ensuring their recordkeeping practices are fully compliant with OSHA’s rules.  The first is Course 2215, OSHA’s Record-Keeping NEP:  What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail.  The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

OSHA is determined to ascertain whether, and to what extent, injuries and illnesses are under-recorded.   Employers must be prepared.

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In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.

            OSHA Increases Enforcement

Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:

Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.”  In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.

Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.

Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.

Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.

A More Active Regulatory Agenda

In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.

In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.

All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation. 

(More to come on what to expect in 2010 in the next blog post.)

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The Government Accountability Office (GAO) has released an analysis of OSHA's efforts to ensure that work-related injuries and illnesses are properly recorded by employers.  Members of Congress had requested that the GAO determine (1) whether DOL verifies that employers are accurately recording workers' injuries and illnesses and, if so, the adequacy of these efforts, and (2) what factors may affect the accuracy of employers' injury and illness records.  The GAO study is another piece of the "under-recording puzzle" that is the focus of great attention by OSHA.

The GAO concludes that there are several deficiencies in OSHA's recordkeeping audit verification program in terms of the ability of the audits to determine if employers are accurately recording injuries and illnesses that occur at the worksite:

• OSHA does not always require inspectors to interview workers about injuries and illnesses.
• Many workers are no longer employed at the worksite and therefore cannot be interviewed. 
• OSHA does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the codes used to identify the industries in its recordkeeping rule.

The GAO also identifies disincentives to workers reporting injuries and illnesses, including fear of job loss or other disciplinary action and fear of jeopardizing rewards based on having low injury and illness rates.  The GAO also surveys U.S. health practitioners and concludes that over a third of them have been subjected to pressure from employers or workers to provide insufficient medical treatment to avoid the need to record injuries or illnesses.

In response to its findings, the GAO makes four recommendations to OSHA:

• Require inspectors to interview workers during records audits and substitute other workers when those initially selected are unavailable.
• Minimize the time between the date injuries and illnesses are recorded by employers and the date they are audited.
• Update the list of high hazard industries used to select worksites for records audits.
• Increase education and training to help employers better understand the recordkeeping requirements.

OSHA agreed with all the recommendations.   It stated that it would require inspectors to interview employees during records audits and develop policies to conduct audits in a timely fashion.  It also stated that it would pursue rulemaking to update the industry coverage of the recordkeeping rule from SIC codes to NAICS codes.  Finally, it committed to supplement its current outreach efforts on recordkeeping compliance.

Of course, OSHA has also implemented its Recordkeeping NEP, which will focus OSHA enforcement resources on investigating the extent to which employers are under-recording injuries and illnesses.

Employers must take steps now to ensure that they have been, and are, accurately recording injuries and illnesses that occur at work.   

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OSHA's Recordkeeping National Emphasis Program (NEP) has been in effect for over a month and employers should be taking steps now to review their records and prepare for an NEP inspection.

Click here for an article that can assist in the preparation process.  "Are You Prepared for OSHA's Recordkeeping National Emphasis Program?," which just appeared in Workforce Management, describes the NEP and some recordkeeping best practices.  Implementation of these best practices can help ensure that employers are fully compliant with their OSHA recordkeeping obligations.   

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Marking the federal government’s first move from a “recommendation” to a “requirement” posture in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The OSHA Directive will prescribe uniform procedures governing OSHA inspections of healthcare institutions for occupational exposure to H1N1 flu.  Covered healthcare settings include acute care hospitals, nursing homes, skilled nursing facilities, physicians’ offices, urgent care centers, outpatient clinics, and home healthcare agencies.  OSHA will conduct inspections based upon employee complaints.

While it is unclear how much of the CDC Guidance will be incorporated into OSHA’s Directive and what level of compliance will be required, healthcare employers should make reasonable efforts to ensure their policies, procedures, forms, and postings conform with the CDC’s recommendations, including:

• Hierarchy of Controls:  The CDC recommends that healthcare facilities use a “hierarchy of controls” to prevent H1N1 exposure and transmission including, in descending order of preference:  (1) elimination of potential exposures, such as minimizing outpatient visits for patients with mild influenza-like symptoms, and denying access to visitors with suspected or confirmed influenza; (2) engineering controls, including partitions for triage areas and other public spaces; (3) administrative controls, including providing vaccinations for employees, ensuring that ill employees stay home, and enforcing respiratory hygiene and cough etiquette; and (4) personal protective equipment (PPE), such as gloves and respirators.
   
• N95 Respirators/Facemasks:  The CDC recommends use of respiratory protection “at least as protective as a fit-tested disposable N95 respirator for healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza.”  Close contact is defined as working within six feet of an infected patient.  Acknowledging that some facilities face a supply shortage of this equipment, the CDC advises that “special care … be taken to ensure that respirators are available for situations where respiratory protection is most important, such as performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza or provision of care to patients with other infections for which respiratory protection is strongly indicated (e.g., tuberculosis).”  This may require prioritizing resources.  The CDC recommends that facemasks be chosen over no protection.

For its part, OSHA suggests that if employers make a good faith effort to obtain N95 respirators, but are unable to do so for supply reasons, they will not be cited, so long as they are taking other appropriate protective measures.  What level of compliance OSHA will require with respect to these other recommended protective measures — such as screening for respiratory illnesses — is not clear at this time.

Beyond efforts to implement policies and procedures that comply with the CDC Guidance, healthcare employers must consider how the recommendations interact with their legal obligations under federal and state disability, leave, privacy and other laws.  The Equal Employment Opportunity Commission, for example, has published technical guidance detailing employers’ obligations under the Americans with Disabilities Act with respect to H1N1.

Mei Fung So prepared this blog post.

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Acting Assistant Secretary of OSHA Jordan Barab issued a statement today announcing a soon-to-be-issued compliance directive to guide agency inspections for H1N1 in healthcare facilities.  Click here to view the statement.

We will keep you posted in this space as the compliance directive is developed.  

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OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP).  Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews.  Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.

Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program. 

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OSHA has declared that it lacks the congressional authority to ban the use of hazardous substances. OSHA made this statement in a letter of interpretation, published on the agency’s website, responding to a question specifically related to OSHA’s ability to ban hexavalent chromium in the workplace. OSHA agrees that “product substitution” is the best solution to eliminating the hazards from hexavalent chromium. However, the agency rejects the notion that it can ban its use or the use of any hazardous substance. According to OSHA, the authority to ban the use of hazardous materials has been delegated to the U.S. Environmental Protection Agency (EPA).

OSHA’s authority to mandate employers’ adherence to safe practices is provided by the Occupational Safety and Health Act of 1970 (OSH Act). While the OSH Act does not specifically allow OSHA to ban the use of hazardous substances, the agency has always taken a broad view of its regulatory authority. Thus, if banning the use of a hazardous substance were “reasonably necessary and appropriate” to provide a safe work environment, it could be argued that OSHA would have the authority to institute the workplace ban. However, the agency seems to have foreclosed that argument with its latest statement.

OSHA’s position is not simply of theoretical interest. It could be very important in upcoming OSHA regulatory actions. For example, the agency is preparing a proposal to regulate silica exposure comprehensively in the workplace. Many stakeholders have called for OSHA to ban the use of silica in abrasive blasting operations. This latest declaration from the agency would appear to take this possible regulatory approach off the table. It also could be important in OSHA’s diacetyl rulemaking, where product substitution is a significant issue.

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OSHA has released its much anticipated recordkeeping National Emphasis Program (NEP).  It became effective September 30.  Click here to see the NEP.

We will be reviewing the document carefully and pass along to you the key aspects of the program.   

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In a speech recently before the Small Business Administration’s safety and health forum in Washington, DC, Richard E. Fairfax, OSHA’s Director of Enforcement and Construction Programs, provided an update on the agency’s key enforcement initiatives. Of particular note, Mr. Fairfax stated:

• OSHA will be issuing another update to its Field Operations Manual (FOM) in November 2009. The FOM guides OSHA’s compliance officers in the conduct of their inspections.
  
   
• OSHA’s Enhanced Enforcement Program (EEP) is being revised to focus on fatalities, serious hazards and hazards identified in OSHA’s National Emphasis Programs, and to mandate follow-up inspections.
  
   
• The following NEPs are now in the works: food flavorings; primary metals; hexavalent chromium; and recordkeeping.

OSHA also has issued two important new enforcement documents. The Site Specific Targeting Program (SST) for 2009, “is OSHA’s main programmed inspection plan for non-construction workplaces that have 40 or more employees.” To compile the SST, OSHA surveyed 80,000 large employers in historically high-rate industries, requiring them to report their injury and illness rates. Employers in manufacturing who reported a particularly high “Days Away, Restricted, or Transferred (DART) Rate” (over 8.0) or “Days Away from Work Injury and Illness (DAFWII) Case Rate” (over 6.0) should expect an SST inspection within the next year. Non-manufacturing employers who reported a DART Rate over 15.0 or DAFWII Rate over 13.0 also should expect an inspection under the SST. Nursing and personal care facilities are treated separately under the SST and will be subject to an inspection if they reported a DART Rate over 17.0 or a DAFWII Rate over 14.0.

OSHA also reissued its petroleum refinery NEP. This continues OSHA’s focus on enforcing its process safety management (PSM) standard in refineries. Employers in NAICS code 324110 should review their PSM programs in anticipation of an OSHA inspection of their facilities.

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OSHA has announced a new National Emphasis Program (NEP) to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. Chemical facilities with PSM-covered processes should review their programs now to ensure full compliance with OSHA standards.

The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” Chemical facilities in the Northeast (OSHA’s Region 1), the Plains States (OSHA’s Region VII), and the Northwest and Alaska (OSHA’s Region X) will be subject to programmed inspections under the NEP. The NEP will apply to unprogrammed inspections for PSM-covered processes OSHA-wide.

In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation:

Based on past inspection history at refineries and large chemical plants, OSHA has found that employers may have an extensive written process safety management program, but insufficient program implementation. Therefore, CSHOs should verify the implementation of PSM elements to ensure that the employer’s actual program is consistent with their written program.

Compliance officers also are instructed at the start of inspections to request numerous documents from employers, some of which are not required to be kept under the standard (e.g., a list of all PSM-covered process/units in the complex, a summary description of the facility’s PSM program, safe upper and lower operating limits for certain covered units). According to OSHA, however, they represent “documents typically compiled by employers with PSM-covered processes at their facilities.” Furthermore, OSHA will examine under the NEP all contractors – including construction contractors – working on or adjacent to PSM-covered units being inspected.

This is just the first of several key NEPs OSHA will be releasing. OSHA’s Recordkeeping NEP should be released within days, and other NEPs on Food Flavorings, Oil and Gas Well Drilling, Primary Metals, and Hexavalent Chromium are in the works.

We will continue to keep you apprised of all of OSHA’s enforcement initiatives.

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OSHA has announced it is targeting for inspections federal agency workplaces staffed by federal employees or by contractors whose work is supervised on a day-to-day basis by federal agency personnel. The agency initiative will focus enforcement resources on those worksites experiencing a high number of lost time injury cases. Employers who work as contractors to federal agencies should review the targeting program and prepare for a possible inspection – particularly if they have employees performing hazardous work.

The new inspection targeting program – “FEDTARG 09” effective June 16, 2009 – directs inspections at federal agency establishments that experienced large numbers of lost time injuries in fiscal year 2009, as reported by the federal Office of Workers Compensation Programs. OSHA regional offices are directed to develop a primary inspection list that will include 100% of the establishments within the region reporting 100 or more lost time cases, 50% of the establishments reporting 50-99 lost time cases, and 10% of the establishments reporting 20-49 lost time cases. All sites on the primary inspection list must be inspected.

Contractors who are supervised by federal workers should take note of this and prepare. Inspections conducted under FEDTARG 09 will be comprehensive safety inspections. The inspections also will cover ergonomics, with compliance officers instructed to consult with the region’s ergonomics coordinator on musculoskeletal disorder issues.

Should the OSHA compliance officer see contractors performing work that is not being supervised by a federal agency worker, the officer may open up another inspection relating to the contractor specifically, if the compliance officer observes any hazards. In short, contractors performing work on federal agency worksites are fair game under FEDTARG 09.

Acting Assistant Secretary of Labor Jordan Barab, in announcing the program, stated, “OSHA’s mission of protecting worker safety doesn't begin and end with private industry.” That is true. In this instance, however, it does not begin and end with federal employees either. FEDTARG 09 targets both federal agencies and private employers, and both need to be prepared.

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Citing the high number of construction fatalities in Texas, Secretary of Labor Hilda Solis announced recently that OSHA will start a new enforcement initiative targeting the construction industry in that state. Secretary Solis made the announcement in San Antonio at the annual conference of the American Society of Safety Engineers. Construction employers in Texas should take note of this new initiative and ensure that they continue to be fully compliant with OSHA standards.

While there are few details of the new enforcement initiative available, Secretary Solis stated that:

• Beginning in July, OSHA will increase the number of inspectors in Texas; and
• Inspectors will be authorized to launch an immediate investigation of a construction worksite, whenever they observe “unsafe scaffolds, fall risks, trenches or other hazards.”

Secretary Solis stated that in 2008, there were 67 construction fatalities in Texas and in 2009 there already have been 33 fatalities reported. According to the Secretary, more workers die in Texas than in any other state.

This initiative is just one part of OSHA’s expanded enforcement efforts under the new Labor Secretary. OSHA will be hiring over 100 new inspectors and issuing five new National Emphasis Programs.  In San Antonio, Secretary Solis reiterated her commitment to more enforcement: “As I have said since my first day on the job – the U.S. Department of Labor is back in the enforcement business.”

We will, of course, keep you informed as more details of this and other enforcement initiatives become available.

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When OSHA launches its recordkeeping National Emphasis Program (NEP) later this year, employers cannot accuse the agency of inadequate warning. Since early March, OSHA officials have signaled the impending NEP. Employers should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.

Just last week, OSHA reminded us how seriously it is taking recordkeeping and the perceived underreporting of occupational injuries and illnesses. The Bureau of National Affairs (BNA) reported on remarks by Acting Assistant Secretary of OSHA, Jordan Barab, at the annual American Society of Safety Engineers convention in San Antonio: 

Barab said OSHA’s pending recordkeeping National Emphasis Program will scrutinize companies in high-risk industries that post strikingly low accident and injury rates. OSHA inspectors will look not only at a company’s records but also its safety policies, he said. In particular, agency inspectors will look for companies that discourage their employees from reporting workplace accidents, Barab said. 

The recordkeeping NEP will involve more than just a standard records review. Employer programs that “discourage” employees from reporting workplace accidents will be targeted by OSHA. Unfortunately, OSHA has not provided additional information on the types of programs it is concerned about. However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern. OSHA required in that rule that employers not develop policies that discourage the reporting of musculoskeletal disorders (MSDs). In the preamble to the final rule, OSHA suggested that the following could run afoul of this provision: 

• Disciplining employees for reporting injuries, without considering the cause of those injuries;
• Establishing incentive programs that offer rewards to employees or groups of employees based on a low number of reported injuries;
• Implementing programs where manager or supervisor performance reviews or bonuses are tied to the number of reported injuries and illnesses; and
• Instituting drug testing programs, when applied to all workers who report MSDs.

Employers should prepare for an OSHA recordkeeping inspection by taking some time to: 

• Review their 300 logs and 301 incident reports for accuracy;
• Ensure their 300 logs reflect information from the 301 incident reports; and
• Compare all their OSHA recordkeeping forms with any workers’ compensation reports and claims.

As important, employers should look at their safety incentive programs and injury and illness reporting procedures for any evidence that these protocols are discouraging employee reports.

Roger Kaplan, a Partner in Jackson Lewis's Long Island office, contributed to this Post. 

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In a new letter of interpretation, OSHA has confirmed that injuries to employees sustained at off-site team-building events are recordable on OSHA logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). Employers are encouraged to review their recordkeeping practices to ensure that they are complying with this interpretation of OSHA’s recordkeeping rule.

OSHA was asked whether an injury incurred while an employee was go-cart racing at an off-site team-building activity was “work-related” under OSHA’s rule. In the scenario presented to OSHA, employees were not required to participate in the go-cart racing or other team building events. However, they were required to attend an off-site meeting and luncheon. In OSHA’s view, the employee was at the go-cart facility as a condition of employment and thus was “in the work environment.” Any injury or illness that arises is therefore presumed to be work-related in the view of the Agency.

Employers often hold team-building events at locations outside the workplace. If injuries occur during these events, employers must record them on their OSHA logs, assuming the injuries meet other recordability criteria.

With OSHA developing a National Emphasis Program on recordkeeping, now is the time for employers to review their recordkeeping procedures and logs to ensure they are fully compliant.
 

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Signaling its renewed focus on enforcement, OSHA has announced it is developing six new National Emphasis Programs (NEPs). NEPs focus OSHA’s resources on industries, hazards, and occupational injuries and illnesses that need additional targeted enforcement, in the Agency’s view.

OSHA’s Director of Enforcement Programs revealed the following industry-specific NEPs are in development:

• Chemical plants – process safety management;
• Primary metals;
• Flavorings and diacetyl; and
• Oil and gas well drilling.

Employers in these industries should expect additional inspections and take steps now to ensure their safety and health practices are fully compliant with OSHA requirements.

Even more employers, however, can anticipate increased scrutiny on account of OSHA’s recordkeeping initiative. As a result of questions raised by Congress and labor organizations that injuries and illnesses are underreported, OSHA announced it is developing a recordkeeping NEP. All employers who are required to keep OSHA injury and illness logs should review them now for accuracy, completeness, and appropriate certification.

Finally, OSHA is developing an NEP dealing with occupational asthma, a growing area of concern for OSHA and the National Institute for Occupational Safety and Health.

In a recent speech, newly confirmed Secretary of Labor Solis committed OSHA to increased enforcement. These NEPs will drive much of that enforcement in coming months. 

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In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid).

The interpretation stems from an incident described as “horseplay gone badly.” At the end of a work day, two supervisors got into a physical confrontation while changing to go home. One supervisor pulled a knife and stuck the other in the arm, resulting in several sutures.

OSHA stated that the injury was recordable. First, because the injury resulted from an event occurring in the work environment, it was presumed to be work-related and none of the exceptions to this “geographic presumption” applied. The exceptions include, among other things, injuries such as those resulting from an employee eating, drinking, or preparing food for personal consumption, those involving signs or symptoms that surface at work but result solely from a non-work-related event, and those caused by a motor vehicle accident occurring on a company parking lot while the employee is commuting to or from work. Second, because the injury required medical treatment beyond first aid, OSHA concluded that it satisfied the other recordability criteria related to severity.

OSHA dismissed as essentially irrelevant the issue of whether the injury resulted from activities that were “not directly productive” to the employer’s work. OSHA also reiterated that there is no general exception under the recordkeeping rule for violence that occurs at the worksite.

Situations such as this are all too common in the workplace. Aside from taking steps to address violence in the workplace generally, employers must ensure that when an incident occurs and injury results, it is properly recorded under OSHA’s rules, if warranted.
 

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