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

OSHA has updated its Recordkeeping National Emphasis Program (NEP).  The NEP, initated originally in September, 2009, was designed to investigate whether, and to what extent, injuries and illnesses are being underreported by employers.  The original NEP, as well as the revision, targets employers with low rate establishments operating in historically high rate industries.  Click here for a Special Report on the Recordkeeping NEP.

The updated NEP makes three significant changes:

• The expiration date has been extended until February 2012.
   
• If OSHA begins an inspection of an establishment and determines that the establishment falls outside the targeted industries identified in the NEP, compliance officers are now instructed to proceed with the inspection.  In the original NEP, compliance officers were instructed to stop the inspection if they identified that an establishment was not in fact in one of the targeted NAICS codes.
   
• Employee interview questionaires have been expanded to gather additional information on, among other things, recordkeeping policies and programs that may discourage the reports of injuries and illnesses.

OSHA's update and extension of the NEP further shows how seriously the agency is taking allegations of underreporting of injuries and illnesses by employers.  Assistant Secretary Michaels was recently quoted as saying that "We're gong to be looking at the books, and they had better be accurate."  Employers must continue to be vigilant in ensuring that their recordkeeping programs and practices are fully compliant with OSHA's rules.

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Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses.  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.

In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN).  The interview covers H1N1, hazard communication, safety and health management systems, OSHA's Recordkeeping NEP, and other hot topics.

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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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