Member Article

After launching a National Emphasis Program (“NEP”) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance when conducting workplace inspections. Recently, the Assistant Secretary of Labor, David Michaels, noted that the recordkeeping NEP has supposedly uncovered recordkeeping violations in almost 60 percent of the 192 inspections OSHA has carried out to date under the program. The NEP, which initially focused on high-hazard establishments selected for inspection with seemingly inconsistent low injury/illness rates, was temporarily suspended while the targeting criteria was re-examined by the Agency.

After making adjustments to the criteria, OSHA included a broader range of establishments and renewed inspections under the program, which is scheduled to expire in February 2012. Even if your organization is not included in the NEP, management should monitor carefully the recordkeeping compliance climate in which OSHA is currently operating. Assistant Secretary Michaels reiterated OSHA’s general commitment through non-NEP inspections to ensure that recordkeeping is accurate. In turn, those in charge of workplace safety should carefully review and audit their recordkeeping procedures and OSHA 300 logs for compliance with OSHA’s Section 1904 regulations. Making necessary adjustments before an OSHA inspection is prudent as recordkeeping violations no longer result in a “slap on the wrist.” The following is a sample of recent published citations involving significant fines for recordkeeping infractions:

• A manufacturing company was cited with fines exceeding $1 million for allegedly hiding work-related injuries and illnesses.
• A retailer was issued a citation with more than $180,000 in penalties associated with allegations that it failed to document and report employee injuries and illnesses at its Rockford, Illinois facility.
• A transportation company in West Virginia was cited with more than $70,000 in penalties, which included various recordkeeping violations.

As these above examples illustrate, OSHA appears to be making good on its promise to focus on recordkeeping compliance. Not surprisingly, these efforts continue at the same time as OSHA advances its potential new “I2P2” rule (the Injury Illness Prevention Program), which would require employers to reduce workplace injuries and illnesses through a systematic process that proactively addresses workplace safety and health hazards. (See May 10, 2010, Client Alert on “Plan, Prevent, Protect or Pay”).

Businesses, however, can temporarily breathe a sigh of relief regarding OSHA’s proposed rule to add an additional column to the OSHA 300 logs to track work-related musculoskeletal disorders (MSDs). On January 25, 2011, OSHA announced that it has temporarily withdrawn from review by the Office of Management and Budget its proposal to restore the column for work-related MSDs. According to the Agency, it has withdrawn the proposal to allow input from small businesses through its partnership with the U.S. Small Business Administration’s Office of Advocacy in order to review the impact of the rule on the business community.

If you have any questions, please feel free to contact one of the following attorneys.