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February 11, 2010 |
Schiff Hardin Labor and Employment Alert By Ashley L. Thompson and Catherine H. Thompson The Occupational Safety & Health Administration (OSHA) requires employers to "record and report work-related fatalities, injuries and illnesses." 29 CFR 1904.0.1 OSHA's Compliance Safety and Health Officers (CSHOs) are tasked with monitoring employers' compliance with these reporting regulations. From time to time, OSHA releases directives to its CSHOs. These directives are helpful for employers because they offer insight into OSHA's interpretation of the regulations and publicize new compliance initiatives. OSHA recently released two such directives.2 The most recent directive clarifies when an employer should report a case of H1N1 flu. The second directive creates a new program, the Injury and Illness Recordkeeping National Emphasis Program (RK NEP), to locate and reform establishments that are under-reporting their workplace injuries and illnesses. The directive released in November 2009 requires employers to report cases of H1N1 under certain conditions. According to OSHA, the H1N1 virus is "not considered a common cold or seasonal flu," and therefore, must be recorded where "(1) the case is a confirmed case of 2009 H1N1 illness as defined by [the] CDC; (2) the case is work-related ... and (3) the case involves one or more recording criteria ... (e.g. medical treatment, days away from work)." Despite this directive, employers will likely remain confused about when to report a case of H1N1. The second requirement, that the case of H1N1 be "work-related," is difficult to follow. For example, a "work-related" case of H1N1 occurs if an employee contracts the illness while in the office or out on the job. In practice, however, it can be nearly impossible to determine where an employee was when he or she was exposed to the illness. Even after answering this question, it may still be difficult to determine whether the contraction was "work-related." For example, an employee may have contracted H1N1 while on a work trip, but not while performing his or her job. Unfortunately, OSHA has not issued further guidance on this issue. As a result, employers must be aware of the possibility that reporting may be required and must be prepared to seek assistance where necessary. The second recent directive created the RK NEP. The creation of this program was propelled by the results of recent studies. These studies show that there are "varying degrees of under-recording of workplace injuries and illnesses" on OSHA reporting forms. In response, OSHA announced in September 2009 that it would implement a new pilot program, the RK NEP, to "identify and correct" under-recording. OSHA posits that under-recording is most prevalent in establishments that report low Days Away, Restricted or Transferred (DART) rates, but are part of an industry which typically posts high DART rates. The RK NEP, therefore, requires a detailed inspection of recordkeeping in these targeted workplaces. Under the RK NEP, the OSHA National Office will choose only certain establishments for inspection from a subset of industries with historically high DART rates, including fluid milk manufacturers, iron foundries and nursing care facilities. (A full list of the targeted industries is available in Appendix E at the following link). From this subset of industries, OSHA will choose establishments with more than 40 employees and low DART rates based on the CY 2007 injury and illness data from the OSHA Data Initiative. Once the National Office has selected the establishments, the Area OSHA Offices will inspect some of them. The CSHO will examine data from both CY 2007 and 2008, compare this data to employees' medical records, insurance records, payroll records, company safety incident reports and other relevant documents, and interview employees, management and health care and/or first aid providers. The officer will focus on speaking with those employees who are most likely to be injured or fall sick on the job. Finally, the officer will conduct a limited walkaround inspection of the facility. The CSHO will issue citations for any violations he or she discovers during the entire inspection. This recent emphasis on under-recording further underscores the need for employers to properly record all workplace injuries and illnesses, including H1N1. If you believe your establishment may be subject to inspection under the RK NEP program, please seek further guidance from a professional familiar with this area of the law. 1 Some employers are exempt from these reporting regulations; however, this must be determined on an individual basis. We therefore urge you to seek professional advice to determine whether your business is covered by the reporting regulations. 2 U.S. Department of Labor, Occupational Safety and Health Admin., Directive Number 09-08 (CPL 02) (Sept. 30, 2009), available here (last visited February 2, 2010); U.S. Department of Labor, Occupational Safety and Health Admin., Directive Number CPL 02-02-075, (Nov. 20, 2009), available here (last visited February 2, 2010). RECENT LABOR AND EMPLOYMENT PUBLICATIONS
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