OSHA sets sights on under-reporting

Q.Tom is administrator of a nursing home with 55 employees. In addition to taking care of all facility and personnel matters, he is responsible for the home’s safety programs, including training, policies and injury reporting and management. As an incentive to maintaining a safe work environment, the company offers a financial award to employees for staying “injury-free” during a full quarter in the year. Tom recently read that OSHA will be targeting certain industries to ensure that they are in compliance with federal record-keeping requirements for injuries and illnesses. Are nursing homes among the industries being targeted and could Tom’s awards program be a problem?A. Tom is correct that nursing homes are among the industries targeted for possible inspection under the new OSHA program. He is also correct that the company’s safety program could be viewed as an incentive for employees not to report injuries in the workplace.In previous years, nursing homes also were targeted for OSHA inspections related to hazards specific to the industry, including ergonomics primarily related to patient handling, exposure to blood and other infectious materials and tuberculosis, and slips, trips, falls and workplace violence.Nursing care facilities rank among the highest in terms of injuries and illnesses, with rates said to be 2-1/2 times that of other general industries. However, nursing homes are not the only target industry of OSHA’s current inspection program.Effective Sept. 30, OSHA began a one-year National Emphasis Program, or NEP, designed to target employers with lower-than-average injury and illness rates in historically high-rate industries. The purpose of the NEP is to identify under-reporting of occupational injuries and illnesses. OSHA cites several academic studies that assert under-reporting of workplace injuries and illnesses on annual OSHA 300 logs in certain industries. The NEP inspections will be limited to companies with 40 or more employees. In addition to nursing care facilities, the targeted industries include animal slaughtering, scheduled passenger air transportation, steel foundries, concrete pipe manufacturing, soft drink manufacturing, couriers, mobile home manufacturing, rolling mill machinery and equipment manufacturing, iron foundries, fluid milk manufacturing, seafood canning, marine cargo handling, copper foundries, bottled water manufacturing, construction industry, refrigerated warehouse and storage, motor vehicle seating and interior trim manufacturing, pet and pet supplies stores, poultry processing and support activities for animal production. The NEP inspection will consist of three main parts: • A records review for calendar year 2007 and calendar year 2008

• Interviews of employees and management employees

• A walk-around safety and health inspection of the workplace
Among the records that may be requested by an OSHA inspector include company safety and incident reports (including the company’s 2007 and 2008 OSHA Forms 300 and 300A), company first-aid logs, workers’ compensation records, medical records, insurance records, payroll and absentee records, alternate duty logs and disciplinary records pertaining to injuries and illnesses. At the outset of a NEP inspection, the targeted company will receive an explanatory letter explaining the purpose, scope and process for the records inspection. The employer also will receive a Medical Access Order that addresses the medical records review process. An employer also will be advised that it may be cited for violations or complaints that are not related to the record-keeping that will be addressed by the NEP inspection.At the opening conference, an employer must verify what actions are taken when an employee experiences an injury or illness. The employer then has only four business hours to provide the required record-keeping. The OSHA compliance officer conducting the NEP inspection can begin the walk-around portion of an inspection as soon as the opening conference is completed and does not have to wait for records to be provided to do so.At the conclusion of an inspection, the OSHA compliance officer will conduct a closing conference with the employer. The compliance officer will discuss the strengths and weaknesses of the employer’s record-keeping program and describe record-keeping deficiencies and violations found. If OSHA record-keeping violations are identified, appropriate citations and penalties will be proposed. Violations will be classified as “other than serious,” “serious,” “willful,” “repeat” and “failure to abate.”Getting back to Tom’s original question about the workplace incentive award program at his nursing home ? it is possible that it could be viewed as a program that is designed to discourage illness and injury reporting which could turn an “other than serious” violation into a “serious” or “willful” violation under the NEP inspection process.In light of OSHA’s interest in ensuring accurate injury and illness recordkeeping, any company with such an injury-free incentive program should seek legal advice about whether the program should be modified or discontinued entirely. Likewise, any company that falls within the targeted industries would be wise to prepare now by conducting a self-audit to ensure that overall policies and practices are in compliance with OSHA record-keeping requirements.Linda Johnson, who chairs the Employment Law and Education Law Practice Groups at the law firm of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1267 or linda.johnson@mclane.com.