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    1. OSHA RECORDKEEPING TRAINING Paul A. Amedee CSP, CWCP Daryl Guercio

    3. The Occupational Safety and Health Administration issued Goodman Manufacturing Co. LP 83 willful citations for failing to record and improperly recording work-related injuries and illnesses at the company’s Houston air conditioning cooling facility. Proposed penalties total $1,215,000. Most Recent Significant Recordkeeping Citation

    4. OSHA’s Houston North Area Office began its investigation March 2 in response to a complaint alleging that Goodman Manufacturing was not properly recording workplace injuries and illnesses in violation of OSHA’s regulations. The investigation determined that Goodman had either not recorded or failed to properly record the nature and/or duration of 72 percent of employee injuries and illnesses from January 2008 to March 15, 2010, on its log. Most Recent (continued)

    5. Although Goodman was extremely knowledgeable about OSHA recordkeeping requirements, it made many unsupportable decisions that resulted in the deficiencies found by the agency. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for OSHA’s requirements or employee safety and health. Most Recent (continued)

    6. Regulations Preamble Frequently Asked Questions Interpretation Letters See also, OSHA’s New Recordkeeping Handbook http://www.osha.gov/recordkeeping/handbook/index.html Sources of Authority

    7. Recordkeeping ? common sense Recordkeeping ? plain English Recordkeeping ? fairness Recordkeeping ? Workers’ Compensation The Preliminary OSHA Recordkeeping “Rules”

    9. Reported or observed Delay in reporting Good faith Was There an Event or Exposure?

    10. Who: Something must happen to: An employee of the facility. Visiting employees from another Company establishment. §1904.30(b)(4) Temporary employees – Employees from a temporary help service, employee leasing service, etc., should be recorded on your Logs “if you supervise them on a day-to-day basis.” §1904.31(b)(2). And maintain OSHA 301 Forms. See Interpretation Letter to E. Foulke (6/23/03). Even if temp agency says that they keep a Log. §1904.31(b)(4). See FAQ 31-1. Events and Exposures

    11. How is the term "supervised" in section 1904.31 defined for the purpose of determining whether the host employer must record the work-related injuries and illnesses of employees obtained from a temporary help service? The host employer must record the recordable injuries and illnesses of employees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervision occurs when "in addition to specifying the output, product or result to be accomplished by the person's work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.” OSHA FAQ 31-1

    12. General guide Think “instantaneous = injury.” Cases resulting from anything other than an instantaneous event or exposure are considered illnesses. Did the Employee Experience an Injury or Illness?

    13. Is the Case Work-Related?

    14. When an injury or illness that either causes or contributes to the employee’s condition occurs on the premises of an employer, there is a geographic presumption that the case is work related. §1904.5(b)(1) Think of the employer’s premises as a Big Circle. Anything that is reported to have happened in the Big Circle is presumed to be work related. Work Relationship

    15. While walking down a level, seamless hallway, an employee’s right knee buckles. No condition in the hallway caused the employee’s knee to buckle. Walking down the hallway, the employee trips, injuring his right ankle. No condition caused or contributed to trip; he was just clumsy. Walking around the corner on the hallway, an employee’s ankle rolls over, injuring his foot. No condition caused or contributed to the injury. The Geographic Presumption: 8 Scenarios

    16. Employee walks up stairs to go to a meeting when his knee starts to hurt. The employee did not trip or mis-step - no condition on the stairs caused the employee’s knee to start hurting or contributed to the condition. An employee is sitting at his desk when he sneezes and injures his back. The Geographic Presumption: 8 Scenarios – (continued)

    17. An employee bends down to tie his shoe and injures his back. An employee drops a tool. When he bends down to pick it up, he injures his back. An employee’s job involves, in part, walking across a concrete warehouse floor. The employee reports that his feet hurt. The Geographic Presumption: 8 Scenarios – (continued)

    18. Interpretation Letter to B. Principe (1/13/04). “In each of the eight scenarios . . . the activity engaged in . . .at the time of the injury (walking, tripping, climbing a staircase, sneezing, bending down) is an "event" which would trigger application of the presumption. . . . The Geographic Presumption: Conclusion

    19. Thus, in the absence of evidence to overcome the presumption, an ankle injury caused by a trip that occurred while the employee was walking down a level seamless hallway at work is work-related, regardless of whether the accident is attributable to a defect in the hall. By the same reasoning, if the activity of walking down a hallway caused the employee's knee to buckle or to sprain the ankle, the injury is work-related. If an injury or illness did not result from an identifiable event or exposure in the work environment, but only manifested itself during work, the injury is not work-related.” The Geographic Presumption: Conclusion - (continued)

    20. Work Relationship Geographic Presumption The Big Circle

    21. An employee experienced an injury or illness in the work environment before he/she clocked in for the day. Is the case work related even if the employee was not on the clock? “Yes. For purposes of OSHA recordkeeping injuries and illnesses occurring in the work environment are considered work-related. Punching in and out . . . does not affect the outcome for determining work-relatedness.” OSHA FAQ 5-11

    22. Work-relatedness is presumed for cases resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) specifically applies. Employee present in the work environment as a member of the general public. Symptoms surface at work but result from a non-work-related event/exposure that occurs outside the work environment. 9 Exceptions to the Geographic Presumption of Work Relationship

    23. Cases resulting solely from voluntary participation in a wellness program, medical, fitness or recreational activity, or blood donation, flu shot, etc. See Interpretation Letter to B. Principe (2/24/09). Cases resulting from employee preparing or consuming food. (Note, if an employee gets sick from eating food contaminated by workplace contaminants or gets “food poisoning” from food supplied by the employer, the case is considered work related.) Exceptions (continued)

    24. Cases resulting from employee doing personal tasks unrelated to work at the establishment, outside assigned working hours. Personal tasks = tasks totally unrelated to the employee’s job. For example, using the Company break area to work on a child’s science fair project. FAQ 5-5. (Smoke breaks taken outside during work and employee fights in the parking lot before work do not meet this exception.) See Interpretation Letter to L. Johnson-Koch (1/15/04). See also FAQ 5-6. Exceptions (continued)

    25. Employee is knitting a sweater for her daughter during her lunch break. She lacerates her hand and needs sutures. She is clearly engaged in a personal task. Are lunch breaks or other breaks considered “assigned working hours”? Is the case recordable? Exceptions to Work Relationship

    26. Yes, lunch breaks are considered part of the assigned working hours and the sutures make the case recordable. See OSHA Interpretation Letter to Dr. Flores (3/10/05). Exceptions to Work Relationship (continued)

    27. Cases resulting from employee’s personal grooming or self-medication for a non-work-related condition, or intentionally self-inflicted injuries or illnesses. See FAQ 5-3. Exceptions (continued)

    28. What activities are considered “personal grooming” . . . ? “. . . activities directly related to personal hygiene, such as combing and drying hair, brushing teeth, clipping fingernails and the like. Bathing or showering at the workplace when necessary because of an exposure to a substance at work is not within the personal grooming exception in 1904.5(b)(2)(vi). Thus, if an employee slips and falls while showering at work to remove a contaminant to which he has been exposed at work, and sustains an injury that meets one of the general recording criteria listed in section 1904.7(b)(1), the case is recordable.” OSHA FAQ 5-3

    29. Common colds or flu. Cases caused by a motor vehicle accident in the company parking lot or access road while employee commutes to/from work. See FAQ 5-10 regarding employer control of parking lots. Interpretation Letter to Neil Wasser (8/26/08), finger in the car door Interpretation Letter to Lori Vaught (7/14/08), fall from car Exceptions (continued)

    30. If a maintenance employee is cleaning the parking lot or an access road and is injured as a result, is the case work-related? Yes, the case is work-related because the employee is injured as a result of conducting company business in the work environment. If the injury meets the general recording criteria of Section 1904.7 (death, days away, etc.), the case must be recorded. OSHA FAQ 5-1

    31. How does OSHA define a “company parking lot” for purposes of recordkeeping? “Company parking lots are part of the employer’s premises and therefore part of the establishment. These areas are under the control the employer . . . .” Shared parking lots or public parking are not part of the establishment, except for the owner of the building or lot, and therefore NOT a parking lot for recordkeeping purposes. OSHA FAQ 5-10

    32. Mental illness – not work-related unless an employee voluntarily provides opinion of LHCP with appropriate training and experience (e.g., psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating employee has work-related mental illness. §1904.5 See FAQ 5-12 regarding stress. Exceptions (continued)

    33. Section 5(b)(3) of the Regulations directs employers to evaluate the employee’s work duties and environment to decide if they either caused or contributed to the resulting injury or illness or significantly aggravated a non-work-related condition. “A case is work related if it is more likely than not that an event or exposure in the work environment was a cause of the injury or illness. The work event need only be one of the causes; it need not be the sole or predominant cause.” See Interpretation Letter to L. Johnson-Koch (1/15/04). If you’re not sure whether the illness or injury occurred at work?

    34. No geographic presumption. E.g., lunch at McDonalds. Wherever an employee or supervised worker is working or present as a condition of their employment. See 1904.5(b)(1). Work Relationship Outside the Big Circle

    35. Travel status is work-related if employee was engaged in work activities “in the interest of the employer.” Travel status is not work-related once: The employee checks into hotel. Once the employee establishes his “home-away-from-home,” the commute between temporary residence and job each day is not considered work-related. If employee takes a detour for personal reasons, e.g., a side trip. Travel Status

    36. There are two types of aggravation cases: “Significant” aggravation of a pre-existing, non-work-related condition §1904.5(b)(4) Aggravation of a prior, work-related condition § 1904.6(a)(2) Aggravation Cases

    37. There must be a pre-existing, non-work-related condition. An event or exposure occurs in the work environment. The existing status changes or the level of treatment is increased. 1st aid ? medical treatment Medical treatment ? restricted work activity Restricted work activity ? day(s) away from work “Significant Aggravation” Cases

    38. Interpretation Letter to Glenn Podonsky (5/5/08), heart attack/ treadmill Interpretation Letter to Lisa Beers (8/11/06), hip fracture/ osteoporosis Interpretation Letter to Jill Ryan (8/11/06), pre-existing condition/lifted bucket Recent Interpretation Letters

    39. There is a prior, work-related condition that is resolved. See FAQ 6-1 An event or exposure occurs in the work environment. This constitutes a new case that may be OSHA-recordable if one of the following applies: Medical treatment Restricted work activity Day(s) away from work Loss of consciousness Death Aggravation of Prior, Work-Related Condition

    40. All signs and symptoms disappear No medical treatment No restricted work activity or day(s) away from work An employee has “completely recovered,” when the employee is “fully healed,” or “cured.” If the symptoms disappear for a day and reappear the next day, OSHA would consider that “strong evidence” that the employee was not completely healed. FAQ 6-1 What does “resolved” mean?

    41. Is the Case Recordable?

    42. All first aid treatments are listed at 1904.7(b)(5)(ii) Status of person providing treatment is not relevant. §1094.7(b)(5)(iv). “Medical Treatment” does not include: Visits to LHCP solely for observation or counseling. Diagnostic procedures such as x-rays, blood tests, and use of prescription medication solely for diagnostic purposes, e.g., eye drops to dilate pupils. §1904.7(b)(5)(i) “I don’t take no stinkin’ prescriptions.” §1904.7(b)(5)(v) and see D. Harris Interpretation Letter (10/29/01). “Medical Treatment” Beyond First Aid

    43. One chart lists all “First Aid.” Any treatment not on chart is “Medical Treatment” Using non-prescription medication at non-prescription strength (recommended use of non-prescription medication at prescription strength = medical treatment, including Ibuprofen at > 467 mg, Diphenhydramine at greater than 50 mg, Naproxen Sodium at greater than 220 mg, and Ketoprofen at greater than 25 mg, per FAQ 7-8) So, What Constitutes “First Aid?”

    44. The employee tells the doctor I do not want or need the prescription. The employee does not take the prescription and tells a plant official he did not take it and provides the plant official the prescription. A company doctor reviews the case and states the prescription was not necessary. The medical center doctor later agrees the prescription was not necessary. “Once your employee received medical treatment beyond first aid, i.e., a prescription for medication from the examining physician, the case satisfied the OSHA injury and illness recording requirements.” February 6, 2007, Interpretation Letter

    45. May 21, 2010 – Dr. Betsy D. Buehrer “Your letter requests an interpretation relating to exercises recommended for a short period of time by an on-site health care professional when an employee is experiencing minor pain that has been determined to be work-related. * * * OSHA . . . considers therapeutic exercise as a form of physical therapy and intentionally did not include it as a first aid treatment under 1904.7(b)((5)(ii). * * * Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case.” Exercise Interpretation Letter

    46. RWA occurs when: Employer or PLHCP recommends that employee not perform one or more routine functions of the job, or not work the full workday that employee would otherwise have been scheduled to work. Routine functions: Those work activities the employee regularly performs at least once per week. Restricted Work Activity

    47. An employee hurts his left arm and is told by the doctor not to use the left arm for one week. The employee is able to perform all of his routine job functions using his right arm (though at a slower pace and the employee is never required to use both arms . . . Would this be considered restricted work? “No. If the employee is able to perform all of his or her routine job functions (activities that the employee performs regularly at least once a week), the case does not involve restricted work. Loss of productivity is not considered restricted work.” OSHA FAQ 7-4

    48. When the LHCP issues the restriction – assess it in light of the routine job functions to determine if, in fact, it affects routine job functions. Document the file accordingly. Begin count on the day following the injury or onset of illness symptoms. Do not record RWA or job transfers that are only for the day the injury occurred or illness began. Restricted Work Activity (continued)

    49. Working more slowly ? RWA. §1904.7(b)(4). If LHCP recommends a restriction that does qualify as RWA and the employee ignores it, record as RWA. §1904.7(b)(4)(viii). Restricted Work Activity (continued)

    50. If the employer chooses not to accommodate a restriction for a full-time or part-time employee, or recommends that the employee stay out of work despite a doctor’s recommendation of RWA, those days must be recorded as DAFW. Restricted Work Activity (continued)

    51. 1904.7(b)(3)(ii) and 1904.7(b)(4)(viii) provide: “If you receive recommendations from two or more . . .LHCPs (regarding the need for DAFW or RWA), you may make a decision as to which is the most authoritative, and record based upon that recommendation.” FAQ 7-10a (issued in 12/04) provides: “If there are conflicting contemporaneous recommendations regarding medical treatment, or the need for DAFW or RWA, but the medical treatment is not actually provided and no DAFW or days of RWA have occurred, the employer may determine which recommendation is the most authoritative and record on that basis. In the case of prescription medications, OSHA considers the medical treatment is provided once a prescription is issued.” “. . . Once medical treatment is provided . . . or days away from work or work restriction have occurred, the case is recordable.” See Interpretation to D. Coble (5/15/07) – “contemporaneous.” Dueling Doctors - Conflicting Medical Opinions- FAQ 7-10a

    52. All work-related loss of consciousness cases must be recorded, regardless of the length of time that the employee remains unconscious. See §1904.7(b)(6) Loss of Consciousness

    53. Chipped or broken teeth are considered a significant injury or illness when diagnosed by a physician or health care professional. FAQ 7-17. Significant Injury or Illness Diagnosed by LHCP

    54. Needlesticks or sharps injuries are automatically recordable as injuries if they are contaminated with blood or Other Potentially Infectious Material (OPIM). If injury case later results in an infectious disease diagnosis, update entry and change classification from injury to illness. Needlesticks, Sharps and Bloodborne Pathogens Cases

    55. An employee is knitting in the cafeteria during lunch and slips with the needle, causing three stitches to the employee’s left hand. The Big Circle. None of the exceptions to work relationship apply. Scenario 1

    56. An employee goes out to her car to smoke during a scheduled break and slips coming back to work, breaking her ankle. The Big Circle. Parking lot exception does not apply. Scenario 2

    57. After driving heavy machinery all day, an employee goes to his supervisor complaining of soreness or pain in his shoulder. The supervisor suggests the employee consider doing some stretching and flexing exercises to help with work hardening. Buehrer 5/21/2010 Interpretation Letter. Therapeutic exercise = self-administered physical therapy. Scenario 3

    58. An employee complains of discomfort in her right shoulder from a work-related activity and goes to her physician for treatment. The doctor prescribes 600 mg of Ibuprofen to the employee. OTC medication at prescription strength = medical treatment. FAQ 7-8. Scenario 5

    59. An employee from the corporate headquarters is visiting a facility to help with installation of a new piece of equipment. While working on the equipment, the employee strains her right shoulder, requiring medical treatment beyond first aid. Record on the Log of the facility where the event occurred. Scenario 7

    60. A worksite has an annual picnic. A management employee is required to work at the picnic serving food. The employee is seriously burned, requiring medical treatment beyond first aid. Employee present as a condition of employment. Scenario 8

    61. An employee has a chronic back problem and exacerbates his condition while lifting a case of product. Medical treatment is given beyond first aid. Significant aggravation to pre-existing condition. Scenario 9

    62. An employee claims to have slipped at work. She goes to the local hospital and requests a prescription medication for pain. She is given over-the-counter medication. She then travels to another hospital and requests and receives a prescription medication. A subsequent review of the case by the best qualified physician indicates the prescription was overmedication for the case. FAQ 7-10a- cannot “undo” Rx once a prescription is written. Scenario 11

    63. An employee injures his back and goes to his own doctor, who prescribes that the employee not work for one week. The company provides a board-certified physician to see the employee after the employee is off for one day. This physician states the employee could have come back to work with restrictions. The employee does not come to work for one week. A DAFW must be recorded once it occurs. Only a doctor or the company can recommend DAFW, not employee. Scenario 12

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