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Carla J. Gunnin CONSTANGY, BROOKS & SMITH, LLP 230 Peachtree Street, Suite 2400 Atlanta, GA 30303

NUTSEA OSHA RECORDKEEPING TRAINING September 28, 2010. Carla J. Gunnin CONSTANGY, BROOKS & SMITH, LLP 230 Peachtree Street, Suite 2400 Atlanta, GA 30303 404-525-8622 cgunnin@constangy.com. OSHA Recordkeeping Citations. Proposed penalty: $3,000.00. OSHA Recordkeeping Citations.

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Carla J. Gunnin CONSTANGY, BROOKS & SMITH, LLP 230 Peachtree Street, Suite 2400 Atlanta, GA 30303

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  1. NUTSEA OSHA RECORDKEEPING TRAINING September 28, 2010 Carla J. Gunnin CONSTANGY, BROOKS & SMITH, LLP 230 Peachtree Street, Suite 2400 Atlanta, GA 30303 404-525-8622 cgunnin@constangy.com

  2. OSHA Recordkeeping Citations Proposed penalty: $3,000.00

  3. OSHA Recordkeeping Citations Proposed penalty: $3,000.00

  4. OSHA Recordkeeping Citations Proposed penalty: $3,000.00

  5. OSHA Recordkeeping Citations Proposed penalty: $63,000.00

  6. Most Recent Significant Recordkeeping Citation • 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.

  7. Most Recent (continued) • 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.

  8. Most Recent (continued) • 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.

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

  10. The Preliminary OSHA Recordkeeping “Rules” • Recordkeeping ≠ common sense • Recordkeeping ≠ plain English • Recordkeeping ≠ fairness • Recordkeeping ≠ Workers’ Compensation

  11. OSHA Recordkeeping ≠ Workers’ Compensation • The OSHA recordkeeping analysis is based on federal law and uses different logic and reasoning than state workers’ compensation rules. • Recording a case “does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits.” §1904.0 See FAQ 0-2

  12. *** OSHA FAQ 0-2 *** • What is the effect of workers’ compensation reports on the OSHA records? • “. . . (R)ecording an injury or illness neither affects a person’s entitlement to workers’ compensation nor proves a violation of an OSHA rule. The rules for compensability under workers’ compensation differ from state to state and do not have any effect on whether or not a case needs to be recorded on the OSHA 300 log. . . . Many cases will be OSHA recordable and compensable under workers’ compensation. However some cases will be compensable but not OSHA recordable, and some cases will be OSHA recordable but not compensable under workers’ compensation.”

  13. Key Differences between OSHA Recordkeeping and Workers’ Compensation • Scope of work relationship • New cases • Rulings by Workers’ Comp judge

  14. THE BIG PICTURE - OSHA RECORDKEEPING ANALYSIS Event or Exposure Injury/Illness 9 Exceptions to Work Relationship Work-Related Special Rules for Significant Diagnosed Injury/Illness General Recording Criteria Other Special Recordkeeping Rules • Cancer • Chronic Irreversible Disease • Fracture • Punctured Eardrum • Medical Treatment • Restricted Work Activity • Day(s) Away from Work • Loss of Consciousness • Death • Needlesticks and Sharps • Medical Removal • Hearing Loss • Tuberculosis

  15. Was There an Event or Exposure?

  16. What is an event or exposure? • The event or exposure must be reported or observed. • If nothing happens, there’s no case to analyze (e.g., purely preventative activities when there’s been no event or exposure). • Interpretation Letter to Marie Williams More (5/22/08).

  17. Events and Exposures • 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. SeeInterpretation 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.

  18. *** OSHA FAQ 31-1 *** • 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.”

  19. Did the Employee Experience an Injury or Illness?

  20. Injury v. Illness • Injuries include cases such as, but not limited to, cuts, fractures, sprains, or amputations. • Illnesses include such cases as a skin disease, respiratory disorders, or poisoning. §1904.46 • General guide • Think “instantaneous = injury.” • Cases resulting from anything other than an instantaneous event or exposure are considered illnesses.

  21. Is the Case Work-Related?

  22. Work Relationship • 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.

  23. Rule Violations Unsafe Acts Acts of God The Big Circle Unpreventable acts Work Relationship Geographic Presumption The Big Circle Normal body movements Acts of Violence Personal tasks during the work day Performing Work Tasks 5(b)(2) exceptions

  24. The Geographic Presumption -8 Scenarios • 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.

  25. The Geographic Presumption -8 Scenarios – (continued) • 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.

  26. The Geographic Presumption:8 Scenarios – (continued) • 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.

  27. The Geographic Presumption - Conclusion • 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. . . .

  28. The Geographic Presumption Conclusion - (continued) 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.”

  29. *** OSHA FAQ 5-11*** • 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.”

  30. 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 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.

  31. Exceptions (continued) • 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.)

  32. Exceptions (continued) • 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.

  33. Exceptions to Work Relationship • 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?

  34. Exceptions to WorkRelationship (continued) 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).

  35. Exceptions (continued) • 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.

  36. *** OSHA FAQ 5-3 *** • 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.”

  37. Exceptions (continued) • 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 • Interpretation Letter to Richard Weber (10/29/07), radio fire • Interpretation Letter to Rick White (5/10/06), 2 hours after work

  38. *** OSHA FAQ 5-1 *** • 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.

  39. *** OSHA FAQ 5-10 *** • 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.

  40. Exceptions (continued) • 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.

  41. *** OSHA FAQ 5-12 *** • Is work-related stress recordable as a mental illness case? • “Mental illnesses, such as depression or anxiety disorder, that have work-related stress as a contributing factor, are recordable if the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) state that the employee has a mental illness that is work-related, and the case meets one or more of the general recording criteria.”

  42. If you’re not sure whether the illness or injury occurred at work? • 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).

  43. Work Relationship Outside the Big Circle • 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). • Note: the Act and 1904 Regulations do not apply outside the United States and its territories. See Interpretation Letter to J. Dempsey (8/26/04).

  44. Travel Status • 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. • See Interpretation Letter to John A. Dempsey, Jr. (8/26/04) and §1904.5(b)(6).

  45. Traveling Outside the Normal Geographic Area Office Airport Airport Morning Commute Hotel Home Restaurant Customer/Client

  46. Traveling Within the Normal Geographic Area Sales Call Sales Call Home Office Sales Call Sales Call

  47. What About Work at Home? • Cases occurring while working at home are work-related if the employee is performing work for pay in the home, and if the case is directly related to the performance of work rather than to the home environment. • Interpretation Letter to Neil Wasser (8/26/08)

  48. *** OSHA FAQ 5-7 *** • If an employee voluntarily takes work home and is injured while working at home, is the case recordable? • No. Injuries and illnesses occurring in the home environment are only considered work-related if the employee is being paid or compensated for working at home and the injury or illness is directly related to the performance of the work rather than to the general home environment.

  49. Aggravation Cases 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)

  50. “Significant Aggravation” Cases • 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

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