OSHA citations rise as agency turns up heat on HCW injury reporting

Beware of incomplete entries on 300 log

An intense focus on recordkeeping by the Occupational Safety and Health Administration could have far-reaching consequences for health care employers, changing the way they report some injuries and increasing the likelihood that they may receive citations related to their injury and illness reporting.

Already, recordkeeping citations have risen precipitously in health care facilities. In Fiscal Year 2010, nursing homes had more citations related to injury reporting than any other employer group. Failure to properly record injuries and illnesses triggered almost as many citations in hospitals as the Bloodborne Pathogen standard.

OSHA launched a National Emphasis Program on recordkeeping that runs through February 2012. Although hospitals are not one of the targeted employers in the NEP (as nursing homes are), the focus on recordkeeping is far-reaching, cautions Brad Hammock, an attorney with Jackson Lewis in Reston, VA, who specializes in occupational health law.

"In every inspection, compliance officers are going to look at your recordkeeping logs," he says.

OSHA Administrator David Michaels, PhD, MPH, has long expressed concern about underreporting of work-related injuries and illnesses. "The new leadership team at OSHA came into their roles with a belief that there was a gross level of under-reporting across [industries]," says Eric J. Conn, an attorney who heads the OSHA group at Epstein Becker and Green in Washington, DC.

"I think their expectations were misplaced, but it continues to be a strong emphasis of this administration," says Conn. "I think they consider it to be the backbone of their enforcement strategy, to identify the industries and workplaces that need their attention. Those industries and workplaces are identified only by proper and accurate injury recordkeeping."

National emphasis on recordkeeping

In the first 20 months of the recordkeeping National Emphasis Program, federal OSHA conducted 263 inspections and issued 511 violations. Seventy-two inspections and 153 violations were in nursing homes. (State-plan states also have conducted recordkeeping emphasis programs.)

Initially, OSHA targeted employers with low injury rates although they were in industries that have high overall rates. The NEP has since been changed to focus on worksites with a mid-range rate of injuries (4.2 to 8.0 lost or restricted work days or job transfers due to injury per 100 full time employees).

The infractions found are common recordkeeping errors, an OSHA spokesman says. They include:

Failing to record a work-related injury or illness: The injury doesn't have to be caused by a job activity to be work-related. If an employee trips and falls in the parking lot or gets scalded by coffee in the cafeteria, that's still a work-related injury. (See related story, p. 99.) If the work environment exacerbates a pre-existing condition — such as cleaning fumes triggering asthma — that's work-related, too. "OSHA has a very broad definition of work- relatedness," says the OSHA spokesman. "If there's anything in the work environment that caused or contributed to the cause, it's work-related." Of course, OSHA is also on the look-out for employers who willfully fail to record work-related injuries and illnesses. In September 2010, a Houston manufacturer received 83 "willful" citations for failing to record or improperly recording for "nearly three quarters of employee injuries and illnesses for more than two years before the investigation," according to the agency. The fine: $1.2 million.

Failing to report restricted work: If an employee continues working but temporarily avoids doing certain job tasks, that is considered to be restricted work, an OSHA spokesman explained. "If the employee gets hurt and they cannot do routine job functions, then we consider them restricted," he says. A routine job function is "anything an employee would be expected to do at least once a week. " OSHA has created an online "recordkeeping advisor" to help employers determine whether incidents are recordable. (http://webapps.dol.gov/elaws/osha/recordkeeping/)

Incomplete description or entry: Employers must provide a one- to two-line description of the recordable injury or illness on the OSHA 300 log. Having an inadequate description of the incident has been a primary source of citations in hospitals and other industries. The regulation also states that "all work-related needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material" must be included on the OSHA 300 log.

Failing to take privacy precautions: Hospitals also have received citations for failing to follow the privacy provisions. Employers must indicate "privacy concern case" on the OSHA 300 log and place the name and case number on a confidential list if the employee requests privacy or if the injury or illness involves: an intimate body part or the reproductive system, a sexual assault, mental illness, HIV infection, hepatitis, or tuberculosis or sharps injuries involving blood or body fluid exposures.

More requirements to come

OSHA has some other recordkeeping issues on its agenda, and it's a good idea to pay attention to them, legal experts say. These include:

Be prepared to identify musculoskeletal disorder (MSD) injuries. By January 2012, OSHA is expected to finalize its proposed rule to create a separate MSD column on logs. OSHA is defining an MSD as "a disorder of the muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that was not caused by a slip, trip, fall, motor vehicle accident or similar accident." As with other injuries, it is recordable if it is a new, work-related injury that requires medical treatment beyond first aid and/or involves restricted work or days away from work.

Marking a separate column for MSDs will make it easier for employee health professionals to track these injuries, says Mary Ann Gruden, MSN, CRNP, NP-C, COHN-S/CM, manager of Employee Health Services at Allegheny General Hospital and the Western Pennsylvania Hospital in Pittsburgh, and community liaison for the Association of Occupational Health Professionals in Healthcare in Warrendale, PA. However, she notes that different agencies, such as the Bureau of Labor Statistics and the National Institute for Occupational Safety and Health, use slightly different definitions of MSDs. "We need a clear definition and it should be consistent if they want to use it for data analysis," she says.

Reportable incidents may rise with new rules. OSHA has proposed an expansion of reporting requirements. Currently, employers must notify OSHA within eight hours if there has been a work-related fatality or inpatient hospitalization of three or more employees. The proposal would require notification of all work-related inpatient hospitalizations within eight hours and all work-related amputations within 24 hours. (This is in addition to recording the incidents on the OSHA log.)

"It's going to require reporting a much larger number of incidents to OSHA by loosening the reportability criteria," says Hammock. This would include hospitalizations that might occur for observation rather than treatment.

Beware of incentive programs. OSHA doesn't have a regulation that prohibits programs that reward employees for low injury rates, but Michaels has repeatedly expressed concern about disincentives to reporting. In fact, if an employer is found to have failed to report injuries and there is a program that creates an incentive not to report injuries, they could be subject to a "willful" violation, an OSHA spokesman said.

"We're discouraging employers from having programs in place that would discourage reporting," he says. Employers need to address hazards in the workplace, and he notes, "you can't make good decisions on information that's not there."

Be ready for electronic reporting. OSHA is expected to release a proposed rule on electronic reporting by the end of this year. This would allow for more timely sharing of occupational injury and illness data, the OSHA spokesman says. Currently, OSHA collects data annually from about 80,000 workplaces, and about 70% of them submit the information electronically.

Review your recordkeeping accuracy. With so much attention being placed on recordkeeping, it's a good idea to conduct an audit — or hire an outside counsel to do it for you, says Conn. "It's important to make sure your records are current and accurate," he says. For example, you would want to compare your logs with other sources of information about work-related injuries and illnesses, such as workers' compensation or absenteeism records. Be aware that an OSHA inspector also will interview employees and will ask about work-related injuries.