OSHA targets records in employer inspections

Emphasis program boosts inspections, fines

Violations involving recordkeeping are becoming more likely, as a result of the Occupational Safety and Health Administration (OSHA)'s National Emphasis Program (NEP), launched in October 2009, to assess the accuracy of injury and illness recordkeeping by employers.

"Studies purportedly showed a gap between reported injuries versus the numbers drawn from other sources, such as hospital and workers' compensation records," explains Eric J. Conn, a partner based in the Washington, DC office of McDermott Will & Emery. Conn's practice focuses on occupational safety and health law.

"A year into the NEP, OSHA has initiated nearly 200 inspections," says Conn. "The inspections found OSHA violations at 70% of the establishments, and recordkeeping violations at more than half."

OSHA recently tipped its hand about the industries that most need to be on guard for an inspection under the Recordkeeping NEP, notes Conn. In September 2010, OSHA announced an adjustment to the targeting criteria for new inspections, to focus on manufacturing, larger worksites and employers with higher injury rates.

Bigger penalties

"Inspections and the size of enforcement actions are increasing under the Obama administration," says Conn. "OSHA has not only increased the size of its enforcement team, but has also greatly increased the size of its enforcement actions."

In the last year, OSHA has nearly tripled the number of significant cases — those with citations including fines of $100,000 or more. A "Severe Violator Enforcement Program" will generally increase the size of civil penalties, expand the time frame for considering an employer's violation history for repeat violations, and more consistently result in follow-up inspections. These will include inspections of other worksites of the same employer.

"There is no question about it," he says. "Employers should expect to see, and indeed are already seeing, increased fines and an increased focus by OSHA on recordkeeping issues."

While for years, employers have been required to maintain their OSHA 300 logs at the workplace, OSHA is laying the groundwork now for a requirement that employees electronically submit their OSHA logs. "This will help OSHA identify patterns of under-recording, and target employers for recordkeeping inspections," he says.

Employees responsible for safety and health should verify that their OSHA 300 logs are up to date and accurately reflect all reportable injuries and illnesses. "Cross-check the logs against other injury and illness records, such as incident reports, First Aid records, medical records and workers' compensation claims," he recommends. "Most importantly, review OSHA's recordkeeping standards and interpretations."


For more information on OSHA's new emphasis on enforcement, contact:

• Eric J. Conn, McDermott Will & Emery, Washington, DC. Phone: (202) 756-8248. Fax: (202) 756-8087. E-mail: econn@mwe.com.