Form 300 Logs
10 Ways to Get into Trouble with OSHA
BY ARTHUR G. SAPPER

Consistent with Administrator Dr. David Michaels’ statement that OSHA is a “regulatory and enforcement agency and we’re going to act like it,” the agency has begun a national emphasis program for inspection of employers’ Form 300 injury and illness logs, which can result in penalties and public allegations of willfulness.

Here are 10 common recordkeeping errors that the safety professional should make sure to avoid.

Work Restrictions: The most common recordkeeping error by far is misunderstanding work restrictions. Employers commonly believe that if an injured employee can still perform useful but less demanding work, the injury is not recordable as a work restriction. That is wrong, even if the less demanding work is within the employee’s job description.

OSHA’s regulations state that if a licensed medical professional recommends that an injured employee not perform, or the employer keeps the employee from performing, one or more “routine functions” of a job, a restriction occurs. A “routine function” is a work activity regularly performed by the injured employee at least once per week. So assigning sedentary welding jobs to an injured welder who usually climbs ladders every day, or assigning office work to an injured carpenter, are work restrictions, and are recordable.

Light Duty: Injured employees frequently return from physicians with slips stating, “light duty.” Employers are often surprised to find that OSHA’s regulations require that such a “light duty” recommendation be treated as a work restriction unless the physician affirmatively states that the employee may perform all his routine job functions. So when faced with a vague restriction such as “light duty,” employers should ask the physician to clarify what tasks the employee may not perform. If any such task is one that the employee regularly performs at least once a week, the injury is a recordable restriction.

Employee Witness: Employers often fail to give proper weight to an employee’s account of his injury, saying that there were “no witnesses” to the accident. They overlook that the employee is himself a witness and that his account must be given as much weight as the circumstances warrant. If the employee’s statement is not convincing enough, the prudent employer will document the facts and reasons indicating why it is not.

Employee Failure to Promptly Report: Employers sometimes fail to record injuries because the employee did not report it immediately. Although delay may violate company policy or cast doubt on the employee’s credibility, it does not necessarily mean that a work-related injury did not occur. It may simply mean that the injury seemed more serious after a day or two had passed. The key questions are still whether the employee’s account is credible, and whether other evidence refutes his account.

Misunderstanding Aggravation: Employers often misunderstand OSHA’s test for recording a workplace aggravation of a non-occupational injury; they think that if a work incident caused a flare-up of an injury that originally occurred off the job or with a previous employer, the aggravation is not recordable. This is often incorrect.

Although the regulations appear to say that an aggravation is not recordable unless the workplace “significantly” aggravated a previous non-occupational injury, “significant” is (confusingly) defined by another provision as meaning severe enough to result in a restriction, days away from work, or medical treatment. Thus, if any workplace event or exposure – no matter how insignificant – has aggravated a nonoccupational injury (such as tennis elbow) enough to tip it into, for example, a restriction, that minor aggravation is “significant” and thus recordable.

Confusion of OSHA Recordkeeping with Workers’ Compensation: Recordkeepers and the physicians they consult often reason that, because the “preponderant” or “major” cause of an injury was non-occupational, the case is not OSHA recordable. While this may well reflect the test for work-relatedness or aggravation under that state’s workers’ compensation law, it does not reflect OSHA’s tests for those concepts, which do not ask about “preponderant” or “major” causes.

Employers should make sure that their recordkeepers and the physicians they consult apply OSHA’s recordability criteria – and should especially be on the lookout for such confusion if their recordkeepers are also responsible for determining compensability.

First Aid: The regulations lay down a hard-and-fast rule: A medical treatment is recordable unless it is on OSHA’s first aid list. They state: “This is a complete list of all treatments considered first aid for [OSHA recordkeeping] purposes.” A treatment that is first aid in common parlance may not be on OSHA’s list. For example, devices for extracting foreign bodies from eyes with nylon loops or magnets are often sold as “first aid” products, but they are not on OSHA’s list. The wise employer will thus ensure that his recordkeeper is checking the list, not relying on advertisements, to determine whether a treatment is first aid.

Prescription Medicine: OSHA’s recordkeeping rules state that the use of a prescription drug is recordable as medical treatment. Employers often overlook, however, that a physician’s recommendation for an employee to use even a nonprescription drug at “prescription strength” is also recordable. What is “prescription strength?” OSHA’s Recordkeeping Handbook lists too few prescription strengths to be useful, and calling OSHA area offices is often of little help. Employers will have to check with their local pharmacies for this information.

Second Opinions: OSHA interpretation letters state that, once an employee has been restricted by, missed work on the recommendation of, or been medically treated by a first physician, the case is recordable – even if a second physician says that the treatment, missed work or restriction was unnecessary, and the employer finds the opinion authoritative. On the other hand, the employer may always follow a second physician’s opinion on work-relatedness and aggravation.

Later Events: Employers often fail to keep track of recordable events that occur long after an initial injury, such as a first-time medical treatment or restriction given during a later physician visit.

Prudent recordkeepers will have a system for keeping tabs on these subsequent events and for not letting them fall through the cracks. FSM Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission, and a former professor of OSHA law. He has participated in numerous audits and cases involving OSHA injury recordkeeping, and can be reached at 202-756-8246 or asapper@mwe.com.