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Starting next month, OSHA will begin its new National Emphasis Program (NEP) on injury and illness recordkeeping with recordkeeping inspections being conducted at employers’ establishments with low incidence rates in historically high rate industries, as well as inspections of a sample of construction firms. The NEP was developed after last year’s Congressional hearings on the perceived problem of injury and illness underreporting, and is consistent with Secretary of Labor Hilda Solis’ more enforcement-oriented approach to occupational safety and health. The inspections will be conducted over the next twelve months, and it is anticipated that the NEP will be expanded after the initial data is analyzed. Although the NEP is limited to states under federal OSHA’s jurisdiction, state plan OSHA programs are encouraged to conduct their own recordkeeping enforcement initiatives.

The inspections will include a review of medical files for both occupational and non-occupational cases for 2007 and 2008, including 301 forms, Workers’ Compensation forms, absentee reports, and audiograms, for a selected sample of employees. Compliance Officers will also interview employees and members of management to determine both whether the employer has an effective system in place for reporting injuries and whether incentive programs discourage employees from reporting new cases. Facility recordkeepers will be questioned to determine their level of training and knowledge of the recordkeeping regulations, and health care providers will be asked whether the employer has tried to influence the treatments provided and the recordability of cases. In addition, a limited walk-around inspection of the employer’s facility will be conducted to determine if the hazards in the facility are consistent with the injuries and illnesses on the 300 Log, and citations may be issued for any violations that are observed.

To prepare for these inspections, we recommend that employers (1) review the cases that occurred in 2007 and 2008 to determine the accuracy of their OSHA 300 Logs and make sure there is an OSHA 301 or its equivalent for every recordable case; (2) ensure that their recordkeepers have been properly trained; (3) review the effectiveness of both the system for reporting injuries and illnesses and the routing of pertinent medical information from internal and external health care providers to the recordkeeper, and (4) if there is a safety incentive program, evaluate whether the safety incentives improperly discourage the reporting of work-related injuries or illnesses.

If you have any questions about OSHA recordkeeping interpretations, audits, or training, email us: Bill Principe at bprincipe@constangy.com, David Smith at dsmith@constangy.com, Pat Tyson at ptyson@constangy.com, or Neil Wasser at nwasser@constangy.com. You may also call us at 404-525-8622.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.

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