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Silence is Golden – The Workplace Injuries Construction Employers Do, and Do Not, Need to Record on OSHA Forms

By: Michael Metz-Topodas, Esq. Partner, Saul Ewing Arnstein & Lehr LLP

The old adage “Sometimes less is more” may provide sound advice when it comes to completing Occupational Safety and Health Administration (OSHA) regulations paperwork. Employers must keep track of workplace injuries and illnesses using a series of OHSA-supplied forms: the 300 Log to record each incident throughout the year, the 301 Report for each particular incident, and the 300A Summary of yearly statistics. Most contractors know these forms all too well and dutifully complete them as part of routine administrative paperwork. OSHA reporting, however, deserves careful attention because it has far-reaching business implications, including insurance costs, bidding qualifications, regulatory compliance, and industry reputation to potential customers and employees.

Overview
Under OSHA’s record-keeping regulations, employers must document each fatality, injury, or illness that (1) is work-related, (2) is a new case, and (3) meets one or more prescribed recording criteria. This record-keeping obligation applies to all employers except those who had no more than 10 employees at any time in the last calendar year.1 Although each component for determining record-keeping obligations deserves its own article, a brief overview of these elements provides sufficient background for contractors to know what questions to ask when preparing OSHA forms.

Work-Related Injury or Illness
An employer should treat an injury or illness as work-related if an event or exposure in the work environment either caused or contributed to an employee’s resulting condition or significantly aggravated an employee’s pre-existing injury or illness. Although an employer should initially presume any injury or illness occurring in the work environment qualifies as work-related, OSHA regulations include a long list of exceptions to this presumption. “Work-related” does not cover workplace occurrences unrelated to job functions or performance, including personal activities such as commuting or eating lunch. Determining “work-related” can often entail complicated, case-by-case analyses that need to consider both an employee’s prior conditions and the precise activity and causes underlying the incident. The slightest change in facts can convert a recordable event to one a contractor can leave off its OSHA forms. With such factual nuances, OSHA can only provide basic illustrative, but not necessarily informative, examples—e.g., noting that tripping over the family dog while working from home is not a work-related event.

New Case
OSHA’s regulations treat an injury or illness as a new case if the employee has no prior unrecovered injury or illness on the affected body part. Employers need not seek a physician’s opinion about whether a particular injury or illness meets the definition of a “new case,” but if employers do obtain such an assessment, they must follow it. Not all new cases qualify as recordable events where the other components—work-related, within the enumerated recording criteria—are not met.

Recording Criteria
Employers must record work-related, new cases only where they lead to an employee’s death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. Workplace deaths must be reported to OSHA within eight hours. Days away from work refer to the time an employee cannot work, regardless of whether the employer’s work schedule requires the employee to work. An employee has restricted work where the employee cannot perform routine job functions or cannot work a full day. Employers must also record events that lead to a physician recommending an employee’s restriction from routine job functions. Employers, however, need not record an employee’s injury or illness that only causes a loss of productivity. Job transfer means any assignment for any part of the day to a job other than the employee’s regular job.

To avoid confusion about exactly what medical treatment goes beyond first aid, OSHA’s regulations provide a long and exhaustive list of treatments that constitute first aid, such as dressing wounds, removing splinters, and giving non-prescription medications. Any medical treatment not on OSHA’s list would fall “beyond first aid” and would trigger a reporting obligation. With such a long and varied set of criteria used to determine whether a recording obligation is triggered, figuring out when to, and not to, record an injury or illness becomes a complicated analysis.

Reasons to Avoid Over-reporting
Contractors should devote the energy required to determine whether a workplace injury or illness creates a reporting obligation because an employer’s OSHA records can have broad and long-range implications. Over-reporting—i.e., recording incidents where the contractor has no regulatory obligation to do so—can impact contractors’ insurance coverage and costs, reputation, and credibility.

  • Insurance: The number of incidents recorded on an employer’s OSHA 300 log will affect three key metrics—Total Recordable Incident Rate (TRIR), Days Away, Restricted, or Transferred (DART), and Experience Modification Rate (EMR). As recorded incidents increase, TRIR, DART, and EMR scores tend to get worse. Poor “numbers” in these metrics can lead to higher insurance premiums and even difficulty obtaining insurance, including general liability and workers’ compensation policies.
  • Reputation: A relatively long 300 Log or poor TRIR, DART, and EMR numbers (or, commonly, both) also can affect the perceptions potential customers or clients and employees form about a contractor. Bids, proposals, or related submissions often require contractors to disclose safety statistics to provide a comparable metric of company safety. Often potential employees can access some of these statistics to determine contractors’ commitment to workers’ safety.
  • Credibility: Improperly recording workplace injuries and illnesses can also invite unnecessary OSHA inquiries. For example, by recording a workplace injury or illness that does not qualify as recordable, an employer risks sending a mixed message. Either the employer erroneously listed the workplace injury or illness on the 300 Log, or the employer had grounds to list the incident but failed to complete the log properly. Such confusion could give rise to a further OSHA inquiry, especially in the course of an inspection during which OSHA routinely reviews all record-keeping forms.

Take-Aways
Based on the above, contractors should adjust their safety and compliance programs along these lines:

  • Do investigate all facts and circumstances underlying any workplace injury and illness to determine whether all requirements for a recordable incident are met.
  • Do consult a safety manager, safety consultant, insurance broker, or OSHA counsel to make a final determination about whether to record a particular workplace injury and illness.
  • Do not record on any OSHA form any workplace injury and illness that requires only first aid or other minor attention.
  • Do not record incidents that occur in the workplace but do not involve activity related to job performance.
  • Do not default to recording any and all workplace injuries and illnesses instead of consulting with professionals to comply strictly with OSHA’s recording requirements.

Despite these helpful general guidelines, determining which workplace injuries and illnesses to record requires careful analysis based on a well-developed understanding of OSHA’s regulatory scheme to prevent over-reporting, which can harm a contractor’s reputation and lead to significant business consequences.

1Conversationally referred to as the “rule of ten,” some have interpreted this exception to record-keeping as an exception to all OSHA regulations. This is incorrect. Regardless of record-keeping requirements, no such blanket exception to OSHA regulations exists.


Michael Metz-Topodas is a partner of Saul Ewing Arnstein & Lehr LLP. As a construction litigator, he represents general contractors, subcontractors, owners, designers, and suppliers through all stages of private, public, and federal projects. Michael helps clients navigate construction project disputes, including delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, and payment claims. He also defends clients against OSHA citations and advises on OSHA compliance issues. He can be reached at michael.metz-topodas@saul.com and (215) 972-7777.


Posted September 21, 2022