OSHA Injury Log Requirement — Will OSHA Clarify?

23 April 2012 Labor & Employment Law Perspectives Blog

As a regulation under the Occupational Safety and Health Act, the U.S. Department of Labor (DOL) requires that employers keep a log of deaths, injuries, and illnesses. However, the regulation only requires employers to log deaths, injuries, and illnesses that are “work-related.” The regulation defines work-related as those instances when the workplace “contributed to” the resulting condition. This vague definition has not provided employers with sufficient guidance about when they should or should not log injuries, and often creates frustrating situations in which employers must make a judgment call about whether to log such injuries. For many employers, this judgment call comes at great expense because it requires consultation with experts and the formation of special committees to provide recommendations on whether injuries are work-related.Even when an employer relies on objective evidence that a particular injury was not work-related, it still runs a risk in deciding not to log the injury. A federal appellate court recently dealt with a case in which the DOL fined an employer for failing to log an injury. In Caterpillar Logistics Services, Inc. v. Solis (decided on March 20, 2012), the employee in question became injured and missed work with “tennis elbow” and “golf elbow.” After conferring with a doctor and convening a special panel, the employer decided not to log the injuries because it was determined that the injuries were not work-related. The DOL fined the employer $900 for not logging the injury, and an administrative law judge (ALJ) upheld that decision primarily based upon his reliance on the DOL’s expert. The appellate court vacated the ALJ’s decision, finding that the ALJ failed to consider statistical information presented by the employer in determining whether the DOL proved that the workplace contributed to the employee’s injuries.

The court also questioned the DOL’s requirement (and rationale behind the requirement) that employers must only log work-related injuries. The DOL’s rationale for the regulation is so that the DOL can see which occupations are more hazardous than others and then target its enforcement efforts at the most hazardous occupations. However, as the court pointed out, only a log of all injuries — and not just those deemed work-related by employers — would provide a sound statistical basis for understanding which occupations are more hazardous than others. A log of all injuries also would remove the potentially high costs to employers to determine whether an injury is work-related. The court suggested that the DOL reconsider its work-related requirement for logging injuries.

Until the DOL reexamines its injury log requirement, employers remain in the unenviable position of making judgment calls on whether injuries to employees are work-related and must be logged.

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