Earlier this year, a new federal workplace injury and illness recordkeeping regime took effect.  The Occupational Safety and Health Administration (OSHA) has promised that the new requirements will be easier for employers to understand, offer more accurate workplace statistics and will go farther in protecting employee privacy.  OSHA has begun a broad outreach effort geared to employers, including a new page on its agency website devoted to the changes: www.osha-slc.gov/recordkeeping/index/html.
Federal law now requires covered employers to comply with revised regulation 29 C.F.R. Section 1904 and to use OSHA’s new Form 300 (Log of Work-Related Injuries and Illnesses), Form 300A (Summary of Work-Related Injuries and Illnesses), and Form 301 (Injury and Illness Incident Report).  Many covered employers, however, are just now encountering the nuances imposed by OSHA’s new recordkeeping rules.

For example, many employers are reporting uncertainty on the ramifications of the new rules on workers’ compensation reports.  OSHA is assuring covered employers that recording an injury or illness neither affects a person’s entitlement to workers’ compensation nor necessarily proves a violation of some OSHA safety rule.  The provisions of Maine’s Workers Compensation Act of 1992 have no direct impact on whether a case needs to be recorded on an OSHA Form 300 Log.  It is conceivable that some injuries are compensable but not OSHA recordable, while others may be OSHA recordable but not compensable under the Maine Act.

Additionally, the fact that an employee makes a report of injury does not establish the existence of the injury for recordkeeping purposes.  In determining whether an injury is recordable, an employer must first decide whether an injury, as defined by the OSHA regulation, has occurred.  Employers who are uncertain about whether an injury has occurred may refer the employee to a physician or other medical professional for evaluation and may consider that person’s opinion in determining whether an injury exists.   If the person diagnoses a significant injury or illness within the meaning of 29 C.F.R. Section 1904.7(b)(7) and the employer determines that it is work-related, then the injury must be recorded.

Under the old rule, all workplace illnesses had to be recorded, regardless of severity.  Now, recordability requirements are more subtle.  The new regime requires that injuries and illnesses be recorded according to the same criteria, meaning that some minor illnesses no longer need be recorded.  Employers are obligated to record work-related injuries or illnesses only if they result in one of the following: death; days away from work; restricted work or transfer to another position; medical treatment beyond first aid; loss of consciousness, or diagnosis of a significant injury/illness by a physician or some other licensed medical professional.  Despite this liberality, the new rules impose a stricter standard with respect to needlestick and sharps injuries.  Unlike the old standard, employers must now record all such incidents to the extent that the injury involves potential contamination by other person’s blood or a potentially infectious material.  Specific criteria are also provided in the new regulation for deciding when a mental illness is to be considered work-related.

Lastly, the new regulations expand employee privacy protections.  Employers are required to protect employee identities by withholding an individual’s name from a Form 300 for certain types of sensitive injuries and illnesses (e.g., HIV infections, mental illnesses, sexual assaults).  A complete list of all injuries and illnesses considered “privacy concern” cases is provided at 29 C.F.R. Section 1904.29(b)(7).  Moreover, employers are now required to remove employee names before providing injury and illness data to third parties who do not have access rights under the regulation.   However, all covered employers must keep a separate, confidential list of the case numbers and employee names for all privacy concern cases, in the event that OSHA requests disclosure.