A recordable injury may not be what you think

With OSHA putting enforcement pressure on recordkeeping, it may be helpful to refresh your memory on just what constitutes a recordable injury.

Arthur Sapper of the McDermott Will & Emery law firm has written an excellent article that straightens out some misconceptions he says are prevalent in the construction industry about what injuries must be recorded.

Here’s what he has to say:

Work restrictions

“The single most common of mistakes that lead to recordkeeping charges is misunderstanding what an OSHA-recordable work restriction is. Employers commonly but honestly believe that if an injured employee can still perform useful work, the injury is not recordable as a work restriction.

“Thus, employers may try to avoid an OSHA recordable by assigning office work to an injured tradesman. Other employers believe that an injury case is not recordable if the employee can still perform work within his job description. So they might, for example, give purely sedentary electrical work to electricians who otherwise would climb ladders daily to perform their jobs.

“Both ideas would be mistakes. OSHA’s regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state that a restriction occurs when either:

“1) The employer keeps an occupationally injured employee from performing one or more “routine functions” of his job; or
“2) A licensed health care professional recommends that the employee not perform one or more “routine functions” of his job. The term “routine function” is specially defined as a work activity regularly performed at least once per week. In the case of the injured electrician now unable to climb a ladder, the case is recordable because the electrician otherwise regularly climbs ladders every day.

Light duty

“A second and related misconception is that light duty is not a work restriction. A recordkeeping regulation (§ 1904.7(b)(4) (vii)) indicates that light duty can indeed amount to a work restriction. In fact, this regulation indicates — although indirectly — that light duty is presumptively a restriction.

“The regulation starts with the question, “How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in ‘light duty’ or ‘take it easy for a week’?” After stating that the employer “may” ask the physician whether this means that the employee may not perform all of his routine job functions or work his entire normally assigned work shift, the lengthy provision ends with this: “If you are unable to obtain this additional information from the physician … who recommended the restriction, record the injury or illness as a case involving restricted work.”

“OSHA officials take this last sentence to mean that “light duty” is a recordable work restriction unless the physician affirmatively states that the employee may perform all of his routine job functions and may work a full shift. Employers are thus well advised that when faced with a vague restriction such as “light duty” to contact the physician and get clarification on what tasks the employee may not perform.

“If even one of these tasks is among the work duties regularly performed at least once a week, an OSHA recordable case must be entered on the log.
“Another aspect of light duty work restrictions that employers overlook is that the recordability of a restriction depends on the particular employee’s routine functions. Hence, two employees can be identically injured, treated and restricted, but the restriction might be recordable for only one of them. A restriction for an ironworker might not be a restriction for a receptionist.

“An employer therefore needs to review with the employee or the employee’s immediate supervisor what tasks the employee regularly performs at least once per week and whether the restriction prevents any from being performed.

Final caution

“A caution can be offered about these misconceptions. Even OSHA’s online Recordkeeping Handbook, of which few employers are aware, gives inadequate information about gray areas in the regulations.

“Employers with questions are understandably reluctant to call OSHA, plus area offices are often too busy for an employer to reach a knowledgeable person; moreover, different OSHA offices may offer different advice. Even so, employers should make every effort to get definitive guidance from OSHA or legal counsel rather than guessing what the recordkeeping requirements are. A wrong guess may mean big penalties from a less than sympathetic agency.”