The OSHA Recordkeeping Advisor
By: Edward Stern, Contributor
OSHA has a powerful, free tool to help employers (and employees) understand the Recordkeeping Rules. It is the OSHA Recordkeeping Advisor, available at https://webapps.dol.gov/elaws/osharecordkeeping.htm.
Why is it needed? A good clue is the text of the first page of the Advisor. It says, “… The OSHA Recordkeeping Advisor is intended to help determine:
- Whether an injury or illness (or related event) is work-related
- Whether an event or exposure at home or on travel is work-related
- Whether an exception applies to the injury or illness
- Whether a work-related injury or illness needs to be recorded
- Which provisions of the regulations apply when recording a work-related case”
To my mind, the OSHA Recordkeeping Rules are well-written, and they are understandable to people who take the time to read them carefully. So far, so good. However, the rules cover a wide range of issues and circumstances—as indicated by the list above of things to be determined.
OSHA provided help on these rules, because there are so many things that might affect the answers to some of the following questions: Is it work-related? Does an exception apply? Does it need to be recorded? And, if so, which provisions apply? Those are key issues, but there are many other situations that need to be analyzed which are not on the list above. This article will touch on a few of these other issues.
Injuries and illnesses at work can occur in all manner of circumstances. That is what makes the determinations complicated. Unless you know the rules down pat, it is possible to overlook some provision when you deal with anything out of the ordinary.
Why is the Advisor an Expert?
It is an “expert” advisor interview, because OSHA’s experts on the rules and the attorneys in the Occupational Safety and Health (OSH) Division of the Office of the Solicitor of Labor went over the questions, answers, notes and
decision logic behind the Advisor with a fine-tooth comb. Then they signed off. So, you get the official guidance from OSHA and the Solicitor’s Office. (These were excellent people; I enjoyed working with them on this Advisor.)
Suppose you have a contract or temp employee who gets sick or injured. Before you even consider whether the event is OSHA recordable, you would have to figure out whether your company or the person’s employer is responsible for recordkeeping. The Advisor analyzes that. How?
The OSHA Recordkeeping Advisor determines its guidance to users by asking necessary questions and by following up with further questions prompted by your answers. Its online, interactive expert interview finds the guidance appropriate to your responses. As it goes along, it recaps what you told the system and what your answers mean in terms of the rules. If you see that what you told the system is not correct, then you can back up to give a different response.
Some Issues to be Analyzed
One early question is: “Did an event or exposure occurring in the work environment cause or contribute to the resulting injury or illness, or significantly aggravate a pre-existing injury or illness?” This is not a simple question. You may wonder about it. If you answer that you do not know whether an event “significantly aggravated” a pre-existing injury or illness, the system will ask further questions, beginning with:
“Did an event or exposure in the workplace result in the affected employee:
- Missing one or more days away from work?
- Having one or more days of restricted work?
- Having one or more days of job transfer?
- Getting medical treatment beyond first aid?
- Losing consciousness?
- Having Standard Threshold Shift in hearing?
- None of the above.
The Advisor may ask follow-up questions based on your answers to this question. It will determine the issue of “significantly aggravated” and proceed to the next issue.
What About Working at Home?
When we developed the Recordkeeping Advisor, relatively few people were working at home compared to 2020 and 2021. Still, it was an issue to be considered. If you said the person was working from home, you would get this message:
“You indicated that the event or exposure that caused the injury or illness occurred while the affected employee was working from home. Was the injury or illness a direct result of the performance of work, or was the injury or illness directly related to an aspect of the home environment or setting?” Choices include:
- The injury or illness was a result of the performance of work.
- The injury or illness was related to the home environment.
For example, if an employee is working at home and drops a box of work documents and injures his/her foot, the injury would be considered work-related. If an employee is working at home and is electrocuted because of faulty home wiring, the injury would NOT appear to be work-related.
One of the attorneys added notes under that question. These came right from the rules. There are helpful, illustrative notes on some other questions.
What if the Worker was Traveling?
If one of your employees got injured or sick while on travel for work, the system would need more information to understand what happened. Let us say the employee had already signed into a hotel. The Advisor recaps what you told it and says:
“You indicated that the affected employee had checked into a hotel or other temporary residence.
During which activity did the event or exposure occur?
- Work-related activity (business meals, setting up for a conference, etc.)
- Personal activity (eating, dressing, walking, etc.)
- Commuting to the work location”
The circumstances make a difference as to whether an injury or illness is work-related. Once the Advisor understands the circumstances, it will cite the relevant section of the rules—and give you a link to it.
Please Note: Some users may never see the questions (and choices of answers) that I show here. The Advisor has questions, choices of answers and decision logic to examine everything the rules cover. But, any one incident cannot possibly involve all of the issues. A person cannot be hurt at work, at home and on travel in one incident.
To know whether an exception applies, the Advisor needs to ask about each of the exceptions. You can get through these questions by clicking on the “No” for every question. That is quick, but do not click “No” without reading the questions.
As you might expect, even the “exceptions” have follow-up questions to determine their applicability. Accidents in the company parking lot and mental illness are not simple matters. If you run into these, think carefully about the questions.
The Advisor is a powerful, analytical tool. It will be a huge help to someone new at this, and it will support your most experienced person on a tricky case. In all fairness, I should add that we looked into developing Expert Advisors, because senior attorneys in the Office of the Chief Counsel for Advocacy at SBA, especially Kevin Bromberg, pushed us to do more to help small business understand the rules. Kevin was annoying, but he was right. See similar tools at www.dol.gov/elaws.
[Editor’s Note: This article first appeared in the June 2020 issue of Workplace Material Handling & Safety.]