HR Webianr: OSHA Reporting and Employee Record-Keeping

OSHA: Untangling the Confusion
February 20, 2019
Bob Greene

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Today’s Speaker
Bob Greene currently serves as Channels Manager and Sales Trainer at Ascentis.
Bob’s 39 years in the human capital management industry have been spent
in practitioner, consultant and vendor/partner roles. As practitioner, he managed
payroll for a 5,000 person bank in New Jersey. As consultant, he spent 8 years
advising customers in HRMS, and payroll and benefits system design as well as
acquisition strategies. Bob also built a strategic HCM advisory practice for Xcelicor
(now Deloitte Consulting.)
As vendor/partner, he has had prominent roles in sales support, marketing and
product management at several companies and currently Ascentis. Bob has been
a Contributing Editor for IHRIM's Workforce Solutions Review journal, for the past
eight years. His experience also includes two years as Adjunct Lecturer in HRIS at
Benedictine University in Lisle, Illinois. In addition to his 39 years of experience,
Bob also holds a BA in English from Rutgers University.
Bob Greene

Agenda
• The Short, Sad History of the “Improve Tracking of Workplace Injuries and Illnesses Rule of 2016”
• OSHA Reporting: The Basics of 29 CFR Part 1904
• OSHA: Who Must Report
• OSHA: What Must Be Reported
• The OSHA “Decision Tree:” Four Questions
• OSHA Reporting: Required Forms
• Employee vs. Contractor, the Dynamex Decision, and the ABC Rule
• Steps an Employer Should Take NOW!

Disclaimer
• Legal advice
• A political opinion
This presentation is not:
Before Taking Any Actions
Before taking any actions on the information contained in this
or any other Ascentis webinar, employers should review this
material with their professional advisors.

Part I
The Short, Sad History of the
“Improve Tracking of Workplace Injuries and Illnesses Rule” of 2016

Washington’s Changing Priorities
On May 12, 2016, nearing the end of the Obama Administration, the
OSHA division of the DOL issued the new Electronic Reporting Rule
requiring the electronic submission of workplace injury and illness
records:
• In a section entitled “Benefits of Electronic Data Collection,” OSHA explained that “[w]ith the
information obtained through this final rule, employers, employees, employee representatives
[e.g., unions], the government, and researchers may be better able to identify and mitigate
workplace hazards and thereby prevent worker injuries and illnesses.”
• The new rule applied to employers differently, depending on their size and industry. Bearing in
mind that OSHA rules apply based on measurement of an “establishment”, not an employer
overall, an establishment is defined as a single physical location where business is conducted.
• Specifically, the new electronic reporting rule applied to ALL establishments having 250 or more
employees, but for establishments having from 20 to 249 employees, the electronic reporting
rule applied only if they were in selected “high-risk industries” as published by the
Department of Labor.
• The rule did NOT apply to any establishment having fewer than 20 employees.

Phase-In of the new rule:
• For 2016, injury and illness records, the Electronic Reporting Rule required covered
establishments to electronically submit their 2016 summary Form 300As (only) to OSHA by
July 1, 2017.
• For 2017 injury and illness records, the Electronic Reporting Rule required covered
establishments to submit electronically to OSHA information from OSHA Forms 300, 301, and
300A by July 1, 2018.
• And beginning in 2019 and for every year thereafter, covered establishments were required to
submit the information on all three OSHA forms by March 2 of the following year.
• It is worth noting that OSHA explained in its original rule that it would make publicly available all
of the fields collected in OSHA Forms 300 and 300A, as well as all fields on OSHA Form 301 that
did not include personally identifying information (PII), and that it would exempt personally
identifiable information from prospective future FOIA (Freedom of Information Act) requests
by third parties.

But … not so fast …:
• On June 28, 2017, the current Administration issued a Notice of Proposed Rulemaking (NPRM)
that delayed the July 1, 2017 submission deadline to December 1, 2017.
• On November 24, 2017, a final rule was issued delaying the 2016 data submission deadline to
December 15, 2017.
• In May, 2018, OSHA suspended the 2017 data submission deadline on its website, without
solicitation of public comments or Federal Register publication. The DOL simply announced that
there would be no submissions of 2017 data electronically, as the agency formulated a planned
NPRM rescinding the filing requirement entirely.
• On July 30, 2018 and January 25, 2019, the DOL issued that NPRM and final rule (“The Rollback
Rule”), respectively, rescinding the electronic filing requirement.
• The reason for the Rollback, as explained on the OSHA website: “These actions together will
allow OSHA to improve enforcement targeting and compliance assistance, decrease burden on
employers, and protect worker privacy and safety.”
• Also on January 25, the nonprofit group Public Citizen, joined by the American Public
Health Association, and the Council of State and Territorial Epidemiologists, filed suit
against Labor Secretary Alexander Acosta to enjoin the Administration’s Final Rule
which struck down the required reporting.

Part II
OSHA Reporting:
A Primer in 29 CFR Part 1904

The purpose of OSHA reporting is to require employers to record and
report work-related fatalities, injuries and illnesses. Recording or reporting
a work-related injury, illness, or fatality does NOT necessarily mean:
• the employer or the employee was at fault,
• any OSHA rule has been violated, or
• the employee is eligible for workers’ compensation or other (e.g., disability) benefits.
• OSHA injury and illness recordkeeping and Workers’ Compensation claims are independent of each
other. A given illness or injury may be OSHA-reportable AND qualify for workers’ compensation,
qualify for either but not the other, or not qualify for either mandated OSHA reporting nor workers’
compensation.
OSHA: Purpose of the Law

OSHA grants partial reporting exemptions to employers on two bases:
company size (headcount), and industry.
• The Size Exemption
• The size exemption applies if a company had 10 or fewer employees at all times during the previous
calendar year, unless a specific survey mandate has been issued to an employer by OSHA or the
Bureau of Labor Statistics (BLS).
• This size exemption is based on the number of employees in the entire company, and counting must
include temporary employees who were supervised on a day to day basis.
• The Industry (Partial) Exemption
• OSHA’s industry exemption is a bit more complex, and is based on a list published by the OSHA
Administration.
• ALL industries in agriculture, construction, manufacturing, utilities and wholesale trades are
explicitly NON-exempt, meaning they are covered by the rules.
• SOME industries in the transportation, retail, and service sectors, are partially exempt.
• The list that OSHA maintains of partially exempt industries is called “Appendix A to Subpart B”
of the CFR, and it is continually revised based on comparing an industry’s “DART” rate
(“Days Away, Restricted Work Activity and Job Transfer” rate) with the national average
of all industries.
OSHA: Who Must Report?

Source: OSHA website. Can be accessed here:
https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

Why are the size and industry exemptions only “partial?”
• Bear in mind that certain workplace adverse events are always and individually reportable to
OSHA regardless of employer size or industry:
• Fatalities
• Amputations
• Loss of an eye
• Any in-patient hospitalization.

Covered employers must record and report each and every fatality,
illness or injury that:
• is work-related, AND
• is a new case, AND
• meets one or more of the following criteria:
• results in death, OR
• results in days away from work, OR
• results in restricted work activity, OR
• results in transfer to another job, OR
• results in medical treatment beyond first aid, OR
• results in loss of consciousness, OR
• results in treatment by a physician or other licensed healthcare professional, OR
• a needlestick or cut from a sharp object, that are contaminated with another person’s blood
or other potentially infectious material, OR
• results in the employee’s medical removal, OR
• results in certain levels of hearing loss in one or both ears, OR
• results in exposure to active tuberculosis.
OSHA: What Must Be Reported?

OSHA: The OSHA “Decision Tree”
Did the employee experience an injury or illness?
Is the injury or illness work-related?
Is the injury or illness a new case?
Does the injury or illness meet the general criteria
or the application to specific cases?
YES
YES
YES

29 CFR Part 1904.46 states, in pertinent part, that an illness or an
injury is an “abnormal condition or disorder.”
• Injuries include cases such as, but not limited to:
• A cut
• A fracture
• A sprain
• An amputation.
• Illnesses include cases such as, but not limited to:
• A skin disease
• A respiratory disorder
• A poisoning.
Did the employee experience an injury or illness?

Example 1A: A worker reports to the company nurse complaining of painful wrists.
The employee is given two Advil and told to return to the job.
• Question: Did the employee experience an injury or illness?
• Answer: Presumptively, YES. Painful wrists were the injury experienced.
(Move on to the next question in the decision tree.)
Example 1B: There is a chlorine gas leak at ABC establishment, and two employees
in the area are rushed to the hospital. They are told to stay home the next day as a
precaution.
• Question: Did these employees experience an illness or injury?
• Answer: Unclear. We need more information. We need to determine if
either employee exhibited signs or symptoms of an injury/illness.
If yes, go on to the next question in the decision tree.
If no, we have a (non-reportable) event or exposure only.

29 CFR Part 1904.5 states, in pertinent part, that a case is presumed work-
related if, and only if, an event or exposure in the work environment is a
discernable cause of the injury or illness, or of a significant aggravation to a
pre-existing condition.
• The “work environment” is defined as the establishment, as well as other locations
where one or more employees are working or present as a condition of
employment.
• The work environment includes not only physical locations, but also the equipment
or materials used by employees during the course of their work.
• A pre-existing injury or illness is “significantly aggravated” when an event or
exposure in the work environment results in any of the following (which otherwise
would not have occurred):
• Death
• Loss of consciousness
• Days away, days restricted or job transfer
• Medical treatment
Is the injury or illness work-related?

Exceptions to the determination that an illness or injury was work-related
include:
• Situations in which the employee is present as a member of the general public.
(Example: a grocery store worker who is not working but rather shopping at her
place of work when she is injured),
• Symptoms arising in a work environment that are solely due to a non-work-related
event or exposure. Regardless of where signs or symptoms surface, a case is work-
related only if a work event or exposure is a discernable cause of the injury or illness
or of a significant aggravation to a pre-existing condition.
(Example: a diagnosed diabetic who has a diabetic episode requiring administration
of prescription medication while at work but due to his or her own failure to
maintain vigilance about their blood sugar levels.)
• Voluntary employee participation in wellness programs, medical, fitness or
recreational activities.
(Example: employee passes out while giving blood at a blood drive at work or injures
herself in a game of ping pong even if the employer makes the equipment for such
leisure activities available.)
• Eating, drinking or preparing food for personal consumption while at work.
(Example: employee burns his lip on a cup of hot coffee, or chokes on a
sandwich in the lunchroom.)

Exceptions to the determination that an illness or injury was work-related
include:
• Personal tasks outside assigned working hours.
(Example: employee stays after assigned shift to use employer’s sewing machine to
sew on Boy Scout merit badges and injures himself.)
• Personal grooming, self-medication for a non-work-related condition, or the injury
is self-inflicted.
(Examples: employee has a negative reaction to asthma medication, gets mascara
in the eye, or commits suicide, none of these are work-related.)
• Motor vehicle accident on commute to/from work, or in the employer’s parking lot.
(However, if the employee slips on the ice on the way in from the parking lot, or the
motor vehicle accident occurs while driving on business, those incidents ARE work-
related.)
• Common cold or the flu.
(Express carve-out for most common communicable illnesses.)
• Mental illness (unless the employee voluntarily provides a medical
opinion from a physician or licensed health care professional having
appropriate qualifications and experience that affirms work-relatedness
of the mental illness.)

How does an employee’s business travel status impact whether an
injury or illness is work-related?
• When employees are traveling, an injury or illness occurring while the employee is
engaged in work activities for the employer is considered work-related.
• Travel to and from customer contacts and entertaining or being entertained at the
direction of the employer are work-related.
(Example: if an employee falls in the airport while on a business trip, the case is work-
related.)
• However, once an employee checks into a hotel or motel, she establishes a “home
away from home.” While she is in that “home away from home” status, cases that
occur are not work-related.
(Example: if an employee slips in the hotel shower and is injured, the case is not work-
related.)
• Similarly, if the employee takes a side trip while in business transit
(e.g., for a vacation, to go sightseeing or shopping, etc.), and is injured,
the case is not work-related.

How does an employee’s tele-commute, home-office based or
virtual office impact whether an injury or illness is work-related?
• Injuries and illnesses that occur while an employee is working at home are
work-related if they:
• …occur while the employee is performing work for pay or compensation in the
home, AND
• …are directly related to the performance of work rather than the general home
environment.

Example 2A: An employee gives blood at a voluntary employer-sponsored blood
drive and passes out (loss of consciousness).
• Question: Was the incident work-related?
• Answer: NO. A rules-based exception applies: The injury or illness results solely
from voluntary participation in a wellness program or in a medical, fitness, or
recreational activity such as blood donation, physical examination, flu shot,
exercise class, racquetball, or baseball.
Example 2B: Employee sprains his ankle in the employer’s parking lot on the way
into work.
• Question: Was the incident work-related?
• Answer: YES. No rules-based exception applies: The parking lot exception
applies only to motor vehicle accidents occurring during an employee’s
commute to or from work.

29 CFR Part 1904.6 tells us, in pertinent part, to consider an
injury or illness a “new case,” if:
(a.) the employee has not previously experienced a recorded injury or illness of
the same type that affects the same part of the body, OR
(b.) if the employee previously experienced a recorded injury or illness of the
same type that affected the same part of body but had recovered completely
(i.e., all signs and symptoms had disappeared) from the previous injury or
illness and an event or exposure in the work environment caused the signs or
symptoms to reappear.
Is the injury or illness a new case?

With regard to recurrences, employers are to consider an injury
or illness a “new case,”:
• if an exposure triggers the recurrence, it should be considered a new case.
(Common examples: asthma or occupational dermatitis.)
• If signs or symptoms recur in the absence of exposure, it is presumptively
NOT a new case.
(Common examples: silicosis, asbestosis or tuberculosis.)

Example 3A: Five weeks ago, the employee sprained her wrist at work and received
support, prescription medication, and “light duty.” Two weeks ago this employee was back
on normal job and completely recovered. Today (5 weeks after the injury) the same
employee complains of pain in same wrist after moving boxes.
• Question: Is this a new case?
• Answer: YES. The employee had completely recovered from the previous injury
and a new event or exposure occurred in the work environment.
Example 3B: Five weeks ago, the employee sprained her wrist at work and received
support, prescription medication, and “light duty.” Two weeks ago this employee was back
on normal job but continued to take prescription medication. Today (5 weeks after the
injury) the same employee complains of pain in same wrist after moving boxes.
• Question: Is this a new case?
• Answer: NO. The employee had NOT completely recovered from the previous
injury or illness. Update the previously recorded OSHA entry, but do not create
a new case.

29 CFR Part 1904.7 states, in pertinent part, that an injury or
illness is recordable if it results in one or more of the following:
• Death
• Days away from work
• Restricted work activity
• Transfer to another job
• Medical treatment beyond first aid
• Loss of consciousness, and/or
• Significant injury or illness as diagnosed by a physician or
other licensed health care professional.
Does the injury or illness meet the general criteria
or the application to specific cases?

Part 1904.7(b)(3) specifies the rules covering days-away cases.
Any case involving one or more days away is recordable. The
following rules apply:
(a.) Do not count the day of the illness or injury as a day away.
(b.) Count all days the employee was unable to work, including weekends,
holidays and vacation days.
(c.) Cap the day count at 180.
(d.) The day count can be stopped if the employee leaves the company for a
reason unrelated to the illness or injury (e.g., a plant shutdown).
(e.) If a medical opinion exists, the employer must follow that opinion.

Part 1904.7(b)(4) specifies the rules covering restricted work
cases. Any case involving restricted work or job transfer is
recordable. The following rules apply:
(a.) Do not count the day of the illness or injury as a restricted work day.
(b.) Restricted work activity exists if the employee is:
• Unable to work the full workday he or she would otherwise have been scheduled to
work; or
• Unable to perform one or more routine job functions.
(c.) An employee’s routine job functions are those activities the employee
regularly performs at least once per week.
 However, note the following precautionary work restrictions “carve-out” (CPL 2-0.131):
(a.) The employee experiences minor musculoskeletal discomfort, (b.) a health care professional
determines that the employee is fully able to perform all of his or her routine job functions, AND
(c.) the employer assigns a work restriction to that employee for the purpose of preventing a more
serious condition from developing.

Part 1904.7(b)(5) specifies the rules covering cases requiring
medical treatment beyond the level of first aid. The following
rules apply:
• Medical treatment is defined as the management and care of a patient to
combat disease or disorder.
• It specifically excludes:
• visits to a physician or other licensed healthcare provider solely for observation or
counseling
• diagnostic procedures, or
• first aid.

The definition of first aid in Part 1904.7(b)(5) is all-inclusive,
meaning that if a treatment is not specifically listed, it is not
first aid but rather medical treatment. First aid is restricted to
include only the following:
• Using nonprescription medication, but only at nonprescription strength,
• Tetanus immunizations,
• Cleaning, flushing, or soaking surface wounds,
• Wound coverings, butterfly bandages, Steri-Strips,
• Hot or cold therapy,
• Non-rigid means of support,
• Temporary immobilization device used to transport accident victims,
• Drilling of fingernail or toenail, draining fluid from blister,
• Eye patches,
• Removing foreign bodies from eye using irrigation or cotton swab,
• Removing splinters or foreign material from areas other than the eye by irrigation, tweezers,
cotton swabs or other simple means,
• Finger guards,
• Massages,
• Drinking fluids for relief of heat stress.

Part 1904.7(b)(6) specifies the very simple rule covering cases
involving an employee’s loss of consciousness:
• ALL work-related cases involving loss of consciousness must be recorded as
an OSHA case.

Part 1904.7(b)(7) specifies the rules covering a series of cases
involving an employee’s significant diagnosed illness or injury:
• These are illnesses or injuries, which, due to the nature of the illness, may not
require immediate treatment but are nonetheless serious enough to require
reporting.
• These include:
• Cancer
• Chronic irreversible disease
• Punctured eardrum, and
• Fractured or broken bone or tooth.

Part 1904.7(b)(8) addresses specific OSHA-reporting rules for
bloodborne pathogens, and organizations employing
healthcare professionals must pay special attention to these
rules. The specific rules issued by OSHA are to:
• record all work-related needlesticks and cuts from sharp objects that are
contaminated with another person’s blood or other potentially infectious
material (includes human bodily fluids, tissues and organs; other materials
infected with HIV or HBV such as laboratory cultures),
• record splashes or other exposures to blood or other potentially infectious
material if it results in diagnosis of a bloodborne disease or otherwise meets
the general recording criteria.

Part 1904.7(b)(9) covers rules surrounding medical removal.
• There are several OSHA standards requiring medical removal, including those
articulated under the lead, cadmium and benzene standards, among others.
• If an employee is medically removed under any of these medical surveillance
requirements, the employer must record the case.
• The case is recorded as either one involving days away from work or days of
restricted work activity, as the case may be.
• If the case involves voluntary or precautionary removal below the removal
levels required by the standard, the case need not be recorded.

Part 1904.7(b)(10) covers rules surrounding employee hearing
loss.
• Generally, an employer must record work-related hearing loss cases when an
employee’s hearing test shows a marked decrease in overall hearing.
• The actual standard is quite detailed, involving measurements such as
“Standard Threshold Shift” testing, and further detail can be found at 29 CFR
Part 1904.7(b)(10) and 29 CFR 1910.95g(9) et. seq.

Part 1904.7(b)(11) covers rules regarding tuberculosis infections
among employees, and the circumstances under which they
will be found to be work-related.
• Employers must record a case where an employee is exposed at work to
someone with a known case of active tuberculosis, and subsequently
develops a tuberculosis infection. However, a case is not recordable when:
• the worker is living in a household with a person who is diagnosed with active
tuberculosis,
• the Public Health Department has identified the worker as a contact of an individual
with active tuberculosis,
• a medical investigation shows the employee’s infection was caused by exposure away
from work.

OSHA requires that three forms be maintained by each covered
employer:
• OSHA Form 300, Log of Work-Related Injuries and Illnesses
• OSHA Form 300A, Summary of Work-Related Injuries and Illnesses
• OSHA Form 301, Injury and Illness Incident Report
• With the January 25, 2019 rollback of the “Improve Tracking of Workplace
Injuries and Illnesses Rule” of 2016, only the Form 300A is to be submitted by
applicable employers. The other two forms are to be completed and retained
by applicable employers in case they are requested by competent authority
(OSHA, BLS, etc.)
OSHA: What Forms Must Be Completed?

OSHA Form 300: Log of Work-Related Injuries and Illnesses

OSHA Form 300: Log of Work-Related Injuries and Illnesses
OSHA-specific instructional overview:
• On the 300 Log, the employer checks one and only one
of the outcome columns for each case, the one
representing the most serious outcome of the case.
• If the status of the case changes, then the entry must be changed. For example, if the
injured employee is experiencing days away from work, then dies, the employer must
remove (or line out) the days away entry and the day count and check the box for a
fatality.

OSHA Form 301: Injury and Illness Incident Report

OSHA Form 301: Injury and Illness Incident Report
• The 301 form captures data on each injury and illness
(the length of service, what time the injury occurred,
what time the employee started work, etc.).
• The questions about how the person was injured or became ill are identical to the
Bureau of Labor Statistics survey questions, which makes it easier for employers to
complete the survey forms when they receive them.
• Many employers use a Worker’s Compensation Report, a First Report of Injury or a
Company Accident Report as an equivalent form, and they can continue to do this.
• They just need to ensure that their form includes all of the same data that is
found on the 301 form or can be supplemented so that that data is
attached to it.

OSHA Form 300A: Summary of Work-Related Injuries and Illnesses

OSHA Form 300A: Summary of Work-Related Injuries and Illnesses
• There is a separate form for the summary, the 300A.
• This makes it easier to protect the privacy of injured or ill workers.
• The form asks for additional data on the average number of employees and hours worked
to make it easier to calculate rates.
• Incidence rates are the best way to compare an establishment or an
individual company’s data to the national statistics and to their prior
performance.

Special Requirements for the OSHA 300A Annual Summary
• The annual summary requirements lay out a process for completing end-of-year
processing.
• The employer must first review the records and correct them if necessary, then complete the form,
certify the form, and post it for 3 months.
• The form includes data on average employment and hours worked to make it easier to calculate
incidence rates. The employer may estimate these figures using the optional worksheet provided in the
forms package.
• The rule requires certification by a company executive to help improve management
involvement in the records. A company executive is narrowly defined as:
• an owner of the company,
• an officer of the corporation
• the highest ranking person at the establishment, or
• his or her boss.

Privacy Protections Built into OSHA Rules (29 CFR Part 1904.29):
• For “privacy concern cases,” employers are advised not to enter the name of an employee
on the OSHA Form 300. Enter “privacy case” in the name column instead. Keep a separate
confidential list of the case numbers and employee names.
• Privacy concern cases are defined as:
• An injury or illness to an intimate body part or to the reproductive system
• An injury or illness resulting from sexual assault
• Mental illness
• HIV infection, hepatitis, tuberculosis
• Needlestick and sharps injuries that are contaminated with another
person’s blood or other potentially infectious material, or
• The employee voluntarily requests to keep his or her name off the
report, for any other illness cases.

General OSHA Form Provisions
Timeliness: Employers must enter each recordable case on the forms within 7 calendar days
of receiving information that the recordable case occurred.
Multiple Business Establishments (1904.30): Employers must keep a separate OSHA Form
300 for each establishment that is expected to be in operation for more than one year. They
may keep one OSHA Form 300 for all shorter-term establishments. Each employee must be
linked with one, and only one, establishment (primary place of work.)
Records Retention (1904.33): OSHA records must be retained for five years. During the
retention period, the employer must update the 300 form to include any cases that are
newly discovered or whose status has changed, but is not required to change the summary
or the 301 form.

Employee Training and Employee Information Requests:
Employers must establish a method for employees to report
injuries and illnesses. Employers also must train each employee
on how to report. This is a very basic step to ensure employees
report cases so they can get into the records.
• Furthermore, employers are also required to provide the records to employees.
• The OSHA 300 Log must be made available to employees, former employees, or
employee representatives by the end of the business day following the day such a
request is made.
• An employee, former employee or personal representative is specifically permitted to
receive a copy of his or her own 301 form.
• An authorized representative can get 301 information for all the injuries
and illnesses at the establishment, but only the information about the
injury or illness (i.e., the information provided on the right side of
the 301 form).

Prohibition Against Discrimination:
§11(c) of the Occupational Safety and Health Act prohibits an
employer from discriminating against an employee for reporting
a work-related fatality, injury or illness. §11(c) also protects the
employee who:
• files a safety and health complaint,
• asks for access to Part 1904 records, or
• otherwise exercises any rights afforded by the Act.

Fatality/Catastrophe Reporting (1904.39):
All employers (whether mandated OSHA-reporters or not) are
required to report certain catastrophic health events on a timely
basis:
• ALL employers must report any work-related fatalities to OSHA within 8 hours.
• Work-related amputations, loss of an eye , or the in-patient hospitalization of one or
more employees must be reported to OSHA within 24 hours of the employer learning
of the incident.
• The case can be called in to the local area office or phoned in to 1-800-321-OSHA.
• The case can also be reported to OSHA using the web application available from
OSHA’s public website.
• Cases may, in certain circumstances, be recordable but not reportable.
(Example: a fatality due to a motor vehicle accident on a public highway
does not have to be reported within 8 hours, but it is a recordable
fatality on the 300 Log.)

Fatality/Catastrophe Reporting (1904.39):
Penalties for failure to report timely:
• Violation of §1904.39 carries some of the stiffest monetary penalties found in OSHA
law.
• In 2014, the penalty for “other-than-serious” citations rose from $1,000 per incident to
$5,000 per incident.
• Additionally, the OSHA Area Director is given the discretion to raise that penalty to
$7,000, if they feel it necessary to “achieve the necessary deterrent effect.”

Covered Employees (1904.31):
• Employees on the payroll must be included in the employer’s records, unless the
company is acting as a temporary help service.
• Employees not covered in the OSH Act are also excluded from the OSHA records.
These include unpaid volunteers, sole proprietors, family members on family farms,
and domestic workers in residential settings.
• Temporary workers are considered the employees of the party exercising day-to-day
control over them, and the supervising party records their injuries and illnesses.
• The employer and the temporary help service can discuss each case to determine
which organization is recording it.
• OSHA makes it clear that they want to avoid a case being recorded twice if it can be
avoided.
• The above rules, combined with the failure-to-report penalties, make
accurate and defensible employee/independent contractor decisions
essential to controlling unnecessary fines and possible litigation.

Part IV
Employee vs. Contractor,
the Dynamex Decision,
and the ABC Rule

The self-employed are not covered by OSHA.
• For this reason, when an otherwise-covered event strikes a worker that an
employer has designated an independent contractor, that designation can
come under increased scrutiny.
• This has implications for multiple areas of health-related law:
• worker’s compensation,
• state and self-funded disability plans, and
• OSHA.
OSHA: Employee vs. Independent Contractor

• On April 30, 2018, a California Supreme Court decision (Dynamex Operations
West, Inc. v. Superior Court of Los Angeles) significantly complicated the area
of employment law applicable to independent contractor status.
• With this decision, California embraced a standard under which all workers are
presumed to be employees rather than contractors. In doing so, California
joins Massachusetts and New Jersey in adopting the “ABC Test”. Under this
test, a worker can be classified an independent contractor only if ALL three of
the “ABCs” are satisfied:
A) The worker must be free from the control and direction of the payor in connection with the
performance of the work, both under the contract and in fact. -AND-
B) The worker must perform work that is outside the usual course of the payor’s business. -AND-
C) The worker must be customarily engaged in an independently established trade, occupation
or business of the same nature as the work performed by the worker for the payor.

• According to the Economic Policy Institute (EPI), up to 20% of employers
misclassify at least one employee due to ambiguous controlling laws, and
this is seen as encouraging the adoption of the ABC test by more and more
states.
• With the “other-than-serious” citation for failure to make a required OSHA
incident report within 24 hours standing at $5,000-$7,000, and an
employer’s erroneous classification of an employee as a contractor
presumably not being a valid defense, worker misclassification can be very
expensive.

“The Upshot”
OSHA: Steps Every Employer Should Take Now

1. Review 2019 OSHA Forms 300A, due March 2, 2019.
• Despite the January 25, 2019 rollback of the electronic submission
requirement for OSHA Forms 300 and 301, the Summary Report, Form 300A,
is still due.
• The weeks leading up to March 2 offer an excellent opportunity for employers
to review the accuracy of recordkeeping, including final dispositions of each
case, which of course can impact the accuracy of summary reporting, and
that appropriate privacy redactions have been made where warranted on the
individual Forms 300.
Four Key Steps Every Employer Should be Taking to Ensure OSHA Compliance
Steps Every Employer Should Take NOW!

2. Re-examine all employee- and manager-facing communications around OSHA.
• Successful OSHA compliance has many dependencies on two-way
employee/company and manager/company communication, including:
• Employees understanding when they must report a work-related illness or injury,
• Managers having an even more detailed understanding of the circumstances under which
an employee’s illness or injury becomes OSHA-reportable. Managers in departments that
face a higher incidence of expected accidents (manufacturing, logistics, patient-facing
healthcare practitioners, vs. accountants or inside sales teams, for example) should perhaps
be offered additional the most in-depth training.
(A Learning Management system, accessible on-demand from any internet connection, is
an excellent way to stage required content for consumption by employees and managers,
and to ensure that they complete the training, and demonstrate a minimum
understanding of the content!)
• Safety or Risk Management departments also have an obligation to respond to requests for
incident reports and OSHA forms, when those are made by qualified parties (employees, ex-
employees, or employee representatives). These requests are frequently accompanied by
strict response deadlines.

3. Ensure you have the data you need to support any potential survey, inquiry or
audit.
• Your HCM suite is the source for all the data needed to support and defend OSHA compliance
services.
• This includes the confidential case notes regarding the incident, and resulting reportable illness
or injury.
• It includes details that support the contents of the individual Forms 300.
• And it also includes trend analysis and reporting to not just passively document unfortunate
incidents that have happened, but to proactively identify and address the circumstances that
permitted these accidents or exposures to occur in the first place.

4. Revisit your “employee/independent contractor” decision making process in light
of the Dynamex decision and the potential changes in state employment law that
it portends!
• With OSHA’s “other-than-serious” penalties for failure to report incidents timely now at an all-
time high of $5,000-$7,000 per incident, an unanticipated “side effect” of miscategorizing
employees as independent contractors can be some expensive fines.
• With states on both the west coast (California) and the east coast (Massachusetts, New Jersey)
now aligning in adoption of the most restrictive “ABC Test” for qualifying a worker as a
contractor, most multi-state employers subject to OSHA compliance should be reviewing and re-
evaluating their independent contractor status determination, and electronically documenting
the results of that evaluation for each worker being classified as an independent contractor.

How Ascentis Can Help
The Ascentis HCM Suite Has Many Capabilities to Address These Challenges
• Human Resource Information System (Basic HR Recordkeeping)
• Employee and Manager Self-Service for Accessing Forms of all Kinds, including Initial Illness/Injury Reports
• Standard OSHA Reporting as part of the HRIS
• Unlimited user tabs and fields to capture additional details around incidents that might be unique to a given
organization due to their industry (e.g., exposures for chemical companies; bloodborne pathogen incidents
for healthcare institutions)
• Learning Management System
• Offer employees and managers standard learning content to ensure they understand their responsibilities for
reporting OSHA-reportable illnesses and injuries
• Schedule training and ensure it is completed, with reminders, dashboards, and detailed reporting
• SCORM compliance allows for embedded quizzes, recordkeeping on performance and comprehension for
employees consuming the training
• Workflow Approvals and Flexible Ad Hoc Reporting
• Feel the need for HR to be informed of EVERY OSHA-reportable event? You’re not alone! Detailed
workflow rules ensure that nothing entered in the HRIS by an employee or manager escapes HR’s attention.
• Flexible reporting allows HR management to go beyond pure statutory reporting and mine decisionable
information to better understand how, why and when accidents are occurring.

Learn more
Request an assessment of your organization’s OSHA compliance profile today!

Contact Us
webinars@ascentis.com
info@ascentis.com
www.ascentis.com
800.229.2713

HR Webianr: OSHA Reporting and Employee Record-Keeping

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