Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The Occupational Safety and Health Administration has developed on online tool to help employers assess their obligations under the agency’s injury and illness recordkeeping regulations. The OSHA Recordkeeping Advisor is presented in question and answer format and directs users to the next appropriate inquiry and/or course of action based on their responses. The stated purpose of the online tool is to help employers 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

The agency emphasizes that the tool is designed to help employers better understand their recordkeeping requirements, but should not be used as a substitute for OSHA’s more detailed regulations, handbooks, or letters of interpretation.

Photo credit: doram

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The Equal Employment Opportunity Commission (EEOC) has issued a proposal to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The agency’s proposed rule, published in the June 2 edition of the Federal Register, seeks to amend its current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal does not request the creation of additional documents nor does it impose any reporting requirements under GINA, “but merely require[s] employers to maintain the records that they do create,” although the agency reserves the right in the future to issue reporting regulations “as may be necessary to accomplish the purposes of GINA.”

Comments on this proposal are due on or before August 1, 2011, and may be submitted through the federal eRulemaking portal, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114.

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The Occupational Safety and Health Administration (OSHA) announced that it has started its one-year national emphasis program (NEP) (pdf) on recordkeeping to assess the accuracy of injury and illness data recorded by employers. Under this program, OSHA inspectors will conduct audits of at most 50 employers with at least 40 employees. No more than five worksites will be targeted per OSHA region. Those selected will be employers in one of 21 named industries that have reported the highest rates of missed work, restricted work activity, or job transfers. Such industries include animal (except poultry) slaughtering, scheduled passenger air transportation, foundries, concrete pipe manufacturing, soft drink manufacturing, and couriers.

The audit will include a safety and health walkaround inspection of the workplace on the first day of the review. The compliance officers will examine the employees' records in order to identify occupational injuries and illnesses that may have occurred to those employees from 2007 to 2008. OSHA will then compare its findings to the records the employer provided to the agency to find any discrepancies. As part of the NEP, OSHA will review medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. The agency will also review records that are stored offsite. Additionally, the OSHA compliance officers will conduct interviews with employees, management, the record keepers, and medical staff. If recordkeeping violations are identified, the inspectors will propose citations and penalties.

Those employers that currently participate in OSHA’s Voluntary Protections Programs or Safety and Health Achievement Recognition Program (SHARP) will be exempt from the NEP.
 

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