CAL/OSHA RECORDKEEPING: Beyond Forms 300 and 300A

CAL/OSHA RECORDKEEPING: Beyond Forms 300 and 300A Audio Conference Tuesday, January 16, 2007 10:30 a.m. noon Pacific Presented by: Randy DeVaul Jeffrey Tanenbaum Kristin VanSoest 96000900-0701_handout 2007 EMPLOYER RESOURCE INSTITUTE

This publication is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. (From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers.) All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission from the publisher. This program, ORG-PROGRAM-12099, has been approved for 1.5 recertification credit hours toward PHR, SPHR, and GPHR recertification through the Human Resource Certification Institute (HRCI). Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org. This audio conference qualifies for Continuance of Certification (COC) credit for CSPs that will earn 0.12 COC points for attending this audio conference. Questions or comments about this publication? Contact: Employer Resource Institute 1819 Polk Street, #290 San Francisco, CA 94109 (800) 695-7178

Randy DeVaul is the safety and human resources audio conference producer for ERI and principal of Brickhouse of NY, Inc, a safety consulting firm in Westfield, New York. He has 25 years experience as a safety professional. He is internationally published in major safety trade publications and has authored three performance-based workplace safety books that have attracted international attention. Randy has both regulatory and industry experience in occupational and mine safety, as well as experience with workers compensation, performance management, strategic planning, organizational development, and employee benefits and retention programs. He has served on national and state association committees for training, safety/health, and both federal and state legislative groups. Randy has numerous instructor and train-the-trainer certifications from national and state organizations. He is a presenter for a national seminar group on best practices in workers compensation, and he has written and delivered management training seminars in performance safety, OSHA and MSHA compliance, workers compensation, emergency planning and management, and other topics. Randy has a Master of Arts degree from Liberty University, where he also earned the highest award for a perfect GPA. He is an active member in the American Society of Safety Engineers, serving on the International Practices Specialty, as well as member of the Southern California Industrial Safety Society. He is nationally registered as a Safety, Health, Environmental Practitioner (RSHEP). He can be reached at moderator@employeradvice.com.. Randy DeVaul Brickhouse of NY, Inc. 7573 East Route 20 Westfield, NY 14787 www.goldenplume.com www.filbertpublishing.com/safety.htm safetypro@adelphia.net 2007 EMPLOYER RESOURCE INSTITUTE (1)

Jeffrey Tanenbaum is a partner with Nixon Peabody law firm in San Francisco, California. He chairs the firm s labor and employment practice group and the firm s Occupational Safety & Health (OSHA) team. He represents employers in employment and labor relations litigation before state and federal courts and administrative agencies. Tanenbaum has extensive experience in, and has written and lectured on, OSHA, Cal-OSHA, discriminatory and negligent hiring, wrongful termination, employment discrimination, collective bargaining, and arbitrations. A Matthew Bender publication has described Tanenbaum as one of California s leading employment litigators, and he has been named by The Recorder, a prestigious legal newspaper, as one of the Bay Area s Top Employment Attorneys. Tanenbaum s numerous publications include the following: Cal-OSHA Handbook (California Chamber of Commerce) (technical advisor); Senate Bill 198 and The Be a Manager Go io Jail Act (Littler) (author); Employee Handbook: How to Write One for Your Company (California Chamber of Commerce) (co-author); The Employer Series (Littler) (contributing author); Cal-OSHA: Beyond the Basics (California Chamber of Commerce) (co-author); The Common Sense Employer (Knowledge Circle, Inc.) (editorial advisor); Terror and Violence in the Workplace (Littler) (coauthor); Personnel Policy Solutions (Knowledge Circle, Inc.) (co-editor); Family Leave Laws: A Guide for California Employers (California Chamber of Commerce) (editor); New Guidelines for Employment Contracts and Disciplinary Procedures (Littler) (co-author); The Five Biggest Mistakes Made By Employers (and How to Avoid Them!) (Littler) (co-author); California Employment Law Reporter (Matthew Bender) (columnist); The New Cal-OSHA Guidelines for the Contingent Workforce (Littler) (co-author); An Employer s Pocket Guide to Cal/OSHA (M. Lee Smith) (author); and Preventing Workplace Violence (Parlay International). Tanenbaum is a member of the State Bar of California and its employment and labor law section. Within the American Bar Association Tanenbaum is a member of the section on labor and employment law and the Occupational Safety & Health Law Committee. He may be reached at jtanenbaum@nixonpeabody.com. Jeff Tanenbaum 2 Embarcadero Center San Francisco, CA 94111-3823 Phone: (415) 984-8450 Fax (866) 268-2098 www.nixonpeabody.com 2007 EMPLOYER RESOURCE INSTITUTE (2)

Kristin VanSoest is a safety specialist with Safety Resources, Inc., in Indianapolis, Indiana. A Certified Slip and Fall Accident Prevention Specialist, her focus has been on the measurement of coefficient of friction on walking surfaces using the Brungraber Mark III slipmeter. VanSoest s article, Slips, Trips and Falls, was recently published in Sealant, Waterproofing and Restoration magazine. VanSoest is the contracted safety director for a national janitorial company. Her insight and risk liability assessments at both the management and operations levels have earned her the Outstanding and Dedicated Vendor Support Award. VanSoest holds a Bachelor of Science degree in occupational health and safety from Indiana University, Bloomington, Indiana. She is a certified OSHA outreach instructor for general industry as well as a certified First Aid/CPR/AED instructor. She has been a member of the American Society of Safety Engineers (ASSE) since 1999. She may be reached at kvansoest@safetyresources.com. Kristin VanSoest Safety Resources, Inc. 4555 Northwestern Drive Zionsville, IN 46077 Phone: (800) 641-5990 2007 EMPLOYER RESOURCE INSTITUTE (3)

I. Introduction Recordkeeping: What It s All About - Regulatory Compliance - Liability Protection - Insurance Requirements - Employee Safety/Health II. What Is Required? OSHA 300/301 Training Records Pre-Shift Inspection Records Hazard Assessments Certification Records Medical Records Exposures Records Written Plans III. What Do I keep? Required Best Practices What an Inspector Should See 2007 EMPLOYER RESOURCE INSTITUTE (4)

IV. Record Retention What Do I Do With It and For How Long? Regulatory Documents (Training, Certifications, Pre-Shifts) Medical Surveillance Documents Exposures (Audiograms, Dust, Chemicals) Documents Public Employers Internal Auditing of Records V. How Does All This Apply to Me and My Business? Benefits to the Business/Employer Benefits to the Employee Risks and Exposures MSHA vs. Cal/OSHA Change in Rules for Contractors/Businesses VI. Tips and Recommendations 2007 EMPLOYER RESOURCE INSTITUTE (5)

Questions and Answers You may e-mail your questions to audio@employeradvice.com. 2007 EMPLOYER RESOURCE INSTITUTE (6)

Thank You Thank you very much for attending our audio conference today. We hope you ve found this conference valuable. CD recordings of this conference, and past ERI conferences, can be ordered by calling 1-800-695-7178. You can also go to www.employeradvice.com for information about CD recordings of this conference and past conferences, as well as for information about our upcoming conferences. We hope you ll consider joining us again soon. Please be sure to complete and return your program evaluation. Evaluations will be e-mailed to participants shortly after the conference. 2007 EMPLOYER RESOURCE INSTITUTE (7)

CAL/OSHA RECORDKEEPING: Beyond Forms 300 and 300A Supplemental Materials 1. Recordkeeping: Don t Forget to Put It in Writing Employer Resource Institute 2. Major Differences Between the California and Federal Recordkeeping Standards From Cal/OSH link: http://www.dir.ca.gov/dosh/dosh_publications/cal_fed.html 2007 EMPLOYER RESOURCE INSTITUTE (8)

Recordkeeping: Don t Forget to Put It in Writing Recording work-related injuries and illnesses may not be your favorite safety-related task, but it s essential. Carefully kept records not only provide Cal/OSHA with the documentation it needs but also offer you a valuable source of information to plan your company s safety future. In this article we ll look at your legal requirements. Recordkeeping Basics At the heart of the recordkeeping activity is Cal/OSHA Form 300, the Log of Work-Related Injuries and Illnesses. It s used to classify occupational injuries and illnesses and to note the extent and severity of each case, and you must record specific details about each incident in the log. The summary (Form 300A) shows the totals for the year in each category. At the end of the year, you must post the summary in a visible location. A log and summary must be kept for each establishment or site. If you operate more than one establishment, a separate log and summary must be maintained for each physical location that is expected to be in operation for a year or longer. Note that your employees have the right to review your injury and illness records. It s important to understand that employees whose incidents are listed on the log are not necessarily eligible for workers compensation or other insurance benefits. Be aware, too, that listing a case on the log does not imply that you or your employees were at fault or that a Cal/OSHA standard was violated. Is the Injury or Illness Work-Related? This question is basic but not necessarily easy to answer. Here s what Cal/OSHA says: Workrelatedness is presumed for injuries and illnesses resulting from events or exposure occurring in the workplace, unless an exception specifically applies. The work environment includes the establishment and other locations where one or more employees are working or are present as a condition of their employment. Cal/OSHA requires you to record incidents that result in: death, loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment beyond first aid. Any job-related injury or illness diagnosed by a health-care professional must also be recorded as must any incident involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum. Not considered medical treatments, and therefore not recordable, are: doctor or health-care professional visits for observation or counseling diagnostic procedures procedures that can be labeled first aid. Additional Criteria Cal/OSHA also requires you to record: a needlestick injury or cut from a sharp object that is contaminated with another person s blood or other potentially infectious material an incident requiring an employee to be medically removed under a Cal/OSHA health standard 2007 EMPLOYER RESOURCE INSTITUTE (9)

a tuberculosis infection that s shown by a positive skin test or a licensed health professional s diagnosis a hearing test revealing: 1) that the worker has experienced a Standard Threshold Shift (STS) in hearing in one or both ears and 2) the total hearing level is 25 decibels or more above audiometric zero in the same ear(s) as the STS. Privacy Please You should not enter the employee s name on the Cal/OSHA log in a number of situations, including: an injury or illness to an intimate body part or to the reproductive system an injury or illness resulting from a sexual assault a mental illness a case of HIV infection, hepatitis, or TB a needlestick injury or cut from a sharp object contaminated with blood or other potentially infectious material other illnesses, if the employee requests that his or her name not be entered on the log. Instead of making a notation on the log for these, you should indicate privacy case. Keep a separate, confidential list of the case numbers and employee names involved. Important Distinctions Among other key points for recordkeepers to keep in mind is the definition of restricted work activity. Cal/OSHA says it occurs when, because of a job-related injury or illness, an employer or health care professional keeps, or recommends keeping, an employee from doing routine job functions or from working the same workday length as before the incident. You may also wonder how to count days of restricted work activity or the number of days away from work. Count the number of calendar days the employee was on restricted activity or away from work, but not the day the incident occurred. If one incident involved both days away and days of restricted activity, enter the total number of days for each. You can stop counting restricted days once the total of either, or the combination of both, reaches 180. Four Steps to Recordkeeping Your recordkeeping duties under Cal/OSHA can be summarized in these four steps: 1. Within seven calendar days of receiving information about a case, decide if Cal/OSHA regulations require you to record it. 2. Determine whether the incident is a new case or a recurrence of an existing one. 3. Establish whether the case was work-related. 4. If the case must be recorded, decide which form you will complete as the injury and illness incident report. Note that you may use Cal/OSHA s 301 Injury and Illness Incident Report or an equivalent. 2007 EMPLOYER RESOURCE INSTITUTE (10)

Major Differences Between the California and Federal Recordkeeping Standards California Standard Does not have a reporting requirement contained within the recordkeeping regulation. The California reporting requirement for serious occupational injury, illness or death, are contained within Title 8, Section 342 with no 30-day time frame limit from incident to death. Section 14300.2 Table 1, Note: Retention of existing California requirement for employers in SIC Code 781 (Motion Picture Production and Allied Services) to record occupational injuries and illnesses in California. Exceptions are provided for SIC 781 employers regarding time frames for recording and for providing access to records. Language added to Section 14300.8(a) Note: Note clarifying the scope of the recording requirement for Recording of Needlesticks and Sharps Injuries. The note states that the requirements for recording needlestick injuries are not limited to health care and related businesses. Language added to Section 14300.30: Retention of existing California requirement to help assure timely availability of records to employees, their representatives, and government representatives when records are kept elsewhere: Additional language states that when keeping records for multiple establishments at a headquarters or other central location employer must have: 14300.30(b)(2)(C) the address and telephone number of the central location or headquarters where records are kept available at each worksite; and 14300.30(b)(2)(D) personnel available at the central location or headquarters where records are kept during normal business hours to transmit information from the records maintained there as required by Section 14300.35 and Section 14300.40 Federal Standard Has a reporting requirement, for fatalities and multiple hospitalizations as a result of a work-related incident, contained within in the recordkeeping regulation. The reporting requirements are in section 1904.39 of the recordkeeping regulation. SIC Code 781 (Motion Picture Production and Allied Services) are not required to record occupational injuries and illnesses under the Federal OSHA standard. No such clarifying language included in the Federal OSHA standard. Not specifically provided for in the Federal OSHA standard. 2007 EMPLOYER RESOURCE INSTITUTE (11)

California Standard Language added to Section 14300.32 (b)(7): Retention with modification of existing California requirement for employers to present or mail the annual summary to each employee who does not normally report, at least weekly, to a location where their annual summary is posted. Employers must present or mail the annual summary to the employees, for the establishment where the employees are linked for recordkeeping purposes [as described at 14300.30 (b)(3)]. Applies to employees who receives pay during the February through April posting period. Language added to Section 14300.32 (b)(8): States that for multi-establishment employers, there is no requirement for posting of annual summaries for those establishments where operations have closed down during the calendar year. Language added to Section 14300.35 (b)(2)(c): Requires access to current or stored copies of the Annual Summary, in addition to current or stored copies of the Cal/OSHA Form 300. Copies must be provided to employees, former employees, personal representatives, or authorized representatives by the end of the next business day. Language added to Section 14300.35(b)(2)(C) Exception: Requires establishments in SIC Code 781 to provide the current or stored Cal/OSHA Form 300 or Annual Summary, within seven (7) calendar days rather than by the end of the next business day. Copies must be provided to employees, former employees, personal representatives, or authorized representatives. Federal Standard Federal OSHA standard relies on new longer posting period to assure availability of summary data to employees. Federal OSHA standard relies on new longer posting period to assure availability of summary data to employees. Same requirements except the Federal OSHA standard does not specify that copies of the Annual Summary must be supplied to the requestor(s). No equivalent requirement in the Federal OSHA standard. 2007 EMPLOYER RESOURCE INSTITUTE (12)

California Standard Language added to Section 14300.35(b)(2)(E)(2): States specifically what personally identifying information must be deleted when authorized employee representatives ask for copies of the Cal/OSHA form 301, Incident Reports, or equivalent forms. The personally identifying information that must be deleted is: Employee name; Employee address; Employee date of birth; Employee date of hire; Gender; Name of the physician; Location where treatment was provided; Whether the employee was treated in an emergency room; and Whether the employee was hospitalized overnight as an in-patient Language added to Section 14300.35 (C): Retention of existing California requirement (with modification for new privacy provisions) affirming the rights of employees and their representatives to bargain collectively for access to information relating to occupational injuries and illnesses in addition to that information mentioned in section 14300.35. Language added to Section 14300.38 (a)(b)&(c): Distinguishes between private and public employers with respect to the granting authority for variance petitions. Language added to Section 14300.40 (a): Provides government representatives access to the original recordkeeping documents and one set of copies free of charge. Federal Standard Section 1904.35 states generically what information must be included and also deleted when authorized employee representatives ask for copies of the Federal/OSHA Form 301, Incident Reports. Information to be included is the section title Tell us about the case on the OSHA 301 Form All other information on the 301 must be deleted Does not mention equivalent forms when referencing the Federal OSHA Form 301. No such language in the Federal OSHA standard. Section 1904.38 does not distinguish between public and private employers with respect to submitting variance petitions because the Federal standard, in Federal OSHA states, only applies to private employers. Section 1904.40 requires that copies of the records (not originals) be supplied to government representatives upon request, free of charge. 2007 EMPLOYER RESOURCE INSTITUTE (13)