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Illness and Injury Records as Evidence of OSHA Violation

Injuries and Illness
by ckilbourne

Is it possible that your injury and illness records could be used against you as evidence of OSHA violations? The answer may surprise you.

In a BLR webinar entitled "OSHA Recordkeeping: What’s Recordable and What’s Not," Adele L. Abrams, Esq., an attorney and nationally recognized expert on occupational safety and health, offered insight into the recording of illness and injury for OSHA purposes and the possibility of those records being used as evidence to prove violation of safety and health standards.

OSHA policy states that recording an injury or illness does not prove a violation of an OSHA rule. However, admissions of violations in an illness and injury log can be admissible in court proceedings.

Therefore, it very important to be attentive to how an incident is recorded in the OSHA 300 log. Abrams advises you to provide no more than the mandatory amount of requested information.

Providing a very effusive description of a recordable event may give OSHA an "admission-against-interest" and result in both civil and criminal prosecution of the employer.


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No Unnecessary Information

For example, if an employee falls and injures his or her back at work, it is sufficient to record the injury and any lost time. It would not be necessary to record whether or not the employee was correctly wearing the prescribed fall protection equipment.

Similarly, recording "occupational illness" can have wide-reaching consequences leading to tort liability. Abrams therefore encourages complete, yet minimal recording of details. A tort is defined as a civil, rather than criminal, "wrong"—for example, negligence.

Some states, for instance, permit injured employees or their family members to pursue a tort action against an employer for exposure to toxic materials even if the incident is work compensable. To defend such an action an employer would have to be able to demonstrate that no overexposure to toxics (such as lead, asbestos, methylene chloride, benzene, etc.) occurred in its workplace. Sampling data would, therefore, become critical in proving the nonexposure.

Abrams says that it is vital to know and abide by your reporting requirements to avoid citation and penalties from OSHA inspectors. But she emphasizes that it is also important to balance the amount of unnecessary information provided in order to protect against vulnerability to further liability for a work-related illness or injury.


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Don’t Be Vulnerable, Check!

Don’t be vulnerable to OSHA violations or liability for employee injuries. Be smart and check to make sure you are in compliance and employees are protected.

A great way to do this is to check for safety with BLR’s Safety Audit Checklists. This safety and health compendium provides checklists on more than 50 essential workplace topics, including recordkeeping, to help you avoid violations and liability.

Each Safety Audit Checklists section contains:

  • A review of applicable OSHA standards
  • Safety management tips
  • Training requirements
  • At least one comprehensive safety checklist

Many sections also contain a compliance checklist, which highlights key provisions of OSHA standard. All checklists can be copied and circulated to supervisors and posted for employees.

All told, this best-selling program provides you with more than 300 separate safety checklists keyed to three main criteria:

  • OSHA compliance checklists, built right from the government standards in such key areas as HazCom, lockout/tagout, electrical safety, and many more.
  • "Plaintiff attorney" checklists, built around those non-OSHA issues that often attract lawsuits.
  • Safety management checklists that monitor the administrative procedures you need to have for topics such as OSHA 300 Log maintenance, training program scheduling and recording, and OSHA-required employee notifications. 

Make as many copies as you need for all your supervisors and managers, and distribute. What’s more, the entire program is updated annually. And the cost averages only about $1 per checklist.

If this method of ensuring a safer, more OSHA-compliant workplace interests you, we’ll be happy to make Safety Audit Checklists available for a no-cost, no-obligation, 30-day evaluation in your office. Just let us know, and we’ll be pleased to arrange it.

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