Willful record-keeping violations lead to major OSHA fines, offer lessons
September 1, 1999 6 minutes read
Willful record-keeping violations lead to major OSHA fines, offer lessons
Avondale fined $180,000 for not reporting all injuries, lost workdays
Recent citations issued for egregious violations of federal standards on injury and illness record keeping represent an excellent opportunity to remind employers about the need for keeping good, accurate data, says a federal official.
In a case that federal officials say highlights some of the ways employers try to get around record-keeping requirements, the Occupational Safety and Health Administration (OSHA) recently charged Avondale Industries of New Orleans with willfully failing to properly record hundreds of injuries and illnesses at its shipyard and with refusal to make injury and illness records available for inspection. OSHA proposed $180,000 in penalties for the alleged violations.
This is not the first time in recent months that Avondale has come under OSHA’s scrutiny. On April 5, the agency cited the shipyard for numerous alleged safety and health violations and proposed penalties totaling $537,000. That case resulted from a 64-item complaint by the International Brotherhood of Boilermakers, New Orleans Metal Trades Council, which also alleged record-keeping violations. Avondale has contested these citations.
The recent record-keeping citations and proposed penalties represent one of the largest cases of record-keeping violations over the last decade. "This is not merely a paperwork’ violation," Secretary of Labor Alexis Herman, PhD, said in announcing the citations. "Accurate records of injuries and illnesses are necessary to pinpoint hazards causing injuries and illnesses and to correct them."
Assistant Secretary of Labor for Occupational Safety and Health Charles Jeffress, PhD, said Avondale "did not cooperate when it came to providing OSHA with access to necessary medical records. The shipyard allowed inspectors to see these records only after a federal court ordered them to do so. They continue to deny OSHA access to the records for leased employees under Avondale’s supervision."
The citations are for these three alleged willful violations:
• OSHA cited Avondale for not completing the OSHA 200 log and summary of injuries and illnesses as required, with a proposed penalty of $70,000.
• OSHA said it found more than 700 cases of improper recording when it reviewed a random sample of almost 3,500 employee medical files.
• The employer failed to enter injuries and illnesses that were recordable, including lost workday cases, involving either days away from work or restricted workdays. (See examples of the alleged violations, p. 99.)
Another citation was for not providing a supplementary record of each recordable injury and illness to OSHA for inspection and for not maintaining a supplementary record that contained the necessary information, with a proposed penalty of $40,000.
Avondale also was cited by OSHA for not providing it with access to employee exposure and medical records, with a proposed penalty of $70,000. Willful violations are those committed with an intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act and regulations.
Occupational Health Management sought comments from Avondale, but several phone calls were not returned.
OSHA expects employers to keep good records, and there is little room for error, says Bob Whitmore, OSHA’s chief of the division of record-keeping requirements in Washington, DC. Federal regulators take a hard line on record keeping because it’s so important to nearly everything else that OSHA does, he says.
"Why do employers keep the OSHA 200 log? Many people say it’s for the employer to keep track of things, but that’s not even close," he says. "It’s for us to come in and see what’s going on. You know what’s going on in your house, but I’m a visitor, and I look at your log to see what’s happening here. If you don’t record it, I don’t see it."
Whitmore notes that OSHA inspectors do not always look at an employer’s records in the way people might expect. For instance, an especially "clean" record with few injuries and illnesses might look good to the employer, but an inspector might see that as a red flag. Certain types of injuries and illnesses, and certain levels of them, are expected in the employer’s industry, so the lack of such expected data can draw attention.
"I want to know how you’ve avoided those problems so that we can share your ideas with others to help them avoid these cases, too," he says. "If those items are not there, either you’re doing something good that I want to know about or you’re jimmying the books. When we see these records, we say, OK, but are they real?’"
OSHA regulators know the employer with the highest lost workdays just might be the best record keeper, and they take that into account, Whitmore says.
Not uncommon to fudge records
Inevitably, some employers will try to get around OSHA’s record-keeping requirements, Whitmore says. "There are those who don’t agree with our concepts and don’t want to keep their records accurate for that reason," he says. "When people jimmy the numbers, it’s rarely done to avoid an OSHA inspection like people thought in the 1980s. My experience tells me that’s one of the last things people worry about. The real motivation is always money — either to avoid potential workers’ compensation liability or sometimes because someone’s bonus is tied to the safety numbers."
The most common ways that people fudge the numbers involve restricted work activity and the recording of illnesses. Restricted work activity and days away from work are closely tied to workers’ compensation costs, so there sometimes is a strong inclination to creatively downplay the real numbers, Whitmore says. In some cases, the employer actually does have an excellent restricted duty program but still feels compelled to exaggerate its effectiveness. As far as OSHA’s concerned, that is not the way to go.
"My experience is that people who have good quality programs usually have good record-keeping programs as well," Whitmore says. "With recording illnesses, we sometimes find that people are reluctant to record them all because of the workers’ comp issues. Attorneys sometimes will take what’s recorded on the OSHA 200 log as an admission of liability and run with it."
Large employers probably have a good understanding of OSHA record-keeping requirements, but smaller businesses may not be completely up to speed, Whitmore says. That need could represent an educational and consulting opportunity for occupational health professionals because, Whitmore says, OSHA makes no allowance for poor record keeping due to the size of the employer.
"If you’re required to keep these records, we expect you to keep them accurately," he says. "I don’t think the Internal Revenue Service makes any allowances for inaccuracies just because you’re a small business, either."
Whitmore points out that OSHA record-keeping violations received a lot of attention in the 1980s, especially in 1986 when a West Virginia employer was cited for such violations totaling more than a million dollars. That was the first OSHA fine that large, and Whitmore says it was significant that the citation involved record keeping.
"Then there was a frenzy of record-keeping citations in the mid-80s, and then in the 90s there was practically nothing. It just went off the radar screen," he says. "But then two years ago, the Landis Plastics case got some attention, and now the Avondale case is putting record-keeping violations back on the radar screen if Landis didn’t." (For more on the Landis citations, see p. 100.)
The potential penalties can be huge for record-keeping violations. Depending on the exact circumstances and history of OSHA violations, inspectors can fine an employer up to $70,000 for each instance of a willful and egregious violation. That’s for each and every failure to properly record an injury or illness.
OSHA is not likely to penalize an employer to that extent except in extreme circumstances, but the recent case involving Avondale nevertheless shows that the penalties can be large.
"Two factors could prompt OSHA to go for really big fines," he says. "One is a large number of violations, though large’ is undefined. Another is a situation in which the proper recording of these incidents would have allowed you to see trends and given you the opportunity to correct hazards."
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