Beveridge & Diamond

OSHA to Launch National Emphasis Program on Injury and Illness Recordkeeping

Beveridge & Diamond, P.C., April 6, 2009

Most companies are subject to the Occupational Safety and Health Administration (“OSHA”) injury and illness recordkeeping requirements.  They should expect to see heightened enforcement activity by OSHA later this year.  A Congressional explanatory statement accompanying the Omnibus Appropriations Act, 2009, Public Law 111-8, directs OSHA to launch “a recordkeeping enforcement initiative on injury and illness reporting, addressing the apparent lack of completeness of the OSHA Log of Work-related Injuries and Illnesses.”  In response, OSHA has informally announced it is planning a national emphasis program on recordkeeping.  More details are expected by June 2009.

I.    OSHA’s Recordkeeping Rules

Section 8(c) of the Occupational Safety and Health Act of 1970 requires employers “to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses.”[1]  Beginning in 1971, OSHA promulgated recordkeeping regulations at 29 C.F.R. Part 1904 to implement this provision.  Until a few years ago, those rules ran only six pages in the Code of Federal Regulations, but were supported by Bureau of Labor Statistics (“BLS”) guidelines running 80 pages and by hundreds of letters of interpretation.  In 2001, OSHA overhauled the recordkeeping rules, to provide more comprehensive guidance and codify past interpretations regarding which companies are subject to the rule, when an injury or illness must be recorded, and the manner in which those injuries or illnesses should be recorded.[2]  OSHA provided further guidance for companies in 2004, by issuing a Recordkeeping Policies and Procedures Manual[3] and a Recordkeeping Handbook.[4]  In addition, OSHA has continued to issue letters of interpretation clarifying the recordkeeping requirements.  Since the 2001 overhaul of Part 1904, OSHA has issued 42 interpretations.[5]

II.    Work-Related Illness and Injury Reporting and Trends

In conjunction with the recordkeeping requirements that apply to companies, the Occupational Safety and Health Act and OSHA regulations direct BLS to collect and compile “accurate statistics on work injuries and illnesses.”[6]  BLS carries out this obligation by selecting a representative number of employers to report their injury and illness data[7] and by creating an annual Survey of Occupational Injuries and Illnesses (“SOII”) that compiles and analyzes this data.  Between 2003 and the present, the SOII has cited declining rates of work-related injuries, illnesses, and fatalities.[8]  OSHA officials have relied on these declining rates as evidence that OSHA is successfully carrying out its mission, and have repeatedly cited these rates during Congressional oversight hearings.[9]

III.    Allegations of Work-Related Injury and Illness Underreporting

Several academic studies and media reports have alleged that the SOII data is inaccurate and that some companies are chronically underreporting work-related injuries and illnesses.  In addition, some have alleged that employees have been discouraged from reporting work-related injuries and illnesses through intimidation, harassment, and disciplinary action.  For example:

  • Researchers at Michigan State University found that employers’ OSHA logs captured only 31% of illnesses and 33% of injuries that are reported in other databases.  They further found that the SOII did not account for up to 68% of work-related injuries and illnesses occurring annually in Michigan from 1999 to 2001.[10]
  • Another academic study found that the actual number of work-related injuries and illnesses for companies that are subject to the recordkeeping rule is 40% higher than the SOII estimate.[11]
  • A 6-part series in the Charlotte Observer reported that workers in the poultry industry were harassed and fired for reporting injuries like shattered ankles, numb hands from tens of thousands of repetitive motions, and serious knife cuts.  In addition, most of these injuries did not appear in the employer injury and illness logs.[12]

These and similar reports triggered increased Congressional oversight and scrutiny on OSHA’s enforcement of the recordkeeping rule and the SOII last year.  On April 22, 2008, Senators Patty Murray and Edward Kennedy requested that the Government Accountability Office (“GAO”) investigate whether OSHA effectively ensures that employers are providing accurate workplace injury and illness reports;[13] a final report is expected shortly.  Additionally, on June 19, 2008, the majority staff of the House Committee on Education and Labor issued a report entitled “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,”[14] and the Committee held a hearing on the underreporting of workplace injuries and illnesses.[15] 

During this hearing, the Committee heard testimony from OSHA and BLS officials, a physician, an industry representative, and a former employee who claimed to have been fired for his attempts to improve worker safety.  Bob Whitmore of OSHA, who had been on administrative leave since July 2007, stressed to the Committee that there was a lack or recordkeeping enforcement by OSHA and that the “current OSHA injury and illness information is inaccurate, due in part to wide scale underreporting by employers.”  The physician, Dr. Robert McLellan, the immediate past president of the American College of Occupational and Environmental Medicine, recommended that “OSHA might undertake a special emphasis program to increase the number of medical records reviewed as part of OSHA’s Audit and Verification Program of Occupational Injury and Illness Records (CPL 02-00-138).”

IV.    Congress Calls for Increased Recordkeeping Enforcement

In 2009, following up on last year’s hearing, Congress directed OSHA to initiate an enforcement initiative on recordkeeping.  The Omnibus Appropriations Act, 2009 (the “Appropriations Act”), signed by President Obama on March 11, 2009,  provides more than $513 million for OSHA.[16]  This amount represents a $27 million increase in funding from the fiscal year 2008 level.  The Congressional explanatory statement for the Appropriations Act provides:

The [Labor] Department should use the increase above the fiscal year 2008 funding level to begin rebuilding OSHA's enforcement capacity and to increase the pace of standard setting.  An important component of this mission is to enhance enforcement and oversight of injury and illness recordkeeping to ensure complete and accurate recording and reporting by employers.  OSHA should use $1,000,000 of the funds provided above the request for a recordkeeping enforcement initiative on injury and illness reporting, addressing the apparent lack of completeness of the OSHA Log of Work-related Injuries and Illnesses.  The Department shall provide a letter report on OSHA's current and planned activities in this area to the Committees on Appropriations of the House of Representatives and the Senate not later than 90 days after enactment of this Act.[17]

The report to Congress on a new recordkeeping enforcement initiative is due by June 19, 2009.

The Appropriations Act also increases funding for BLS.  The explanatory statement directed that some of that increase go to better tracking of injuries and illnesses:

The increase above the request for Compensation and Working Conditions is intended to strengthen the current examination of the differences between workers’ compensation and BLS survey data, better understand employer injury and illness recording practices, and conduct a pilot study using multiple data sources to capture injury and illness data. BLS shall provide a letter report on its current and planned activities in this area to the Committees on Appropriations of the House of Representatives and the Senate not later than 90 days after enactment of this Act.[18]

V.    Announcement of National Emphasis Program on Recordkeeping

In apparent response to the Appropriations Act and last year’s Congressional oversight, OSHA has committed itself to a national emphasis program on recordkeeping.  An OSHA official told a business group on March 24, 2009 (less than two weeks after enactment of the Appropriations Act) that it is developing a national emphasis program focusing on the enforcement of the recordkeeping rule.  Richard Fairfax, Director of OSHA’s Directorate of Enforcement Programs, explained that the national emphasis program will involve the examination of employer OSHA logs and records to verify accurate recording of work-related injuries and illnesses.  Fairfax declined to provide more details, but did say that the national emphasis program could be put into place within six months.  

OSHA has brought some large recordkeeping enforcement actions in recent years.[19]  Recordkeeping is also a routine part of inspections; in the 2008 fiscal year, OSHA cited alleged violations of Part 1904 2,705 times, in 2,413 inspections, for adjusted penalties of $857,442.[20]

VI.    Conclusion

In light of OSHA’s recent announcement, companies should expect heightened enforcement activity by OSHA focused on recordkeeping. 

For more information, please contact Mark Duvall at This alert was prepared with the assistance of Jayni Lanham. 

[1] 29 U.S.C. § 657(c).

[2] 66 Fed. Reg. 5916 (Jan. 19, 2001).  OSHA subsequently made minor amendments.

[3] OSHA Directive Number: CPL 02-00-135, available at

[4] OSHA 3245-01R (2005), available at  Although dated 2005, the HTML version available on the OSHA website includes 2007 interpretations, and the website indicates that the page is current through February 11, 2008.

[5] These are available at

[6] 29 U.S.C. § 673.

[7] 29 C.F.R. § 1910.42.

[8] Bureau of Labor Statistics, Workplace Injury and Illness Summary (Oct. 23, 2008), available at

[9] See, e.g., Statement of Edwin G. Foulke, Jr., Assistant Secretary, OSHA, Hearing Before the U.S. House of Representatives Committee on Education and Labor (June 24, 2008), available at
; Opening Statement of Congressman George Miller, Chairman, U.S. House of Representatives Education & Labor Committee, Hearing on “The Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses” (June 19, 2008), available at
; OSHA, “OSHA Enforcement: Striving for Safe and Healthy Workplaces,” available at
; Statement of Edwin G. Foulke, Jr., Assistant Secretary, OSHA, Hearing Before the U.S. House of Representatives Subcommittee on Workforce Protections Committee on Workforce Protections, Committee on Education and Labor (Apr. 24, 2007), available at

[10] Kenneth D. Rosenman, Alice Kalush, Mary Jo Reilly, et al., How Much Work-Related Injury and Illness is Missed by the Current System?, 48 J. Occupational & Envtl. Med. 357 (2006), available at

[11] Gordon Smith, Helen Wellman, Gary Sorock, et al., Injuries at Work in the US Adult Population:Contributions to the Total Injury Burden, 95 Am. J. Pub. Health. 1213 (2005), available at

[12] The series is available at

[13] Press release, “Senators Murray and Kennedy Call for GAO Investigation into Underreporting of Workplace Injuries and Illnesses” (Apr. 22, 2008), available at

[14] The House Report is available at

[15] The  testimony from the hearing is available at

[16] Pub. L. 111-8.

[17] Explanatory statement submitted by Mr. Obey, Chairman of the House Committee on Appropriations, regarding H.R. 1105, Omnibus Appropriations Act, 2009, 155 Cong. Rec. H12168-69 (daily ed. Feb. 23, 2009) (emphasis added).  Section 4 of the Appropriations Act provides, “The explanatory statement regarding this Act printed in the House of Representatives section of the Congressional Record on or about February 23, 2009 by the Chairman of the Committee on Appropriations of the House shall have the same effect with respect to the allocation of funds and implementation of this Act as if it were a joint explanatory statement of a committee of conference.” 

[18] 159 Cong. Rec. H2169 (daily ed. Feb. 23, 2009).

[19] See, e.g., Chao v. OSHRC (Jindal United Steel and Saw Pipes USA), 480 F.3d 320 (5th Cir. 2007), cert. denied, 128 S. Ct. 707 (2007) (remanding as inadequate an Administrative Law Judge’s assessment of $70,000 for willful recordkeeping violations where OSHA proposed penalties of $1.7 million and $536,000 in related cases); Hercules, Inc., 20 BNA OSHC 2097 (Rev. Comm’n 2005) (vacating recordkeeping penalties of $3,140,000 assessed by OSHA for failure to abate recordkeeping violations).

[20] Data calculated from