NEW OSHA COMMUNICATION AND RECORDKEEPING STANDARDS

By David L. Hoffman, Esq.

I. OSHA's Communication Initiative:

The Occupational Safety and Health Administration ("OSHA") announced that its top priority for 2002 is ensuring that employers are effectively communicating with the nation's changing workforce. In practical terms this means that employers must communicate with a workforce that often speaks several languages, none of which may be English. According to Bureau of Labor statistics, during 2000, the fatality rate for Hispanic employees rose by more than 10 percent, while the fatality rates for all other groups declined. OSHA believes this statistic reflects a disconnect in communication between non-Hispanic employers and Hispanic employees.

On February 25, 2002, Secretary of Labor Elaine Chao announced that OSHA launched a Spanish web page in an effort to reach out to Spanish-speaking employees and employers. Although not as comprehensive as OSHA's English web page, OSHA's Spanish-language web page contains general information regarding employee rights, employer responsibilities, and a Spanish-language version of OSHA's complaint form. Both web sites may be accessed on the Internet at: www.osha.gov. Although OSHA's efforts are focusing on Spanish speaking employers and employees, effective communication extends to all languages spoke at a workplace. This can present difficult challenges to an employer with a multi-ethnic workforce.

OSHA best practices revolve around employers implementing work policies and procedures that both meet OSHA's standards and establish a safety-prevention program. A verifiable training program is crucial to an effective safety program and serves two main purposes. First, an effective training program greatly decreases the likelihood of accidents. Second, an effective and verifiable training program decreases the likelihood that OSHA will issue a citation to an employer in the event of an accident. In general, if an onsite accident occurs, OSHA will investigate the accident and issue a citation, even if the employee was acting contrary to express safety training and instructions. However, if an employer can demonstrate to OSHA that the employee received effective training but acted contrary to this training, OSHA is less likely to issue a citation.

In order to make such a showing, employers may keep attendance records for all training and give attendees a written quiz on the material presented. These attendance records should include a sign-in sheet, the date and time of the training, and the name of the person that gave the training. The quiz results provide a record that the employee understood the training and did not merely "sign-in" and leave.

Effective communication does not end with training materials; however, it must also allow for employees to express safety concerns to their superiors. When a workplace consists of only one non-English speaking group of employees (for example Hispanic employees), an employer can ensure effective communication by translating training materials into Spanish, and ensuring that a supervisor speaks fluent English and Spanish. Effective communication becomes more difficult when a workplace contains several distinct, non-English-speaking employees. Two common examples of such facilities are food processing facilities, which often are located in rural areas, and industrial manufacturing facilities, which often are located in metropolitan areas. Although difficult, it is imperative that employers ensure that all employees are trained in an effective manner and that all employees have at least one spokesperson that can express their safety concerns to persons in supervisory positions.

II. OSHA's Changes to Recordkeeping Rules:

On January 2, 2002, OSHA's new standards for the recording and reporting of occupational injuries and illnesses became effective. These standards include new reporting forms on which the employer is required to record injuries and illnesses. The standards also require employers to post the establishment's annual injury/illness summary for three months instead of one month. However, employers only need to post their 2001 summary of injuries and illnesses for one month. The new standards also explicitly require employers to record needlestick and sharp injuries. Almost all employers with more than 10 employees are required to keep injury and illness records, except for employers in low hazard industries, which are specified by standard industrial code.

Employers covered by the new standards should have received new forms from OSHA by December 2001. The new reporting forms are also available on the Internet at: www.osha-slc.gov/recordkeeping/index.html. In addition to the reporting forms, the same Internet address provides access to training materials, fact sheets, and answers to frequently asked questions regarding the new standards. In addition, one can access the same Internet address can be accessed to determine if a workplace is subject to the recordkeeping standards.

David L. Hoffman is an associate with AGG and is a member of the firm's Environmental, Food and Drug, and Employment Law Practice Groups. If you have any questions concerning the issues presented in this article or any other OSHA matter, please contact Mr. Hoffman at 404.873.8740 or by e-mail at David.Hoffman@agg.com.

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