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OSHA Bulletin: Recordkeeping and Reporting Post-BFI


In a prior OSHA Bulletin, we wrote about the National Labor Relations Board’s decision in the case of Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, and FPR-II, LLC, d/b/a Leadpoint Business Services, and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, Petitioner, Case 32–RC–109684 (the “BFI Decision”). You can view the Bulletin here.

Since then, a number of our readers have inquired and asked whether the BFI Decision and the new definition of joint employer will create new obligations relative to recordkeeping and/or reporting work-related deaths, injuries, and illnesses.

OSHA, pursuant to 29 CFR 1904, requires that employers with ten or more employees maintain records of work-related deaths, injuries, and illnesses. Those records are in the form of 300, 300A, and 301 logs. 20 CFR 1904 also requires that employers report to OSHA all work-related deaths, overnight hospitalizations for more than observation, amputations, and losses of eyes1 experienced by their employees. Though OSHA has yet to clearly indicate that it is adopting the definition of joint employment set forth by the NLRB in the BFI Decision, we believe it is likely to do so. Materials OSHA created in conjunction with its “Temporary Worker Initiative” provide some guidance about what OSHA is likely to expect of joint employers.

One such Temporary Worker Initiative publication includes the following statement that is instructive relative to joint employees:

The non-supervising employer (generally the staffing agency) still shares responsibility for its workers’ safety and health. The staffing agency, therefore, should maintain frequent communication with its workers and the host employer to ensure that any injuries and illnesses are properly reported and recorded. Such communication also alerts the staffing agency to existing workplace hazards and to any protective measures that need to be provided to its workers. Ongoing communication is also needed after an injury or illness so the recording employer can know the outcome of the case.

Thus, as relates to joint employers, the employer that does not maintain day-to-day supervision or control over the joint employee should maintain communications with the employer who does, ensure that work-related deaths, injuries, and illnesses are properly recorded and reported, and periodically audit or otherwise inspect the responsible employer’s records. The employer who has day-to-day supervisory responsibility must maintain records of work-related deaths, injuries, and illnesses and properly report deaths, overnight hospitalizations for more than observation, amputations, and eye losses.

As OSHA clarifies its intentions relative to the BFI Decision and adoption of the new definition of joint employers, we will continue to provide updates.

1 Amputations and eye losses must occur within 24 hours of the injury.