Employers can perceive mandatory record keeping as either a burden or an opportunity.
Whether employment-related records are kept on paper or electronically stored in an information management system, attitude has a lot to do with end results.
The scope of laws that dictate how employers, medical professionals and third parties should use, disclose and dispose of records is becoming more complex. In an article published in the summer edition of UL Workplace Health and Safety’s Tracker journal, D. Wesley Newhouse, an attorney with Newhouse, Prophater, Letcher & Moots, Columbus, Ohio, summarizes laws that govern record keeping and offers recommendations to ensure compliance, security and confidentiality.
He says every management lawyer’s nightmare is the supervisor’s “private file” with a record that, when taken out of context, becomes Exhibit A in a former employee’s trial. In such instances, supervisors are not only making and keeping records for their own convenience, they are creating legal evidence.
While the law requires that an employer create certain evidence, such as an illness and injury log or a supplemental report of an incident, Newhouse advises against documenting anything that is not required by law or does not serve a specific business purpose. He also recommends adopting confidentiality safeguards for sensitive records such as:
- pre-placement drug screen results
- post-offer physical examination results
- health insurance claim information
- employee requests for leave and related medical reports
- releases from physicians to return to work
- workers’ compensation medical records
- information detailing disabilities
- health and life insurance application information
- OSHA supplemental incident reports
From a workplace health and safety perspective, it’s helpful to approach documentation in a dynamic way – not merely as paperwork but as evidence of one’s own due diligence. A demonstration of due diligence means taking all reasonable precautions to prevent injuries or accidents, and if/when they do occur, to record and follow-up on them. In exercising due diligence, an employer identifies workplace hazards and develops plans for corresponding preventive and corrective actions.
For good reasons, many employers rely on automated learning, safety and occupational health management systems to collect, store and integrate relevant data – and help them watch their backs, especially in highly regulated and potentially litigious situations. For example, when representatives from regulatory agencies ask about employee certification or training, they want to see documentary evidence of academic, technical and safety training as well as hands-on proficiency.
A safety director recently told me she had to leave her home at 4 a.m. to be at the site of work-related accident in time to meet a government investigator. “Without instant access to our online system, I would never have been able to demonstrate our due diligence and show the investigator that the worker who was involved in the accident was up to date on his training and competent for the job he was doing,” she said.
Keeping paper and electronic files in order also makes the regulator’s job a lot easier during an inspection and casts a positive light on the company under review. Disorderly and incomplete records unnecessarily broaden the discovery process. (Refer to our webinar on Effectively Handling an OSHA Inspection: How to Legally Protect Your Rights featuring attorney and former OSHA Director Edwin G. Foulke, Jr. for additional insights.)
In most circumstances, the agency charged with enforcing a record-keeping statute has the right to see the record. However, it has to restrict its inquiry to applicable laws and the current investigation. Because each agency has its own set of regulations governing the scope of record requests and privacy protections, it pays to be familiar with theses variances before an inspection occurs.
You make the choice: Use records to your advantage, or they may be used against you.
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