FMLA request: Tipoff to a potentially recordable incident

by on April 5, 2012 · 0 Comment POSTED IN: Workplace Safety Network
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A worker’s application for FMLA leave may send a signal that a work injury or illness is OSHA 300/301 recordable. And it’s a signal you’d do well to heed, judging by a recent legal case in Washington state.

What happened: A U.S. Postal Service worker complained of severe allergic reactions that she thought were being caused by her dusty work environment.

She got her doctor to fill out a standard form requesting FMLA leave. He wrote that her allergies, related to her working conditions, had caused her to miss work and would require treatment and prescription medication.

No log entry, incident report
The Postal Service eventually granted the FMLA leave. But it never recorded the illness in the OSHA 300 log, or filled out an OSHA 301 incident report.

When OSHA sent an industrial hygienist (IH) to investigate, the IH cited the employer for failing to report a recordable incident of work-related illness causing missed days.

The citation also covered another worker who missed work because of dust allergies and later was transferred away from a machine that she claimed was aggravating her condition. This incident wasn’t recorded even though the second worker had a note from her doctor linking her condition to her work.

The Postal Service appealed the citation to the Occupational Safety and Health Review Commission.

The decision
But the Commission said the workers’ allergic reactions were OSHA 300/301 recordable, and the Postal Service should have known it.

As far as the first worker was concerned, her FMLA request that mentioned a work-related allergy, plus the fact that she missed work as a result, was enough to put the employer on notice of a recordable incident, the Commission said.

The Postal Service argued that OSHA hadn’t proven the worker’s condition was work-related, and her doctor’s diagnosis wasn’t conclusive.

But the Commission said the diagnosis didn’t have to be conclusive. The point of OSHA’s mandatory recording rule, the Commission noted, is to “gather information about what may be latent trends in illnesses and injuries within the workforce,” so as to facilitate research on causes and prevention. Thus any incident where there is some connection between work conditions and injury or illness should be recorded.

Takeaway
This decision, by the Commission’s Chief Administrative Law Judge, is under review by the full Commission and isn’t final yet. One key area of disagreement between the Postal Service and the Judge: the FMLA’s requirement that the content of medical certifications be maintained as confidential.

But no matter the ultimate result of the case, it makes an important point: The very fact that an FMLA request has been made may signal that a potentially recordable injury or illness has occurred.

As Safety Director, you may want to be in the FMLA loop, along with whoever specializes in FMLA matters. And you clearly want to be alert to any information that suggests an OSHA 300/301 incident.

Cite: Sec’y. of Labor v. U.S. Postal Service (Seattle), No. 08-1547, OSHRC.

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