• Publication Date: |
01/19/2001 |
• Publication Type: |
Final Rules |
• Fed Register #: |
66:5916-6135 |
• Standard Number: |
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• Title: |
Occupational Injury and Illness Recording and Reporting Requirements |
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Part IV DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1904 and 1952 [Docket No. R-02] RIN 1218-AB24 Occupational Injury and Illness Recording and Reporting Requirements AGENCY: Occupational
Safety and Health Administration (OSHA), U.S. Department of Labor. ACTION:
Final rule. SUMMARY:
The Occupational Safety and Health Administration (OSHA) is revising its rule
addressing the recording and reporting of occupational injuries and illnesses
(29 CFR parts 1904 and 1952), including the forms employers use to record
those injuries and illnesses. The revisions to the final rule will produce
more useful injury and illness records, collect better information about the
incidence of occupational injuries and illnesses on a national basis, promote
improved employee awareness and involvement in the recording and reporting of
job-related injuries and illnesses, simplify the injury and illness
recordkeeping system for employers, and permit increased use of computers and
telecommunications technology for OSHA recordkeeping purposes. This
rulemaking completes a larger overall effort to revise Part 1904 of Title 29
of the Code of Federal Regulations. Two sections of Part 1904 have already
been revised in earlier rulemakings. A rule titled Reporting fatalities and
multiple hospitalization incidents to OSHA, became effective May 2, 1994 and
has been incorporated into this final rule as § 1904.39. A second rule
entitled Annual OSHA injury and illness survey of ten or more employers
became effective on March 13, 1997 and has been incorporated into this final
rule as § 1904.41. The
final rule being published today also revises 29 CFR 1952.4, Injury and
Illness Recording and Reporting Requirements, which prescribes the
recordkeeping and reporting requirements for States that have an occupational
safety and health program approved by OSHA under § 18 of the Occupational
Safety and Health Act (the "Act" or "OSH Act"). DATES:
This final rule becomes effective January 1, 2002. FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and Health
Administration, U.S. Department of Labor, Directorate of Safety Standards
Programs, Room N-3609, 200 Constitution Ave., NW, Washington, DC 20210.
Telephone (202) 693-2222. SUPPLEMENTARY INFORMATION: I. Table of Contents The
following is a table of contents for this preamble. The regulatory text and
appendices follow the preamble. Documents and testimony submitted to the
docket (Docket R-02) of this rulemaking are cited throughout this preamble by
the number that has been assigned to each such docket entry, preceded by the
abbreviation "Ex.," for exhibit. II.
The Occupational Safety and Health Act and the Functions of the Recordkeeping
System III.
Overview of the Former OSHA Recordkeeping System IV.
OSHA's Reasons for Revising the Recordkeeping Rule V.
The Present Rulemaking VI.
Legal Authority VII.
Summary and Explanation of the Final Rule A.
Subpart A. Purpose B.
Subpart B. Scope C.
Subpart C. Recordkeeping Forms and Recording Criteria D.
Subpart D. Other OSHA Injury and Illness Recordkeeping Requirements E.
Subpart E. Reporting Fatality, Injury and Illness Information to the
Government. F.
Subpart F. Transition From the Former Rule G.
Subpart G. Definitions VIII.
Forms A.
OSHA 300 B. OSHA 300 A C. OSHA 301 IX.
State Plans X.
Final Economic Analysis XI.
Regulatory Flexibility Certification XII.
Environmental Impact Assessment XIII.
Federalism XIV.
Paperwork Reduction Act of 1995 XV.
Authority Regulatory
Text of 29 CFR Part 1904 and 29 CFR Section 1952.4 II. The Occupational Safety and Health Act and the Functions of the
Recordkeeping System Statutory Background The
Occupational Safety and Health Act (the "OSH Act" or
"Act") requires the Secretary of Labor to adopt regulations
pertaining to two areas of recordkeeping. First, section 8(c)(2) of the Act
requires the Secretary to issue regulations requiring employers to
"maintain accurate records of, and to make periodic reports on,
work-related deaths, injuries and illnesses other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or transfer
to another job." Section 8(c)(1) of the Act also authorizes the
Secretary of Labor to develop regulations requiring employers to keep and
maintain records regarding the causes and prevention of occupational injuries
and illnesses. Section (2)(b)(12) of the Act states Congress' findings with
regard to achieving the goals of the Act and specifically notes that
appropriate reporting procedures will help achieve the objectives of the Act. Second,
section 24(a) of the Act requires the Secretary to develop and maintain an
effective program of collection, compilation, and analysis of occupational safety
and health statistics. This section also directs the Secretary to
"compile accurate statistics on work injuries and illnesses which shall
include all disabling, serious, or significant injuries and illnesses,
whether or not involving loss of time from work, other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or transfer
to another job." After
passage of the Act, OSHA issued the required occupational injury and illness
recording and reporting regulations as 29 CFR part 1904. Since 1971, OSHA and
the Bureau of Labor Statistics (BLS) have operated the injury and illness
recordkeeping system as a cooperative effort. Under a Memorandum of
Understanding dated July 11, 1990 (Ex. 6), BLS is now responsible for
conducting the nationwide statistical compilation of occupational illnesses
and injuries (called the Annual Survey of Occupational Injuries and
Illnesses), while OSHA administers the regulatory components of the
recordkeeping system. Functions of the Recordkeeping System This
revision of the Agency's recordkeeping rule is firmly rooted in the statutory
requirements of the OSH Act (see the Legal Authority section of the preamble,
below). OSHA's reasons for revising this regulation to better achieve the
goals of the Act are discussed in the following paragraphs. Occupational
injury and illness records have several distinct functions or uses. One use
is to provide information to employers whose employees are being injured or
made ill by hazards in their workplace. The information in OSHA records makes
employers more aware of the kinds of injuries and illnesses occurring in the
workplace and the hazards that cause or contribute to them. When employers
analyze and review the information in their records, they can identify and
correct hazardous workplace conditions on their own. Injury and illness
records are also an essential tool to help employers manage their company
safety and health programs effectively. Employees
who have information about the occupational injuries and illnesses occurring
in their workplace are also better informed about the hazards they face. They
are therefore more likely to follow safe work practices and to report
workplace hazards to their employers. When employees are aware of workplace
hazards and participate in the identification and control of those hazards,
the overall level of safety and health in the workplace improves. The
records required by the recordkeeping rule are also an important source of
information for OSHA. During the initial stages of an inspection, an OSHA
representative reviews the injury and illness data for the establishment as
an aid to focusing the inspection effort on the safety and health hazards
suggested by the injury and illness records. OSHA also uses
establishment-specific injury and illness information to help target its
intervention efforts on the most dangerous worksites and the worst safety and
health hazards. Injury and illness statistics help OSHA identify the scope of
occupational safety and health problems and decide whether regulatory
intervention, compliance assistance, or other measures are warranted. Finally,
the injury and illness records required by the OSHA recordkeeping rule are
the source of the BLS-generated national statistics on workplace injuries and
illnesses, as well as on the source, nature, and type of these injuries and
illnesses. To obtain the data to develop national statistics, the BLS and
participating State agencies conduct an annual survey of employers in almost
all sectors of private industry. The BLS makes the aggregate survey results
available both for research purposes and for public information. The BLS has
published occupational safety and health statistics since 1971. These
statistics chart the magnitude and nature of the occupational injury and
illness problem across the country. Congress, OSHA, and safety and health
policy makers in Federal, State and local governments use the BLS statistics
to make decisions concerning safety and health legislation, programs, and
standards. Employers and employees use them to compare their own injury and
illness experience with the performance of other establishments within their
industry and in other industries. III. Overview of the Former OSHA Recordkeeping System The
OSH Act authorizes OSHA to require employers to keep records and to report
the recorded information to OSHA. However, the Agency only requires some
employers to create and maintain occupational injury and illness records.
Those employers who are required to keep records must report on those records
only when the government specifically asks for the information, which occurs
exclusively under limited circumstances that are described below. Employers
covered by the recordkeeping regulations must keep records of the
occupational injuries and illnesses that occur among their employees. To do
so, covered employers must complete two forms. First, the employer must
maintain a summary form (OSHA Form 200, commonly referred to as the
"OSHA Log," or an equivalent form) that lists each injury and
illness that occurred in each establishment during the year. For each case on
the Log, the employer also prepares a supplementary record (OSHA Form 101, or
an equivalent), that provides additional details about the injury or illness.
Most employers use a workers' compensation First Report of Injury in place of
the 101 form. The Log is available to employees, former employees, and their
representatives. A Summary of the Log is posted in the workplace from
February 1 to March 1 of the year following the year to which the records
pertain. The Log and summary, as well as the more detailed supplementary
record, are available to OSHA inspectors who visit the establishment. The
employer is only obligated to record work-related injuries and illnesses that
meet one or more of certain recording criteria. In accordance with the OSH
Act, OSHA does not require employers to record cases that only involve
"minor" injuries or illnesses, i.e., do not involve death,
loss of consciousness, days away from work, restriction of work or motion,
transfer to another job, medical treatment other than first aid, or diagnosis
of a significant injury or illness by a physician or other licensed health
care professional. The
language of the OSH Act also limits the recording requirements to injuries or
illnesses that are "work-related." The Act uses, but does not
define, this term. OSHA has interpreted the Act to mean that injuries and
illnesses are work-related if events or exposures at work either caused or
contributed to the problem. Work-related injuries or illnesses may (1) occur
at the employer's premises, or (2) occur off the employer's premises when the
employee was engaged in a work activity or was present as a condition of
employment. Certain limited exceptions to this overriding geographic
presumption were permitted by the former rule. Although
the Act gives OSHA the authority to require all employers covered by the OSH
Act to keep records, two major classes of employers are not currently
required regularly to keep records of the injuries and illnesses of their
employees: employers with no more than 10 employees at any time during the
previous calendar year, and employers in certain industries in the retail and
service sectors. Although
the Act authorizes OSHA to require employers to submit reports on any or all
injuries and illnesses occurring to their employees, there are currently only
three situations where OSHA requires an employer to report occupational
injury and illness records to the government. First, an employer must report
to OSHA within eight hours any case involving a work-related fatality or the
in-patient hospitalization of three or more employees as the result of a
work-related incident (former 29 CFR 1904.8, final rule 1904.39). These
provisions were revised in 1994 to reduce the reporting time for these
incidents from 48 hours to 8 hours and reduce the number of hospitalized
employees triggering a report from five workers to three workers (59 FR 15594
(April 1, 1994)). Changes made to this section in 1994 have largely been
carried forward in the final rule being published today. Second,
an employer who receives an annual survey form from the Bureau of Labor
Statistics must submit its annual injury and illness data to the BLS. The BLS
conducts an annual survey of occupational injuries and illnesses under 29 CFR
1904.20-22 of the former rule (1904.41 of the final rule). Using a stratified
sample, the BLS sends survey forms to randomly selected employers, including
employers who, under Part 1904, would otherwise be exempt from the duty to
keep the OSHA Log and Summary. These otherwise exempt employers are required
to keep an annual record of the injuries and illnesses occurring among their
employees that are recordable under Part 1904 if the BLS contacts them as
part of the annual survey. At the end of the year, these employers must send
the results of recordkeeping to the BLS. The BLS then tabulates the data and
uses them to prepare national statistics on occupational injuries and
illnesses. The BLS survey thus ensures that the injury and illness experience
of employers otherwise exempted from the requirement to keep OSHA records --
such as employers with 10 or fewer employees in the previous year and
employers in certain Standard Industrial Classification (SIC) codes -- is
reflected in the national statistics. In accordance with its statistical
confidentiality policy, the BLS does not make public the identities of
individual employers. Finally,
OSHA may require employers to send occupational injury and illness data
directly to OSHA under a regulation issued in 1997. That section of this
regulation is entitled Annual OSHA Injury and Illness Survey of Ten or More
Employers. It allows OSHA or the National Institute for Occupational Safety
and Health (NIOSH) to collect data directly from employers. This section was
published in the Federal Register on February 11, 1997 (62 FR 6434)
and became effective on March 13, 1997. It has been included in this final
rule as section 1904.41 without substantive change; however, this section has
been rewritten in plain language for consistency with the remainder of Part
1904. IV. OSHA's Reasons for Revising the Recordkeeping Rule OSHA
had several interrelated reasons for revising its recordkeeping rule. The
overarching goal of this rulemaking has been to improve the quality of
workplace injury and illness records. The records have several important
purposes, and higher quality records will better serve those purposes. OSHA
also believes that an improved recordkeeping system will raise employer
awareness of workplace hazards and help employers and employees use and
analyze these records more effectively. In revising its recordkeeping rule,
the Agency also hopes to reduce underreporting and to remove obstacles to
complete and accurate reporting by employers and employees. A
major goal of the revision has been to make the system simpler and easier to
use and understand and to update the data on which the system is based. For
example, OSHA has updated the list of partially exempt industries to reflect
the most recent data available. The revisions to the final rule will also
create more consistent statistics from employer to employer. Further, by
providing more details about the system in the regulation itself and writing
the rule in plain language, fewer unintentional errors will be made and the
records will be more consistent. More consistent records will improve the
quality of analyses comparing the injury and illness experience of establishments
and companies with industry and national averages and of analyses looking for
trends over several years. Another
objective of the rulemaking has been to lessen the recordkeeping burden on
employers, reduce unnecessary paperwork, and enhance the cost-effectiveness
of the rule. The final rule achieves this objective in several ways. It
updates the partially exempt industry list, reduces the requirement to keep
track of lengthy employee absences and work restrictions caused by work-
related injuries and illnesses and, above all, greatly simplifies the forms,
regulatory requirements, and instructions to make the system easier for
employers and employees to manage and use. In
this rulemaking, OSHA has also addressed some of the objections employers
have raised in the years since OSHA first implemented the injury and illness
recordkeeping system. For example, the final rule includes a number of
changes that will allow employers to exclude certain cases, eliminate the
recording of minor illness cases, and allow employers maximum flexibility to
use computer equipment to meet their OSHA recordkeeping obligations. OSHA
is also complying with the President's Executive Memorandum on plain language
(issued June 1, 1998) by writing the rule's requirements in plain language
and using the question-and-answer format to speak directly to the user. OSHA
believes that employers, employees and others who compile and maintain OSHA
records will find that the plain language of the final rule helps compliance
and understanding. Many
of OSHA's goals and objectives in developing this final rule work together
and reinforce each other. For example, writing the regulation in plain
language makes the rule easier for employers and employees to use and
improves the quality of the records by reducing the number of errors caused
by ambiguity. In some cases, however, one objective had to be balanced
against another. For example, the enhanced certification requirements in the
final rule will improve the quality of the records, but they also slightly
increase employer burden. Nevertheless, OSHA is confident that the final rule
generally achieves the Agency's goals and objectives for this rulemaking and
will result in a substantially strengthened and simplified recordkeeping and
reporting system. The Need To Improve the Quality of the Records The
quality of the records OSHA requires employers to keep is of crucial
importance for anyone who uses the resulting data. Problems with
completeness, accuracy, or consistency can compromise the data and reduce the
quality of the decisions made on the basis of those data. Several government
studies, as well as OSHA's own enforcement history, have revealed problems
with employers' injury and illness recordkeeping practices and with the
validity of the data based on those records. A
study conducted by the National Institute for Occupational Safety and Health
(NIOSH) between 1981 and 1983 revealed that 25 percent of the 4,185 employers
surveyed did not keep OSHA injury and illness records at all, although they were
required by regulation to do so (Ex. 15:407-P). A
study of 192 employers in Massachusetts and Missouri conducted by the BLS in
1987 reported that an estimated 10 percent of covered employers did not
maintain OSHA records at all, total injuries were underrecorded by
approximately 10 percent (even though both overrecording and underrecording
were discovered), lost workday injuries were undercounted by 25 percent, and
lost workdays were undercounted by nearly 25 percent. Approximately half of
the uncounted lost workdays were days of restricted work activity, and the
other half were days away from work. Some of the underrecording was due to
employers entering lost time cases on their records as no-lost-time cases
(Exs. 72-1, 72-2). Through
its inspections of workplaces, OSHA has also discovered that some employers
seriously underrecord injuries and illnesses. In cases where the inspector
has found evidence that the employer willfully understated the
establishment's injury and illness experience, OSHA has levied large
penalties and fines under its special citation policy for egregious
violations. OSHA has issued 48 egregious injury and illness recordkeeping
citations since 1986 (Ex. 74). As
part of the OSHA Data Initiative (ODI), a survey allowing OSHA to collect
injury and illness data from employers to direct OSHA's program activities,
the Agency conducts Part 1904 records audits of 250 establishments each year.
The following table shows the results of the audits conducted to date.
* The results were
tabulated using unweighted data and should not be used to draw broad
conclusions about the recordkeeping universe. Explicit Rules Are Needed To Ensure Consistent Recording When
OSHA's recordkeeping regulation was first promulgated in 1971, many industry
safety experts were concerned that the regulations and the instructions on
the forms did not provide adequate guidance for employers. They requested
that the Department of Labor provide additional instructions on employers'
recordkeeping obligations and clarify several recordkeeping issues. The BLS
responded in 1972 by publishing supplemental instructions to the
recordkeeping forms, BLS Report 412, What Every Employer Needs To Know About
OSHA Recordkeeping (Ex. 1). These supplemental instructions were designed to
help employers by providing detailed information on when and how to record
injury and illness cases on the recordkeeping forms. The supplemental
instructions clarified numerous aspects of the rule, including the important
recordability criteria that outline which injuries and illnesses are
work-related and thus recordable. This BLS Report was revised and reissued in
1973, 1975, and 1978. In
response to requests from labor and industry, and after publication in the Federal
Register and a public comment period, the BLS 412 report series was
replaced in April of 1986 by the Recordkeeping Guidelines For Occupational
Injuries And Illnesses (the Guidelines) (Ex. 2). The Guidelines
contained an expanded question-and-answer format similar to that of the BLS
412 report and provided additional information on the legal basis for the
requirements for recordkeeping under Part 1904. The Guidelines
provided clearer definitions of the types of cases to be recorded and
discussed employer recordkeeping obligations in greater detail. The Guidelines
also introduced a number of exceptions to the general geographic presumption
that injuries and illnesses that occurred "on-premises" were
work-related to cover situations where the application of the geographic
presumption was considered inappropriate. Further, the Guidelines
updated the lists that distinguished medical treatment from first aid and
addressed new recordkeeping issues. The BLS also published a shortened version
of the Guidelines, entitled A Brief Guide to Recordkeeping
Requirements for Occupational Injuries and Illnesses (Ex. 7). Although
the 1986 edition of the Guidelines clarified many aspects of the
recordkeeping regulation, concerns persisted about the quality and utility of
the injury and illness data. In response to inquiries from employers, unions,
employees, BLS, and OSHA staff, the Agency issued many letters of
interpretation. These letters restated the former rule's regulatory
requirements, interpreted the rules as they applied to specific injury and
illness cases, and clarified the application of those requirements. A number
of these letters of interpretation have been compiled and entered into the
docket of this rulemaking (Ex. 70). OSHA has incorporated many of the prior
interpretations directly into the implementation questions and answers in the
regulatory text of the final rule, so that all affected employers will be
aware of these provisions. External Critiques of the Former Recordkeeping System Because
of concern about the injury and illness records and the statistics derived
from them, several organizations outside OSHA have studied the recordkeeping
system. The National Research Council (NRC), the Keystone Center, and the
General Accounting Office (GAO) each published reports that evaluated the
recordkeeping system and made recommendations for improvements. OSHA has
relied on these studies extensively in developing this final rule. The
NRC Report In
response to concern over the underreporting of occupational injuries and
illnesses and inconsistencies in the national data collected by the BLS,
Congress appropriated funds in 1984 for the BLS to conduct a quality
assurance study of its Annual Survey of Occupational Injuries and Illnesses.
The BLS asked the National Research Council (NRC) to convene an expert panel
to analyze the validity of employer records and the BLS annual survey, to
address any problems related to determining and reporting occupational
diseases, and to consider other issues related to the collection and use of
data on health and safety in the workplace. In
1987, NRC issued its report, Counting Injuries and Illnesses in the
Workplace: Proposals for a Better System (Ex. 4). The report contained 24
specific recommendations (Ex. 4, Ch. 8). In sum, the NRC panel recommended
that BLS take the following steps to improve the recordkeeping system: (1)
Modify the BLS Annual Survey to provide more information about the injuries
and illnesses recorded; (2) discontinue the Supplementary Data System,
replace it with a grant program for States and individual researchers, and
develop criteria for the detail and quality of the data collected by the
replacement system; (3) conduct an ongoing quality assurance program for the
Annual Survey to identify underreporting by comparing the information on
employers' logs with data from independent sources; (4) implement a system of
surveillance for occupational disease, including the collection of data on
exposure to workplace hazards; (5) improve the collection of national
occupational fatality data; (6) implement an administrative data system that
would allow OSHA to obtain individual establishment data to conduct an
"effective program for the prevention of workplace injuries and
illnesses * * *"; and (7) thoroughly evaluate recordkeeping practices in
individual establishments, using additional resources requested from Congress
for that purpose to avoid diverting resources from OSHA inspections of
workplace hazards (Ex. 4, p. 10). The
Keystone Report In
1987, The Keystone Center convened 46 representatives from labor unions,
corporations, the health professions, government agencies, Congressional
staff, and academia for a year-long dialogue to discuss occupational injury
and illness recordkeeping. Two years later, Keystone issued its final report,
Keystone National Policy Dialogue on Work-related Illness and Injury
Recordkeeping, 1989 (Ex. 5). The report focused on four major topics: (1)
Recordkeeping criteria; (2) OSHA enforcement procedures; (3) injury and illness
data systems; and (4) occupational illnesses. The Keystone report recommended
that: (1) OSHA and the BLS should revise various aspects of the recording
criteria; (2) OSHA should use injury and illness data to target enforcement
efforts; (3) the BLS should revise the Guidelines to make them easily
and uniformly understood; (4) the BLS should develop a national system to
collect and disseminate occupational injury and illness information; and (5)
OSHA and the BLS should broaden the type of information collected concerning
occupational illness and make the information available to employees and
government agencies for appropriate purposes such as research and study. The
General Accounting Office (GAO) Study An
August 1990 report by the GAO, Options for Improving Safety and Health in the
Workplace (Ex. 3), discussed the importance of employer injury and illness
records. The GAO noted that these records have several major uses. They help
employers, employees and others understand the nature and extent of occupational
safety and health problems. They help employers and employees identify safety
and health problems in their workplaces so that they can correct the
problems. They also enable OSHA to conduct research, evaluate programs,
allocate resources, and set and enforce standards. The report focused on the
use of the records in OSHA enforcement, particularly in targeting industries
and worksites for inspections and determining the scope of inspections. The
GAO report found that there was "possibly significant injury and illness
underrecording and subsequent underreporting" (Ex. 3, p. 3). The GAO
report gave three main reasons for inaccurate recording and reporting: (1)
Employers intentionally underrecord injuries and illnesses in response to
OSHA inspection policies or management safety competitions; (2) employers
unintentionally underrecord injuries and illnesses because they do not
understand the recording and reporting system; and (3) employers record
injuries and illnesses inaccurately because they do not place a high priority
on recordkeeping and do not supervise their recordkeepers properly. The GAO
report noted that OSHA's revised enforcement procedures, which included
increasing its fines for recordkeeping violations and modifying its
records-review procedures, would likely help to improve the accuracy of
recordkeeping. The GAO recommended that the Department of Labor study the
accuracy of employers' records using independent data sources, evaluate how
well employers understand the revised Guidelines, and audit employers'
records in selected enforcement activities. OSHA's
Strategy for Improving the Quality of Records OSHA
has developed a four-part strategy to improve the quality of the injury and
illness records maintained by employers. The first component is to provide
information, outreach and training to employers to make them more aware of
the recordkeeping requirements, thereby improving their compliance with these
requirements. For example, information on injury and illness recordkeeping is
included in many of OSHA's publications and pamphlets, on the OSHA CD-ROM,
and on OSHA's Internet site. OSHA personnel answer thousands of recordkeeping
questions each year in response to phone calls and letters. OSHA also trains
employers at the OSHA Training Institute in recordkeeping procedures and
provides speakers on this topic for numerous safety and health events. The
second component is improved enforcement of the recordkeeping requirements.
OSHA continues to review employer records during many of its workplace
inspections. OSHA also audits the records of some employers who submit data
to OSHA under former section 1904.17 (recodified as section 1904.41 Requests
from OSHA for Data in the final rule). Although OSHA does not issue citations
for minor reporting and recording violations, the Agency does cite and fine
employers when it encounters serious or willful injury and illness
recordkeeping problems. The
third component of OSHA's overall plan is this revision of the injury and
illness recordkeeping rule. The revised final rule will streamline the
recordkeeping system by simplifying the forms and the logic used to record an
individual case. It will also consolidate the instructions that were formerly
contained in the rule itself, in the Guidelines, and in many
interpretative letters and memoranda. In addition, the final rule will
improve the quality of the injury and illness records by changing several
requirements to ensure that data are entered correctly. OSHA has simplified
and streamlined the recordkeeping forms and processes to reduce errors. Other
changes include: (1) Simplifying and clarifying the definitions of terms such
as "medical treatment," "first aid," and "restricted
work" to reduce recording errors; (2) providing specific recordkeeping
guidance for specific types of injuries and illnesses; (3) including a
detailed discussion of the process of determining whether an injury or
illness is work-related; (4) giving employees greater involvement by
improving their access to records and providing a longer posting period for
the annual summary; (5) requiring higher level management officials to
certify the records; (6) adding a falsification/penalty statement to the
Summary; (7) adding a disclaimer to the Log to clarify that an employer who
records an injury or illness is not admitting fault, negligence or liability
for workers' compensation or insurance purposes; and (8) requiring the
employer to establish a process for employees to report injuries and
illnesses and to tell employees about it, and explicitly prohibiting the
employer from discriminating against employees who report injuries and
illnesses. V. The Present Rulemaking In
1995, the Keystone Center reassembled a group of business, labor, and
government representatives to discuss draft proposed changes to the
recordkeeping rule. OSHA shared its draft proposed revision of the rule with
the participants and the public. The draft was also reprinted in several
national safety and health publications. Written comments generated by the
on-going dialogue were used to help develop the proposal and the final rule,
and they are in the rulemaking record (Ex. 12). OSHA
consulted with the Advisory Committee on Construction Safety and Health
(ACCSH) before issuing the proposed rule. ACCSH made specific recommendations
to OSHA for improving the recordkeeping system as it applied to the
construction industry. OSHA gave the ACCSH recommendations careful
consideration and responded by modifying the proposal in several areas. The
ACCSH recommendations, OSHA's written briefing, and the relevant portions of
the transcripts of the October and December 1994 ACCSH meetings are also part
of the public record (Ex. 10). OSHA
published a Notice of Proposed Rulemaking (NPRM) on February 2, 1996 (61 FR
23), giving formal notice that the Agency proposed to revise the injury and
illness recording and reporting regulations, forms, and supplemental
instructions (Ex. 14). The proposed rule reflected a number of suggestions
made by the Keystone participants and ACCSH. The
NPRM invited all interested parties to submit comments on the proposal to the
docket by May 2, 1996. In response to requests from members of the public,
OSHA held two public meetings during the comment period and extended the
comment period to July 1, 1996. OSHA
received 449 written comments in response to the NPRM and compiled 1200 pages
of transcripts from 60 presentations made at the public meeting. Comments and
testimony were received from a broad range of interested parties, including
corporations, small business entities, trade associations, unions, state and
local governments, professional associations, citizens groups, and safety and
health organizations. OSHA has carefully reviewed all of the comments and
testimony in its preparation of the final rule. As
described in greater detail below, the final rule revises OSHA's regulation
for the recording and reporting of work-related deaths, injuries and
illnesses. The rule is part of a comprehensive revision of the OSHA injury
and illness recordkeeping system. The
final rule becomes effective, on January 1, 2002. At that time, the following
recordkeeping actions will occur: (1)
29 CFR Part 1904, entitled Recording and Reporting Occupational Injuries and
Illnesses, will be in effect. (2)
The State plan provisions in 29 CFR Part 1952, Section 1952.4, entitled
Injury and Illness Recording and Reporting Requirements will be in effect. (3)
Three new recordkeeping forms will come into use: (A)
OSHA Form 300, OSHA Injury and Illness Log, and OSHA Form 300 A Summary,
which will replace the former OSHA Form 200, Log and Summary of Occupational
Injuries and Illnesses; and (B)
OSHA Form 301, OSHA Injury and Illness Incident Record, which will replace
the former OSHA Form 101, Supplementary Record of Occupational Injuries and
Illnesses. (4)
The following BLS/OSHA publications will be withdrawn: (A)
Recordkeeping Guidelines for Occupational Injuries and Illnesses, 1986; and (B)
A Brief Guide to Recordkeeping Requirements for Occupational Injuries and
Illnesses, 1986. (5)
All letters of interpretation regarding the former rule's injury and illness
recordkeeping requirements will be withdrawn and removed from the OSHA CD-ROM
and the OSHA Internet site. Provisions Not Carried Forward From the Proposal Two
proposed regulatory sections in OSHA's 1996 Notice of Proposed Rulemaking
(NPRM) have not been carried forward in this rulemaking. They are: (1)
Falsification of, or failure to keep records or provide reports (Proposed
section 1904.16), and (2) Subcontractor records for major construction projects
(Proposed section 1904.17). Paragraphs
(a) and (b) of proposed section 1904.16, "Falsification of, or failure
to keep records or provide reports," were included in the proposal
because they had been included in the former rule. The proposed section included
a provision stating that employers may be subject to criminal fines under
section 17(g) of the Act for falsifying injury and illness logs and may be
cited and fined under sections 9, 10, and 17 of the Act for failure to comply
with the recordkeeping rule. Several commenters favored retention of this
proposed provision in the final rule because, in their view, OSHA needs
strong enforcement of the recordkeeping rule to make sure that employers keep
accurate records (see, e.g., Exs. 15: 11, 289). Others, however,
objected to the proposed provision (see, e.g., Exs. 15: 22, 335, 375).
The views of this latter group were reflected in a comment from the American
Petroleum Institute (Ex. 15: 375), which urged OSHA to delete this section
from the rule in its entirety because nothing like it is found in any other
OSHA regulation or standard. In the final rule, OSHA has decided that this
section is not needed to enforce the final rule, and when need be, to issue
citations and levy penalties. The
Keystone report recommended, and OSHA proposed, to require construction
employers to maintain "site logs," or comprehensive injury and
illness records, for major construction projects. The Keystone report noted
that construction sites are normally composed of multiple contractors and
subcontractors, each of whom may be present at the site for a relatively
short period of time, and that no records of the safety and health experience
of the site are readily available, either to OSHA or to employers and
employees. In
an attempt to address this problem, the proposed provision would have
required site-controlling employers in the construction industry to maintain
a separate record reflecting the overall injury and illness experience of
employees working for sub-contract construction firms for any construction
site having an initial construction contract value exceeding $1,000,000. The
site-controlling employer would thus have been required to record the
injuries and illnesses of subcontractor employees who were employed by construction
employers with 11 or more employees working at the site at any time during
the previous calendar year. Many
commenters strongly favored the addition of a construction site log provision
to the final rule (see, e.g., Exs. 20; 29; 35; 36; 45; 15: 48, 110,
113, 129, 136, 137, 141, 181, 224, 266, 278, 310, 350, 359, 369, 375, 394,
407, 413, 415, 418, 425, 438, 440). Several of these commenters urged OSHA to
expand this "multi-employer" log concept to employers in other
industries (see, e.g., Exs. 35; 15: 48, 113, 129, 369, 415, 418, 438).
For example, the AFL-CIO (Ex. 15: 418) encouraged OSHA to "[e]xpand this
recommendation to all industries. As the Agency is well aware, safety and
health problems related to multi-employer worksites and contract work are a
major concern in many industries beyond construction. Many of the major
chemical explosions and fatalities at steel mills, power plants and paper
mills have been related to contract work. With more and more businesses
contracting out services for on-site activities, the safety and health
concern associated with these practices is growing." Other
commenters argued that the proposed site log provisions should be expanded to
include injuries and illnesses to construction employees working for
employers who would otherwise be exempt from OSHA recordkeeping requirements
because they employ fewer than 11 workers (see, e.g., Exs. 20; 15:
350, 359, 369, 407, 425). Two of these commenters recommended adding a
requirement to the final rule requiring the site-controlling employer to
assist smaller employers with their records (Exs. 15: 350, 359). Several
commenters recommended adding provisions to the final rule that would provide
greater access to the construction site log by employees (see, e.g.,
Exs. 15: 129, 310, 394) and by other employers (see, e.g., Ex. 15:
310). Others recommended that OSHA include in the final rule a requirement
for the site-controlling employer to collect the number of hours worked by
each subcontractor to make it easier to calculate each subcontractor's injury
and illness rates (see, e.g., Exs. 15: 310, 369, 394), and some
commenters recommended that the final rule contain a requirement for
subcontractors to report work-related injuries and illnesses to the
site-controlling employer (see, e.g., Exs. 15: 359, 369, 440). The
Building and Construction Trades Department (BCTD), AFL-CIO discussed many of
these issues while commenting in favor of site logs: On
the project level, the fragmentation of employers on construction sites makes
it impossible to assess fully safety and health on a particular project.
Since the origins of OSHA, injury and illness recordkeeping has been the
responsibility of each individual employer. Nevertheless, the hazards of
construction activity are shared by employees across the site, and are not
specific to a single employer. Employees are often injured or made ill by
circumstances that are not under their own employer's full control. The
balkanization of recordkeeping contributes to the failure of full and
complete communication in construction. What
is needed, at a national and the project level, is a way to record and count
the injuries and illnesses that occur on specific projects. We need to know
about illnesses and injuries that are associated with distinct types of
construction activity, with the various phases of construction, and with the
methods, materials, and hazards that are common to those types of work.
Furthermore, we need to develop a measure of injury and illness that spans
employers, to get a picture of the aggregate outcomes affecting all actors on
a common site. Only with such a tool can the construction industry establish
and meet performance benchmarks for safety and health. Site
logs would be useful to all of the actors in the occupational safety and
health arena. First, employers would benefit from the collection of this
data. General contractors increasingly use safety and health information in
selecting their subcontractors, and in evaluating projects. Site logs will
give them a new tool for both self-evaluation and the evaluation of other
contractors. Similarly, subcontractors are often ignorant of the safety and
health performance of other contractors and the general contractor. Site logs
will lead to better information for all contractors on the project. Second,
employees will benefit from site logs. The site log will focus employers'
attentions upon the risks and hazards that are encountered across the
worksite. By concretely illustrating that hazards are everyone's problems,
the site log will prompt employers and employees to minimize those hazards
and to maximize site safety and health. Third,
owners will benefit from site logs. Today, many owners are selecting
contractors on the basis of the contractors' rates for lost work days and
total recordables. In many cases, these rates are a poor measure for the
owner's purpose. An owner's typical concern is with how well a general
contractor manages safety and health on the entire site, not with how many
injuries and illnesses occurred within that contractor's own workforce. Site
logs can be used to measure the management performance of the general
contractor, and will greatly assist the owners in their quest for
construction safety. Finally,
OSHA will find the site logs to be enormously useful in its efforts to become
a "data-driven" agency. First, a project-centric focus will allow
OSHA to focus its enforcement and consultation resources. Site logs will be
useful to OSHA in scheduling inspections during the phases of construction
which appear, through this data, to present the most risks, and in focusing
its inspections at construction sites, since the recent illness and injury
history of the entire site can be assayed by examining a single document. By
the same token, the information revealed by the logs will assist OSHA in
reaching out to employers to provide consultative services. Site specific
data will also aid OSHA in developing safety and health standards that are
appropriately tailored to the risks and hazards of specific types of
construction. The
BCTD is convinced that private actors will use site logs to improve safety
and health performance. If OSHA establishes a requirement that site logs be
kept, the private marketplace will use this new tool to the betterment of
employee safety and health (Ex. 15: 394). Other
commenters opposed the addition of a site log provision to the final rule
(see, e.g., Exs. 43; 51; 15: 9, 17, 21, 38, 40, 43, 61, 67, 74, 77,
97, 111, 116, 119, 121, 126, 151, 155, 163, 170, 194, 195, 204, 213, 235,
242, 256, 260, 262, 263, 265, 269, 270, 281, 294, 298, 304, 305, 312, 314,
341, 342, 351, 356, 364, 377, 389, 395, 397, 401, 406, 412, 423, 433, 437,
443, 441). The most common argument presented by these commenters was that
records should only be kept by the employer, and that one employer should not
keep records for another employer's employees (see, e.g., Exs. 15: 9,
116, 126, 163, 195, 204, 260, 262, 265, 281, 294, 304, 312, 314, 341, 342,
351, 364, 389, 395, 396, 397, 401, 406, 423, 433). The Jewell Coal and Coke
Company (Ex. 15: 281) stated that: [t]he
sub-contractor should be responsible for keeping up with their own employee
injury/illness records as they are the ultimate responsible party for their
own employees under worker's compensation regulations and in all other legal
issues. This proposal would appear to be trying to switch total
responsibility to the site controlling employer for that record keeping
purpose and taking the responsibility off the subcontractor with whom the
responsibility should lie. It is, we feel, unfairly discriminatory against
the site-controlling employer in this case and we are strongly opposed to the
wording of this proposal. Even the alternative proposal in this section
places the ultimate responsibility upon the project owner for collection of
accident and illness information and send it to OSHA. Again we are strongly
opposed to the wording of this proposal because it takes the responsibility
for record keeping off the sub-contractor and places the ultimate
responsibility on the project owner, a responsibility that we feel belongs to
the sub-contractor irregardless of their size. Brown
& Root, Inc. (Ex. 15: 423) added "A site controlling employer cannot
be held responsible for determining which injuries and illnesses of a
subcontractor's employees are recordable. A contractor cannot become involved
in the medical records of employees who do not work for him or her. The
subcontractor employer has to be held accountable and responsible for his own
employees, this responsibility cannot be delegated to another contractor. The
number of employees or the value of the construction project is
irrelevant." Some
of the commenters who generally opposed this provision agreed that
site-specific data would be useful if it could be collected by a method that
allowed each employer to keep its own records (see, e.g., Exs. 15: 9,
116, 195, 260, 262, 265, 304, 364, 401). Other commenters pointed out that
there would be problems in getting accurate data from subcontractors (see, e.g.,
Exs. 15: 242, 263, 269, 270, 310, 314, 377, 395, 397, 406) or suggested that
the site-controlling employer should not be held responsible for the quality
of the records received from subcontractors (see, e.g., Exs. 33; 15:
176, 195, 231, 273, 294, 301, 305, 312, 351). The
Alabama Branch of the Associated General Contractors of America, Inc. (AGC)
cited difficulties associated with other regulatory requirements that could
result from the proposed OSHA site log requirement: This
could place an undue hardship on the site controlling employer far beyond his
ability to appoint and manage independent contractors and subcontractors
without there being other entangling both federal and state obligations,
which would lead to the subcontractor's employees being declared employees of
the controlling contractor. Many states use the common law to make a
determination of the employer/employee relationship, as well as the Internal
Revenue Service. This employee/employer relationship under the common law
usually says if a controlling contractor exercises any control as to time,
place, method or result of a person's work that they are in fact defacto
employees of the controlling contractor, for social security purposes and
other state purposes. Therefore, I think it is shallow thinking to believe
that the general contractor with 100 subcontractors should have all 5,500
employees under their control and avoid other legal entanglements, without
the ability to actually control the subcontractor. The
National Federation of Independent Business (NFIB) expressed concern about
the proposed site log provision as it would relate to OSHA's multi-employer
citation policy (Ex. 15: 304), and the Small Business Administration (Exs.
51: 67, 437) argued that the proposed requirement would require competing
employers to share sensitive business information. A
number of commenters objected to the requirement because of the additional
burden it would place on employers (see, e.g., Exs. 51; 15: 40, 43,
67, 77, 97, 119, 121, 163, 194, 204, 235, 242, 256, 263, 269, 270, 294, 298,
304, 312, 314, 356, 377, 389, 395, 397, 406, 412, 437, 441), arguing that the
proposed requirement would result in duplication (see, e.g., Exs. 51;
15: 9, 38, 67, 77, 119, 155, 204, 304, 312, 351, 356, 364, 377, 395, 397,
437). For example, the American Iron and Steel Institute (Ex. 15: 395) stated
that the proposed requirement would place a "near impossible burden on
the 'site controlling employer' " to determine the size of each
subcontractor to decide which subcontractors would be required to keep records. A
number of commenters also questioned the value of the statistical data that
would be produced by a site log requirement (see, e.g., Exs. 51; 15:
61, 62, 67, 74, 77, 97, 121, 151, 194, 312, 314, 351, 389, 395, 433, 437,
433), and several participants were concerned that the records would not be
useful for accident prevention purposes (see, e.g., Exs. 15: 121, 151,
312, 351, 389, 433) . OSHA
received many comments addressing miscellaneous points related to the
proposed construction site log requirement. For example, some commenters
suggested limiting the scope of the project records required to be maintained
(see, e.g., Exs. 15: 17, 21, 111, 116, 213, 155), while others argued
that the proposed dollar threshold ($1 million) for a covered construction
project was too low and should be raised (see, e.g., Exs. 15: 17, 111,
116, 441). Others suggested that the site log requirement should be triggered
by the time duration of the project (Ex. 15: 116); the number of construction
workers at the site (Ex. 15: 111); or include only construction employers
with more than 11 employees (see, e.g., Exs. 15: 170, 213, 405). Some
commenters urged the Agency not to expand the site log concept beyond the
construction industry (see, e.g., Exs. 33; 15: 176, 231, 273, 301, 397).
Finally, several commenters urged OSHA to make any site log provision in the
final rule compatible with the corresponding provisions of the Process Safety
Management Standard (29 CFR 1910.119), especially if the site log requirement
in the recordkeeping rule was expanded beyond construction (see, e.g.,
Exs. 33; 15: 159, 176, 231, 273, 301, 335). Based
on a thorough review of the comments received, OSHA has decided not to
include provisions in the final that require the site-controlling employer to
keep a site log for all recordable injuries and illnesses occurring among
employees on the site. OSHA has made this decision for several reasons.
First, such a provision would not truly capture the site's injury and illness
experience because many subcontractors employ 10 or fewer employees and are
therefore exempt from keeping an OSHA Log. To require these very small
employers to keep records under Part 1904 for the periods of time they worked
on a construction site meeting the dollar threshold for this provision would
be a new recordkeeping burden. This would create considerable complexity for
these employers and for the site-controlling employer. Second, under the Data
Initiative (section 1904.41 of the final rule), OSHA now has a means of
targeting data requests for records of the safety and health experience of
categories of employers and can therefore obtain the data it needs to
establish inspection priorities in a less administratively complex and less
burdensome way when the Agency needs such data. Third, OSHA was concerned
with the utility of the data that would have been collected under the
proposed site log approach, because of the time lag between collection of the
data and its use in selecting employers for inspections or other
interventions. In many cases work at the site would be complete before the
data was collected and analyzed. Finally, a site log requirement is not
necessary to enable general contractors to compare the safety records of
potential subcontractors since they can require such information as a
condition of their contractual arrangements without OSHA requirements. For
these reasons, the final rule does not contain a site log provision. The Use of Alternative Data Sources Several
commenters suggested that the Agency use data from existing data sources,
such as state workers' compensation agencies, insurance companies, hospitals,
or OSHA inspection files, instead of requiring separate data for OSHA
recordkeeping purposes (see, e.g., Exs. 15: 2, 28, 58, 63, 97, 184,
195, 289, 327, 341, 374, 444). For example, Alex F. Gimble observed: Since
similar data are readily available from other sources, such as the National
Safety Council, insurance carriers, etc., why not use these statistics,
rather than go through this duplication of effort at taxpayer expense?
Another approach would be to utilize data collected by OSHA and State Plan
compliance officers during site visits over the past 25 years (Ex. 15: 28). Several
commenters suggested that OSHA use injury and illness data from the workers'
compensation systems in lieu of employer records. The comments of the
American Health Care Association (AHCA) are representative of the views of
these commenters: AHCA
encourages OSHA to consider the use of workers' compensation data in lieu of
proposed OSHA 300 and 301 forms. Pursuing the enactment of legislation that
would allow OSHA access to every state's workers' compensation data would
eliminate the need for employers to maintain two sets of records, provide
OSHA with necessary safety and health data, and ease administrative and cost
burdens now associated with recordkeeping for employers in every industry
across the country (Ex. 15: 341). Ms.
Diantha M. Goo recommended the use of injury and illness data obtained from
treatment facilities rather than the OSHA records: The
accuracy and usefulness of OSHA's reporting system would be vastly improved
if it were to shift responsibility from employers (who have a vested interest
in concealment) to the emergency rooms of hospitals and clinics. Hospitals
are accustomed to reporting requirements, use the correct terminology in
describing the accident and its subsequent treatment and are computerized
(Ex. 15: 327). In
response to these comments, OSHA notes that the injury and illness
information compiled pursuant to Part 1904 is much more reliable, consistent
and comprehensive than data from any available alternative data source,
including those recommended by commenters. This is the case because, although
some State workers' compensation programs voluntarily provide injury and
illness data to OSHA for various purposes, others do not. Further, workers'
compensation data vary widely from state to state. Differing state workers'
compensation laws and administrative systems have resulted in large
variations in the content, format, accessibility, and computerization of that
system's data. In addition, workers' compensation databases often do not
include injury and illness data from employers who elect to self-insure. Additionally,
most workers' compensation databases do not include information on the number
of workers employed or the number of hours worked by employees, which means
that injury and illness incidence rates cannot be computed from the data.
Workers' compensation data are also based on insurance accounts (i.e., filed
claims), and not on the safety and health experience of individual
workplaces. As a result, an individual account often reflects the experience
of several corporate workplaces involved in differing business activities.
Finally, as discussed below in the Legal Authority section of the preamble,
the OSH Act specifically sets out the recordability criteria that must be
included in the OSHA recordkeeping system envisioned by the Congress when the
Act was passed. The Congress intended that all non-minor work-related
injuries and illnesses be captured by the OSHA recordkeeping system, both so
that individual establishments could evaluate their injury and illness
experience and so that national statistics accurately reflecting the
magnitude of the problem of occupational injury and illness would be
available. Although
OSHA disagrees that any of the alternate sources of data are satisfactory
substitutes for the information gathered under Part 1904, the Agency
recognizes that data from these sources have value. To the extent that
information from workers' compensation programs, the BLS statistics,
insurance companies, trade associations, etc., are available and appropriate
for OSHA's purposes, OSHA intends to continue to use them to supplement its
own data systems and to assess the quality of its own data. However,
consistent with the Congressional mandate of the OSH Act, OSHA must continue
to maintain its own recordkeeping system and to gather data for this system
through recording and reporting requirements applicable to covered employers. Section 1952.4 Injury and Illness Recording and Reporting Requirements The
requirements of 29 CFR 1952.4 describe the duties of State-Plan states to
implement the 29 CFR 1904 regulations. These requirements are discussed in
Section IX of the preamble, State Plans, and in the preamble discussion for
section 1904.37, State recordkeeping regulations. General Issues Raised by Commenters In
addition to the issues discussed above, three issues concerning recordkeeping
warrant discussion: analysis of the data, training and qualifications of
recordkeepers, and recordkeeping software. Analysis
of the Data During
OSHA's public meetings, Eric Frumin of the Union of Needletrades, Industrial
and Textile Employees, AFL-CIO (UNITE) urged OSHA to include a requirement
for employers to analyze the OSHA 1904 data in depth to discover patterns and
trends of occupational injury and illness, stating that: [y]ou're
telling the employers to evaluate information that's coming to them, and I
say that to stress the point that's a very logical, common sense requirement
and you're not generally speaking asking them to do that once they compile a
log. You stop short of asking employers to evaluate the log in toto, to look
for the kinds of trends and comparisons and so forth that we've been
discussing here. I think it's important for OSHA to consider some -- making
such a requirement, particularly in light of a fairly consistent pattern of
testimony in this proceeding, wherein employers now do not analyze what's on the
log in much depth. * * * But what has emerged at the end of the day is not a
whole lot of use of the information on the log for -- in terms of analyzing
it for trends and various associations or conclusions about how to protect
people, how to stop the injuries and illness (Ex. 58X, pp. 372 -- 375). In
the final rule, OSHA has not included any requirement for employers to
analyze the data to identify patterns or trends of occupational injury and
illness. OSHA agrees with Mr. Frumin that analysis of the data is a logical
outgrowth of maintaining records. Employers and employees can use such
analyses to identify patterns and trends in occupational injuries and
illnesses, and use that information to correct safety and health problems in
the workplace. OSHA encourages both employers and employees to use the data
for these purposes. However, a requirement of this type would go beyond the
scope of the recording and reporting rule, which simply requires employers to
keep records of work-related injuries and illnesses, and report the data
under certain circumstances. OSHA believes that requirements of this type are
better addressed through an OSHA standard, rather than the 1904 recordkeeping
regulation. Training
of Recordkeepers The
American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) suggested that OSHA add requirements for the training of the
individual who maintains the 1904 records for the employer, stating that: [a]nother
important issue relates to the qualifications and responsibilities of the
individual filling out the 300 log and Form 301. Most workplaces generally
have a non-safety and health professional entering this information in the
300 log after the decision of a recordable injury or illness has been made.
In our view it is important that these individuals have proper training about
the recordkeeping rule and the employer's recordkeeping system. In order to
assure the most accurate and complete recording of work-related injuries and
illnesses, we encourage the Agency to consider developing guidelines for the
qualifications and training of these individuals (Ex. 15: 418). OSHA
has not included a training requirement for the person entering the
information on the Part 1904 records in this final rule. The Agency believes
that the Section 1904.32 provisions of the final rule calling for annual
review of the records and certification of the annual summary by a company
executive will ensure that employers assign qualified personnel to maintain
the records and to see that they are trained in that task. Further, because
OSHA did not include training requirements in its 1996 proposal, the Agency
has not gathered sufficient information in the rulemaking docket about
whether specific training provisions would have utility, as well as the appropriate
qualifications and training levels that would assist in writing such
provisions at this time. As
part of its outreach and training program accompanying this rule, OSHA will
be providing speeches and seminars for employers to help them train their
recordkeeping staff. OSHA will also be producing materials employers can use
to help train their recordkeeping staff, including free software employers
can use to keep records, training programs, presentations, course outlines,
and a training video. All of these materials will be available through OSHA's
Internet home page at www.osha.gov. OSHA-Produced
Recordkeeping Software In
its proposal (61 FR 4048), OSHA asked the public to comment on whether or not
OSHA should develop computer software to make injury and illness
recordkeeping easier for employers, and discussed the features that would be
desirable for such software. Those features were: --
decision-making logic for determining if an injury or illness is recordable; --
automatic form(s) generation; --
the ability to assist the employer in evaluating the entered data through
several preset analytical tools (e.g., tables, charts, etc.); and --
computer based training tools to assist employers in training employees in
proper recordkeeping procedures. OSHA
also suggested that any such software should be in the public domain and/or
be available at cost to the public and asked the following questions: What
percentage of employers have computers to assist them in their business? What
percentage of employers currently use computers for tracking employee-related
information (payroll, timekeeping, etc.)? Should the distribution be through
the Government, public domain share-ware distribution, or other channels?
Should OSHA develop the software or only provide specifications for its
requirements? Several
commenters said that most business establishments had computers (see, e.g.,
Exs. 15: 9, 95, 163, 281, 288, 375). The American Health Care Association
(AHCA) estimated that 50% to 70% of their members used computers (Ex. 15:
341), and Raytheon Constructors, Inc. estimated that 60% of employers are
using computers. OSHA agrees that computers are available in most businesses,
although certainly not all of them. The agency also notes that these comments
were made in 1996, and that businesses' computer usage has grown since that
time. A
number of commenters urged OSHA to produce and distribute software to help
employers keep the Part 1904 records (see, e.g., Exs. 35; 36; 51; 15:
9, 26, 32, 34, 67, 68, 76, 87, 95, 105, 109, 111, 129, 154, 157, 170, 181,
182, 197, 225, 235, 239, 247, 272, 277, 281, 283, 288, 303, 313, 327, 341,
347, 350, 352, 353, 356, 394, 405, 406, 409, 418, 426, 437, 438). The
commenters gave various reasons for favoring the provision of OSHA-provided
software, including reducing the burden and cost of the rule for employers
(see, e.g., Exs. 15: 87, 95, 111, 170, 182, 197, 350), saving
businesses programming costs (Ex. 15: 277), helping small businesses (Ex. 51;
15: 67), resulting in more uniform data (see, e.g., Exs. 36; 15: 32,
153, 170, 181, 347, 409, 418), and facilitating analysis of the data (see, e.g.,
Exs. 35; 15: 153, 418). For example, the Ford Motor Company stated that
"Ford feels that the development of recordkeeping software by OSHA,
which will employ a decision-making logic, automatic form generation, the
ability to assist the employer in evaluating the entered data, and a tutorial
section to assist employers in training is necessary. This will enhance the
uniformity of data collection amongst all users, which is currently
lacking" (Ex. 15: 347). The Muscatine Iowa Chamber of Commerce Safety
Committee (Ex. 15: 87) added that: "[e]very
feature identified as a minimum requirement would be a great benefit to
employers attempting to comply with the OSHA recordkeeping requirements.
Prompts which would in any way aid in the determination of recordability
would be appreciated by any person without a great deal of experience in
filing OSHA reports. We feel these features are especially important now with
the changes in forms and information to be collected." Several
of the commenters who urged OSHA to provide computer software tempered their
support by asking that the use of such software should be optional and not
mandatory (see, e.g., Exs. 15: 60, 109, 154, 198, 225, 247, 272, 303,
394), and several other commenters recommended that OSHA provide both
software and specifications so employers could use the OSHA product to build
their own data systems (see, e.g., Exs. 15: 170, 247, 283). A
number of commenters told OSHA that the Agency should not produce software to
help employers with their 1904 recordkeeping obligations (see, e.g.,
Exs. 15: 78, 82, 85, 156, 163, 324, 348, 359, 363, 374, 375, 378, 402, 414).
Several of these commenters suggested OSHA produce software performance
specifications for the industry (see, e.g., Exs. 15: 156, 163, 357,
387). The commenters had various reasons for opposing the production of
software. Several stated that each employer wants different data in its own
unique form (see, e.g., Exs. 15: 78, 85, 375, 414). For example, the
Central Vermont Public Service Corporation (Ex. 15: 85) stated that
"[b]usinesses using safety related software use programs that can
perform OSHA recordkeeping and workers' compensation functions in one
package. It is unlikely that software developed by OSHA will perform workers'
compensation functions and therefore it will not be well received or utilized
by business." Other commenters stated that OSHA should focus elsewhere,
that the private sector could produce software more economically (see, e.g.,
Exs. 15: 357, 375, 387), and that OSHA software is not needed (see, e.g.,
Exs. 15: 363, 378). For example, the Synthetic Organic Chemical Manufacturers
Association, Inc. (SOCMA) stated that "[a]n outside organization with
software development expertise should develop the software. OSHA's limited
resources should go directly toward improving safety and health in the
workplace" (Ex. 15: 357). The Air Transport Association added:
"[m]ost major companies have developed their own software to support
required OSHA recordkeeping, and others have taken advantage of commercially
available programs. We see no need for OSHA to enter this market" (Ex.
15: 378). OSHA
has decided that the Agency will produce software for employers to use for
keeping their OSHA 1904 records. There is obviously a need for the Agency to
provide outreach and assistance materials for employers, particularly small
employers, to help them meet their obligations in the least burdensome way
possible, and software will clearly help achieve this goal. In addition,
computer software will improve the consistency of the records kept by
employers, and will assist them with analysis of the data. At this time, OSHA
has not developed the software or its specifications, but will make every
effort to produce and distribute software to assist employers by the time
this final rule becomes effective. Use of the OSHA produced software will be
optional; employers are not required to use this software and may keep
records using paper systems. Employers are also free to produce their own
software, or to purchase software. VI. Legal Authority A. The Final Recordkeeping Rule Is a Regulation Authorized by Sections
8 and 24 of the Act The
Occupational Safety and Health Act authorizes the Secretary to issue two
types of final rules, "standards" and "regulations."
Occupational safety and health standards, issued pursuant to section 6 of the
Act, specify the measures to be taken to remedy known occupational hazards.
29 U.S.C. 652(8), 655. Regulations, issued pursuant to general rulemaking
authority found, inter alia, in section 8 of the Act, are the means to
effectuate other statutory purposes, including the collection and dissemination
of records on occupational injuries and illnesses. 29 U.S.C. 657(c)(2). OSHA
is issuing this final recordkeeping rule as a regulation pursuant to the
authority expressly granted by sections 8 and 24 of the Occupational Safety
and Health Act, 29 U.S.C. 657, 673. Section 8 authorizes the Secretary to
issue regulations she determines to be necessary to carry out her statutory
functions, including regulations requiring employers to record and report
work-related deaths and non-minor injuries and illnesses.(1)
Section 8(c)(1) of the Act requires each employer to "make, keep and
preserve, and make available to the Secretary [of Labor] or the Secretary of
Health [and Human Services], such records regarding his activities relating to
this Act as the Secretary, in cooperation with the Secretary of Health and
Human Services, may prescribe by regulation as necessary or appropriate for
the enforcement of this Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses." Section
8(c)(2) further provides that the "Secretary, in cooperation with the
Secretary of Health and Human Services, shall prescribe regulations requiring
employers to maintain accurate records of, and to make periodic reports on,
work-related deaths, injuries and illnesses other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or transfer
to another job." Section 8(c)(3) empowers the Secretary to require
employers to "maintain accurate records of employee exposures to
potentially toxic materials or harmful physical agents which are required to
be monitored or measured under Section 6." Section
8(g)(1) authorizes the Secretary "to compile, analyze, and publish,
whether in summary or detailed form, all reports or information obtained
under this section." Section 8(g)(2) of the Act empowers the Secretary
"to prescribe such rules and regulations as he may deem necessary to carry
out his responsibilities under the Act." Section
24 contains a similar grant of regulatory authority. It requires the
Secretary to "develop and maintain an effective program of collection,
compilation, and analysis of occupational safety and health statistics * * *
The Secretary shall compile accurate statistics on work injuries and
illnesses which shall include all disabling, serious, or significant injuries
and illnesses, whether or not involving loss of time from work, other than
minor injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or motion, or
transfer to another job." Section 24 also empowers the Secretary to
"promote, encourage, or directly engage in programs of studies,
information and communication concerning occupational safety and health
statistics." Finally, Section 24 requires employers to "file such
reports with the Secretary as he shall prescribe by regulation, as necessary
to carry out his functions under this chapter." Section
20 of the Act, 29 U.S.C. 669, contains additional implicit authority for
collecting and disseminating data on occupational injuries and illnesses.
Section 20(a) empowers the Secretaries of Labor and Health and Human Services
to consult on research concerning occupational safety and health problems,
and provides for the use of such research, "and other information
available," in developing criteria on toxic materials and harmful
physical agents. Section 20(d) states that "[i]nformation obtained by
the Secretary and the Secretary of [HHS] under this section shall be
disseminated by the Secretary to employers and employees and organizations
thereof." Two
federal circuit Courts of Appeals have held that rules imposing recordkeeping
requirements are regulations and not standards, and are thus reviewable
initially in the district courts, rather than the Courts of Appeals. Louisiana
Chemical Assn. v. Bingham, 657 F.2d 777, 782-785 (5th Cir. 1981)
(OSHA rule on Access to Employee Exposure and Medical Records); Workplace
Health & Safety Council v. Reich, 56 F.3d 1465, 1467-1469
(D.C. Cir. 1995) (OSHA rule on Reporting of Fatality or Multiple
Hospitalization Incidents). These courts applied a functional test to
differentiate between standards and regulations: standards aim toward
correction of identified hazards, while regulations serve general enforcement
and detection purposes, including those outlined in section 8. E.g., Workplace
Health & Safety Council, 56 F.3d at 1468. See also United Steelworkers
of America v. Reich, 763 F.2d 728, 735 (3d Cir. 1985) (Hazard
Communication rule is a standard because it aims to ameliorate the
significant risk of inadequate communication about hazardous chemicals).
Clearly, the recordkeeping requirements in this final rule serve general
administrative functions: They are intended to "aid OSHA's effort to
identify the scope of occupational safety and health problems," to
"serve as the foundation for national statistics on the number and rate
of workplace injuries and illnesses" and "to raise employers"
awareness of the kinds of injuries and illnesses occurring in their
workplaces." See Functions of the Recordkeeping System, supra.
Therefore, the final rule falls squarely within the mandate of sections 8 and
24 of the Act and is properly characterized as a regulation. B. The Legal Standard: The Regulation Must Be Reasonably Related to
the Purposes of the Enabling Legislation Under
section 8, the Secretary is empowered to issue "such * * * regulations
as [s]he may deem necessary to carry out [her] responsibilities under this
Act[,]" including regulations requiring employers to record and to make
reports on "work-related deaths, injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion or transfer
to another job." 29 U.S.C. 657(g)(2), (c)(2). Similarly, section 24
directs the Secretary to compile accurate statistics on "all disabling
serious, or significant injuries and illnesses, whether or not involving loss
of time from work, other than minor injuries. * * *" 29 U.S.C. 673(a).
Where an agency is authorized to prescribe regulations "necessary"
to implement a statutory provision or purpose, a regulation promulgated under
such authority is valid "so long as it is reasonably related to the
enabling legislation." Mourning v. Family Publications
Service, Inc., 411 U.S. 356, 369 (1973). Section
8(g)(2) is functionally equivalent to the enabling legislation at issue in Mourning;
therefore a reviewing court must examine the final recordkeeping rule's
relationship to the purposes of section 8. Cf. Louisiana Chemical Assn.
v. Bingham, 550 F. Supp. 1136, 1138-1140 (W.D. La. 1982), aff'd, 731
F.2d 280 (5th Cir. 1984) (records access rule is directly related to the
goals stated in the Act and supported by the language of section 8). C. The Final Recordkeeping Rule's Key Provisions Are Reasonably
Related to the Purposes of the OSH Act The
goal of this final rule, as stated in the Summary, is to improve the quality
and consistency of injury and illness data while simplifying the
recordkeeping system to the extent consistent with the statutory mandate. To
achieve this purpose, the final rule carries forward the key elements of the
existing recordkeeping scheme, with changes designed to improve efficiency,
equity, and flexibility while reducing, to the extent practicable, the
economic burden on individual establishments. The central requirements in the
final rule may be summarized as follows: All non-exempt employers must record
all work-related, significant injuries and illnesses. As discussed below,
OSHA's approach to each of these elements -- the scope of the exemptions from
recording requirements, the meaning of "work-relationship," and the
criteria for determining whether an injury or illness is
"significant" -- is reasonable and directly related to the
statutory language and purpose. 1.
Exemptions From Recordkeeping Requirements The
final rule contains two categories of exemptions that, together, relieve most
employers of the obligation routinely to record injuries and illnesses
sustained by their employees. Section 1904.1 contains a "very
small-employer" exemption: Employers need not record injuries or illnesses
in the current year if they had 10 or fewer employees at all times during the
previous year, unless required to do so pursuant to Sections 1904.41 or
1904.42. Section 1904.2 contains a "low-hazard industry" exemption:
Individual business establishments are not required to keep records if they
are classified in specific low-hazard retail, service, finance, insurance, or
real estate industries. a. The size-based exemption. Section 8(d) of the Act expresses Congress'
intent to minimize, where feasible, the burden of recordkeeping requirements
on employers, particularly small businesses: "Any information obtained
by the Secretary, the Secretary of [HHS], or a State agency under this Act
shall be obtained with a minimum burden upon employers, especially those operating
small businesses. Unnecessary duplication of efforts in obtaining information
shall be reduced to the maximum extent feasible." 29 U.S.C. 657(d). Since
1972, the Secretary has exempted very small businesses from most
recordkeeping requirements. On October 4, 1972, OSHA issued a provision,
codified at 29 CFR 1904.15(a), exempting employers from routine injury and
illness reporting requirements for the current year if they had no more than
seven employees during the previous year. The exemption did not relieve these
businesses from the obligation to report fatality and multiple
hospitalization incidents to OSHA and to participate in the BLS annual survey
when selected to do so. 37 FR 20823 (October 4, 1972). In 1977, the Secretary
amended section 1904.15 to make it applicable to businesses having ten or
fewer employees during the year preceding the current reporting year. 42 FR
38568 (July 29, 1977). As support, the amendment cited the Department of
Labor appropriations acts for fiscal years 1975 and 1976, which exempted
employers having ten or fewer employees from most routine recordkeeping
requirements, and Section 8(d) of the Act. Id. The Secretary
determined that the amendment appropriately balanced the interest of very
small businesses while preserving the essential purposes of the recordkeeping
scheme: The
[exemption] has been carefully designed to carry out the mandate of section
8(d) without impairing the Act's basic purpose. Thus, the [exemption] will
not diminish the protections afforded employees under the Act because all
employers * * * remain subject to the enforcement provisions of the Act. The
[exemption] will continue to require * * * small employers * * * to report
fatalities and multiple hospitalizations and to participate in the BLS annual
survey when selected to do so. 42
FR 10016 (February 18, 1977). In
the present rulemaking, the Secretary proposed to enlarge the scope of the
exemption to include employers, in industries other than construction, having
19 or fewer employees during the entire previous calendar year. 61 FR 4057
(February 2, 1996). At the same time, the proposal asked for public comment
on whether "the small employer partial exemption [should] remain the
same, be eliminated, or be expanded?" 61 FR 4043. In reaching a final
decision on this matter, the Secretary resolved two interrelated questions.
First, she determined that there is no sound basis for departing from OSHA's
prior interpretation that the Act permits a carefully crafted exemption for
very small employers. Second, she determined that limiting the exemption to
employers with ten or fewer employees effectuates Congress' intent with the
minimum degree of impairment to the overall recordkeeping scheme. The first
question is essentially one of statutory construction, and is therefore
considered below. The second question calls for an analysis of the record and
is addressed in the preamble explanation for section 1904.1 of the final
rule. It
is a fundamental principle of administrative law that an agency which chooses
to reverse a previously held position must supply a "reasoned
analysis" of its decision. Motor Vehicle Mfgrs Assn. v. State
Farm Mutual Automobile Insurance Co., 463 U.S. 27, 42 (1983). After
careful consideration, the Secretary finds no persuasive basis for eliminating
the small-employer exemption in this rule. As a threshold matter, nothing has
changed the agency's long-held view that section 8(d) permits a carefully
tailored exemption from recordkeeping requirements for very small businesses.
42 FR 10016 (February 18, 1977). This interpretation is consistent with the
literal wording of the statute and is further confirmed by the provisions in
the Department's appropriations acts for FY 1975 and 1976, exempting
employers with ten or fewer employees from routine recordkeeping and
reporting requirements. See 42 FR 5356 (January 28, 1977) (noting restriction
in FY 1975 and 1976 appropriations acts and stating OSHA would continue to
treat firms of up to 10 employees as exempt pending permanent change in the
regulations to expand the small-employer exemption). OSHA
also concludes that a very small business exemption limited to the routine
recording and reporting of non-fatal injuries and illnesses will not
seriously undermine the recordkeeping system. OSHA explained in Section I. of
the preamble that there are three primary purposes for recordkeeping and
reporting requirements. First, the records are the foundation for national
statistics published by the BLS on the number and rate of workplace injuries
and illnesses, as well as their source, nature and type. Second, the records
provide information useful to employers and employees in their efforts
voluntarily to locate and eliminate workplace safety and health hazards.
Finally, the records are useful to OSHA in targeting its enforcement efforts
and in efficiently conducting its safety and health inspections. Exempting
very small businesses from routine recordkeeping will not significantly
compromise these goals. The exemption has no effect upon the obligation of
these businesses to participate in the national statistical survey
administered by the BLS. See the discussion of § 1904.42 in Section V.
Summary and Explanation. If a small business is selected for participation in
the survey, it must keep a log of injuries and illnesses and make reports as
required by the BLS. Id. Thus, even the smallest firms continue to be
represented in the national injury and illness statistics. The
second purpose is not seriously compromised by the exemption because injury
and illness records are less necessary as an aid to voluntary compliance
efforts by very small employers and their employees than they are for larger
employers. OSHA's experience is that, in establishments with only a few
employees, management and production personnel typically work in close
concert. Because of their size, such establishments also tend to record fewer
occupational injuries and illnesses. Accordingly, in very small firms,
managers are likely to have first-hand knowledge of those occupational
injuries and illnesses that occur in their workplaces. By the same token, it
is reasonable to believe that employees in very small firms are generally
aware of the injuries that occur in their workplaces and do not rely heavily
upon access to employer records to inform themselves about occupational
hazards. In short, review and analysis of injury and illness records by very
small business employers, or by their employees, may not be required for
awareness of workplace conditions. Finally,
routine injury and illness records are of limited usefulness to OSHA in
targeting and conducting inspections. Many OSHA inspections are conducted in
response to a specific complaint or referral alleging unsafe conditions, or
in response to a workplace catastrophe or fatality. A large number of
inspections are also conducted under special emphasis programs at the
national and local level. The remaining inspections are conducted at specific
worksites in the construction industry and in other non-construction
industries selected under a planned schedule. Construction inspections are
selected using an econometric model that predicts the best time to conduct an
inspection at a specific construction project. The general industry scheduled
inspections are targeted primarily toward employers with extremely high rates
of occupational injury and illness, using data supplied by employers to the
OSHA Data Initiative (ODI) under the requirements of former section 1904.17, Annual
OSHA Injury and Illness Survey of Ten or More Employers (now section 1904.41).
Due to budget, paperwork burden and logistical constraints, OSHA collects
data only from employers in high hazard industries, and has generally not
collected data from employers with fewer than 40 workers. OSHA
is also prohibited from conducting scheduled inspections of employers with 10
or fewer employees in low hazard industries by an annual rider on OSHA's
appropriations bills which has been renewed annually for many years. Thus,
OSHA does not collect data from very small employers, and they are excluded
from the general industry scheduled inspection program. Because very small
firms have been wholly excluded from the general schedule inspection program,
the routine injury and illness records of very small businesses have been of
little use to OSHA in targeting inspections. Should OSHA wish to include very
smaller employers in a special emphasis inspection program or other
initiative, the agency may require any business, regardless of its size, to
keep records and make reports as necessary. See 29 CFR 1904.41. OSHA
also finds that access to the Log and Incident Report would be of little
value to compliance officers in conducting inspections of very small
businesses initiated by a complaint or report of a fatality or an accident
resulting in multiple hospitalizations. OSHA has long acknowledged that while
injury and illness records are frequently useful in identifying hazardous
areas or operations within larger establishments subject to programmed
inspections, they are significantly less important in the conduct of
inspections in the smallest businesses. As OSHA has stated, "experience
has shown that when dealing with small employers, the injury and illness
records * * * are normally not needed by the CSHO to locate hazards during an
inspection. In those cases where log information may be needed, the CSHO can
easily obtain the information by interviewing the employees." 42 FR
10016 (February 18, 1977). See also 47 FR 57699, 5700 (December 28, 1982) (in
conducting complaint or fatality inspections, the hazard information is
usually provided by the complaint itself, or through prompt investigation.)
For these reasons, the Secretary believes that an exemption for very small
employers, reasonably tailored to the purposes served by recordkeeping
requirements, is appropriate. b. The hazard-based exemption. Since 1982, OSHA has exempted from routine
recordkeeping requirements certain industries classified in OMB's Standard
Industrial Classification (SIC) Manual. The 1982 exemption was limited to
establishments in SIC Industry Groups that (1) were not subject to general
schedule inspections, and (2) had average lost workday case injury rates, as
published by the BLS, at or below 75% of the national average. In 1982, the
industry groups that met these criteria were those classified as retail
trade, finance, insurance, real estate, and services -- SIC codes 52-89,
excluding 52-54, 70, 75, 76, 79, and 80. 47 FR 57699-57,700 (December 28,
1982). The
purpose of the exemption "was to further OSHA's continuing effort under
section 8(d) of the Act to reduce the paperwork burden on employers without
compromising worker safety and health." 47 FR 57700. Exempting
low-hazard industries from routine record-keeping was justified, OSHA
explained, for the same reasons that warranted exempting very small
businesses. Injury and illness records from establishments in the affected
SIC codes were not of significant benefit to OSHA because these industry
groups were not then targeted for general schedule inspections. Id.
The records were not a significant source of information for employers and
employees because BLS data showed that approximately 94% of all
establishments in the affected industry groups could be expected to have
fewer than two injuries per establishment on an annual basis. Id. Finally,
the exemption would not affect the reliability of safety and health
statistics because the affected establishments would continue to participate
in the BLS annual survey of occupational injuries and illnesses. Id. OSHA
continues to believe that a properly tailored exemption for low-hazard
industries is appropriate. Congress intended in section 8(d) to minimize the
recordkeeping burden on all employers, not only small businesses. Exempting
from routine injury and illness reporting requirements those employers whose
records are unlikely to be of significant benefit to OSHA, or to the
employers and their employees, serves this important interest. However, OSHA
recognizes that the balance between the interest of minimizing recordkeeping
burdens and that of ensuring accurate, reliable and useful information is a
delicate one. In the final rule, OSHA has substantially revised the list of
exempt low-hazard industries based upon more reliable three-digit industry
classification data. See the discussion of § 1904.1, in the following Summary
and Explanation. With these changes, OSHA believes that the rule strikes the
appropriate balance. 2.
The Meaning of "Work-Relationship" Section
8 of the Act directs the Secretary to prescribe regulations requiring
employers to "maintain accurate records of * * * work-related deaths
injuries and illnesses [of a non-minor nature]. 29 U.S.C. 657(c)(2). The
definition of work-relationship in section 1904.5 of the final rule is
consistent, in all but one respect, with the definition in the Guidelines
to the former rule. The final rule states that an injury or illness is
work-related "if an event or exposure in the work environment either caused
or contributed to [it] or significantly aggravated a pre-existing injury
or illness. Work-relatedness is presumed for injuries and illnesses resulting
from events or exposures occurring in the work environment, unless an
exception listed in section 1904.5(b)(2) specifically applies" (emphasis
added). The
Guidelines state that, "[i]f an event * * * occurred in the work
environment that caused or contributed to the injury", the case
would be recordable, assuming it meets the other requirements for
recordability. Ex. 2 at p. 32 (original emphasis). Further instructions in
the Guidelines provided that: The
general rule is that all injuries and illnesses which result from events or
exposures occurring to employees on the employer's premises are presumed to
be work related. This presumption is rebuttable. * * * However, the nature of
the activity which the employee is engaged in at the time of the event or
exposure, the degree of employer control over the employee's activity, the
preventability of the incident, or the concept of fault do not affect the
determination. Ex.
2 at p. 34 (original emphasis). The only significant difference between the
final rule and the former rule is that the final rule requires that work
"significantly" aggravate a pre-existing injury or illness before
the case is recordable. OSHA's
approach to work-relationship in both the former and the final recordkeeping
rules reflects two important principles. The first is that work need only be
a causal factor for an injury or illness to be work-related. The rule
requires neither precise quantification of the occupational cause, nor an assessment
of the relative weight of occupational and non-occupational causal factors.
If work is a tangible, discernible causal factor, the injury or illness is
work-related. The second principle is that a "geographic
presumption" applies for injuries and illnesses caused by events or
exposures that occur in the work environment. These injuries and illnesses
must be considered work-related unless an exception to the presumption
specifically applies. The
final rule's geographic presumption reflects a theory of causation similar to
that applied by courts in some workers' compensation cases. Under the
"positional-risk" test, an injury may be found to "arise out
of" employment for compensation purposes if it would not have occurred
but for the fact that the conditions and obligations of employment placed the
claimant in the position where he or she was injured. See 1 Larson's Workers'
Compensation Law section 6.50 (1977). Accord, Odyssey/Americare of
Oklahoma v. Worden, 948 P.2d 309, 311 (Okla. 1997). Under this
"but for" approach to work-relationship, it is not necessary that
the injury or illness result from conditions, activities or hazards that are
uniquely occupational in nature. Accordingly, the presumption encompasses
cases in which an injury or illness results from an event at work that is
outside the employer's control, such as a lightning strike, or involves
activities that occur at work but that are not directly productive, such as
horseplay. The
proposed rule asked for comment on whether OSHA should abandon its historic
approach and adopt a new test for determining work-relationship. 61 FR 4044,
4045. The proposal outlined three alternative tests in which the
determination of work-relationship turned on the degree to which the injury
or illness was linked to occupational causes, as compared with personal
factors such as off-the job activities, aging, or pre-existing medical
conditions. Two of these alternative tests required evidence of a high degree
of work causation to establish work-relationship. Alternative 1 required that
occupational factors be the "sole cause" of the injury or illness;
any evidence of non-work related causal factors was sufficient to exclude the
case. Alternative 2 required that occupational factors be the "predominant
cause" before the case could be considered work-related. See 61 FR 4044.
Some commenters suggested a modification to Alternative 2 that would have
involved substitution of the word "substantial" or
"significant" for "predominant." The
third alternative test was significantly more expansive than that adopted in
the final rule. Under Alternative 3, an injury or illness would be considered
work-related if the work environment had any possibility of playing a causal
role. 61 FR 4044. Some
commenters favored a somewhat different test for work-relationship that
focused on the nature of the injury-causing event in the workplace. This test
would include in the OSHA records only those cases resulting from uniquely
occupational or job-related activities or processes. Supporters of this
approach argued that it would exclude injuries and illnesses caused by
factors at work that are unrelated to production tasks, or that are
unpreventable by the employer's safety and health program. After
careful consideration of the record, OSHA believes that the final rule's test
for work-relationship is both more consistent with the Act's purpose and more
practical than the "quantified occupational cause" tests or the
"unique occupational conditions" test. The language of the statute
itself indicates that Congress did not intend to give
"work-related" a narrow or technical meaning, but rather sought to
cover a variety of causal relationships that might exist in workplaces.
Section 2 of the Act addresses injuries and illnesses arising out of
"work situations." Sections 2(b)(1), 2(b)(2), and 2(b)(4) refer to
"places of employment," and to the achievement of safe and
healthful "working conditions." Section 2(b)(7) seeks to assure
that no employee will suffer diminished health or life expectancy as a result
of his "work experience." Section 2(b)(12) states that one of the
Act's purposes is to provide for reporting procedures which "accurately
describe the nature of the occupational safety and health problem."
Section 2(b)(13) encourages joint labor-management efforts to reduce injuries
and disease "arising out of employment." This
conclusion is further supported by the Act's stated purpose to promote
research into the causes and prevention of occupational injuries and
illnesses. Section 2 of the Act establishes Congress' intent to improve
occupational safety and health, inter alia, by: Providing
for research in the field of occupational safety and health, including the
psychological factors involved, and by developing innovative methods,
techniques and approaches for dealing with occupational safety and health
problems. 29 U.S.C. § 651(b)(5) [E]xploring
ways to discover latent diseases, establishing causal connections between
diseases and work in environmental conditions, and conducting other research
relating to health problems. * * * 29 U.S.C. § 651(b)(6). Providing
for appropriate reporting procedures with respect to occupational safety and
health which will help achieve the objectives of this Act and accurately
describe the nature of the occupational safety and health problems. 29 U.S.C.
§ 651(b)(12). The
legislative history of the Act demonstrates Congress' awareness of the
importance of developing information for future scientific use. The Committee
Report accompanying the Senate bill reported to the floor noted that, [i]n
the field of occupational health, the view is particularly bleak, and due to
the lack of information and records, may well be considerably worse than we
currently know. * * * Recent scientific knowledge points to hitherto
unsuspected cause-and-effect relationships between occupational exposures and
many of the so-called chronic diseases -- cancer, respiratory ailments,
allergies, heart disease, and others. In some instances, the relationship
appears to be direct: asbestos, ionizing radiation, chromates, and certain
dye intermediaries, among others, are directly involved in the genesis of
cancer. In other cases, occupational exposures are implicated as contributory
factors. The distinction between occupational and non-occupational illnesses
is growing increasingly difficult to define. S.
Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), reprinted in
Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, Legislative
History of the Occupational Safety and Health Act of 1970 (Committee
Print 1971) at 142 (Leg. Hist.). With this background in mind, the committee
stated that it "expects the Secretary of Labor and the Secretary of
[HHS] will make every effort through the authority to issue regulations and
other means, to obtain complete data regarding the occurrence of illnesses,
including those resulting from occupational exposure which may not be
manifested until after the termination of such exposure." Leg. Hist. at
157. Both
the Senate and the House Committees expressed concern that the statute not be
interpreted in a way that would result in under-reporting of injuries and
illnesses. The Senate report states: The
committee recognizes that some work-related injuries or ailments may involve
only a minimal loss of work time or perhaps none at all, and may not be of
sufficient significance to the Government to require their being recorded or
reported. However, the committee was also unwilling to adopt statutory
language which, in practice might result in under-reporting. The committee
believes that records and reports prescribed by the Secretary should include
such occurrences as work-related injuries and illnesses requiring medical
treatment or restriction or reassignment of work activity, as well as
work-related loss of consciousness. Leg.
Hist. at 157. The House Report similarly noted that while some injuries and
illnesses might not be of enough value to require recordation, "the
greater peril" lay in allowing under reporting. Leg. Hist. at 860.
Therefore, the report added, "[the] language 'all work-related injuries,
[and illnesses]' should be treated as a minimum floor. * * *" In
light of these purposes, it is apparent that Congress did not, in Section 8,
mean to limit recordable "work-related" injuries and illnesses only
to those caused primarily or substantially by work. It is evident from the
statute that Congress wanted employers to keep accurate records of non-minor
injuries and illnesses, in part, to serve as a basis for research on the
causes and prevention of industrial accidents and diseases. This research is
needed, among other reasons, to further examine and understand those
occupational factors implicated as contributory causes in injuries and
diseases. To serve this purpose, the records should include cases in which
there is a tangible connection between work and an injury or illness, even if
the causal effect cannot be precisely quantified, or weighed against
non-occupational factors. The
first two alternative quantification theories outlined in the preamble would
exclude important information from the records. These theories would
eliminate cases in which the work environment is believed to have played a
definite role in the accident or the onset of disease, but not enough is
known to quantify the effect of work factors or to assess the relative
contribution of work and non-work factors. However, the information provided
by cases having a tangible, yet unquantifiable, connection with the work
environment is useful to employers, employees and researchers and thus serves
the recordkeeping purposes envisioned by Congress. On
the other hand, the third alternative theory in the proposal would sweep too
broadly. A work-relationship test that is met if work has "any
possibility of playing a role in the case" would include virtually every
injury or illness occurring in the work environment. 61 Fed. Reg. 4044.
Recording cases in which the causal connection to work is so vague and
indefinite as to exist only in theory would not meaningfully advance
research, or serve the other purposes for requiring recordkeeping. For these
reasons, OSHA has rejected the three alternative theories outlined in the
proposal. The
"unique occupational activity" test, which some commenters favored
instead of the geographic presumption, would limit recorded injuries and
illnesses to those caused by an activity or process peculiarly occupational
in nature. Supporters of this approach identified several types of cases that
would be work-related under the geographic presumption, but not recordable
under an activities-based approach. These include cases in which the injury
or illness was not caused by the physical forces or hazards unique to
industrial processes, cases in which the employee was not injured while
performing an activity or task directly related to production, and cases in
which the injury or illness was not preventable by the employer. The
"unique occupational activity" test is unsuitable for essentially
the same reasons that militate against the first two alternatives described
in the proposal. The statutory language and purpose do not reflect a
Congressional intent to limit recording only to those cases resulting from
uniquely occupational hazards or activities. Rather, the statute shows that
Congress knew that employees were being injured and made ill in a variety of
ways and under a variety of circumstances, and wanted employers to record all
cases causally related to the work environment. The "but-for"
theory underlying the geographic presumption is a widely accepted legal test
for causation and is consistent with the statutory language and purpose. The
"unique occupational activities" test, like the
"quantification" tests, would likely result in exclusion of
important information from the records. An activity-based test for
work-relationship could obscure the role of factors in the work environment
not directly linked to production, such as violence perpetrated by employees
and others or tuberculosis outbreaks. In addition, the precise causal
mechanism by which an employee has been injured or made ill at work may not
be known at the time of the accident, or may be misunderstood. To serve the
statute's research purposes, the records must reflect not only those injuries
and illnesses for which the precise causal mechanism is apparent at the time
of recordation, but also those for which the mechanism is imperfectly
understood. The alternative approaches to work-relationship would severely
limit the usefulness of injury and illness data for research purposes,
particularly research to uncover latent patterns of health impairment and
disease and to establish causal connections between diseases and exposure to
particular hazards. The
Occupational Safety and Health Review Commission has affirmed the approach to
work-relationship taken in the former rule. General Motors Corp., Inland
Div., 8 O.S.H. Cas. (BNA) 2036, 2039-2040 (August 29, 1980). The issue in
General Motors was whether the employer was required to record
respiratory ailments of three employees, based on notations from the
employees' treating physicians that their ailments were probably related to
exposure to a chemical substance at work. The Commission rejected the
employer's argument that the recordkeeping rule required recording only of
illnesses directly caused by work activities, stating: To
accept Respondent's interpretation would impose a static view of scientific
knowledge. Only illnesses in which the known cause was the occupational
environment would be recorded. Unknown medical correlations between disease
and the workplace would be obscured by this inadequate recording obligation.
Under this interpretation of the statute and regulations, OSHA and NIOSH
would be significantly restrained from fulfilling their statutory obligation
of making the workplace healthier. * * * [T]he primary purpose of the
recording obligation is to develop information for future scientific use. 8
O.S.H. Cas. at 2040. Accordingly, OSHA believes that there is a sound legal
basis for the definition of work-relationship in the final rule. There
are also sound policy justifications. The approach to
"work-relationship" adopted in the final rule is more
cost-effective than the alternative approaches and will result in more
accurate injury and illness data. OSHA expects that for each reported injury
or illness, employers generally will be able to apply the geographic
presumption more easily and quickly than a test requiring an assessment of
the relative contribution of employment and personal causes. The incremental
reduction in the time necessary to complete each entry, when multiplied by
the total number of entries per year, will result in a substantial cumulative
saving in paperwork burden in comparison to the burden that would be imposed
by the alternatives. The
geographic presumption will also produce more consistent and accurate
reporting. OSHA believes that it would be difficult to measure the precise
degree to which personal and occupational factors cause accidents or
illnesses. Accordingly, any test requiring that job duties or tasks be
"significant" or "predominant" causative factors would
necessarily involve a high degree of subjective judgment. There is likely to
be substantial inconsistency, both in the treatment of successive, similar
cases by the same employer, and in the treatment of such cases among
different employers. Moreover, such a test would fail to capture cases in
which the workplace contribution to an injury or illness was imperfectly
known or misunderstood at the time the case was reported. Recording all cases
caused by events or exposures at work, with only limited exceptions, produces
data that enables OSHA, employers and others to better understand the causal
relationships present in the work environment. Although OSHA has not adopted
a test for determining significant contribution by work, the final rule does
include provisions to make sure that workplace aggravation of a pre-existing
injury must be significant before work relationship is established (see
discussion of 1904.5(b)(4)). A
number of commenters argued that because OSHA's mission is to eliminate
preventable occupational injuries and illnesses, the determination of
work-relatedness must turn upon whether the case could have been prevented by
the employer's safety and health program. Dow expressed this view as follows: [T]he
goal of this recordkeeping system should be to accurately measure the
effectiveness of safety and health programs in the workplace. Activities
where safety and health programs could have no impact on preventing or
mitigating the condition should not be logged and included in the Log and
Summary nor used by OSHA to determine its inspection schedule. If the event
was caused by something beyond the employer's control, it should not be
considered a recordable event that calls into question a facility's safety
and health program. * * * Credibility in this regulation rests on whether the
recorded data accurately reflects the safety and health of the workplace.
Including events where the workplace had virtually no involvement undermines
the credibility of the system and results in continued resistance to this
regulation. Ex.
15-335B. The law firm of Constangy, Brooks and Smith, LLC, urged OSHA to
adopt the second alternative definition in the proposal because cases that
are "predominantly caused by workplace conditions" are the ones most
likely to be preventable by workplace controls. They stated, "[s]ince
OSHA's ultimate mission is the prevention of workplace injuries and
illnesses, it is reasonably necessary to require recording only when the
injury or illness can be prevented by the employer." Ex. 15-345. OSHA
believes that these comments reflect too narrow a reading of the purposes
served by injury and illness records. Certainly one important purpose for
recordkeeping requirements is to enable employers, employees and OSHA to
identify hazards that can be prevented by compliance with existing standards
or recognized safety practices. However, the records serve other purposes as
well, including facilitating the research necessary to support new
occupational safety and health standards and to better understand causal
connections between the work environment and the injuries and illnesses
sustained by employees. As discussed above, these purposes militate in favor
of a general presumption of work-relationship for injuries and illnesses that
result from events or exposures at the worksite, with exceptions for specific
types of cases that can be safely excluded without significantly impairing
the usefulness of the database. 3.
The Criteria for Determining the Significance of an Injury or Illness Section
1904.7 of the final rule sets forth the criteria to be used by employers in
determining whether work-related occupational injuries and illnesses are
significant, and therefore recordable. Under § 1904.7, a work-related injury
or illness is significant for recordkeeping purposes if it results in any of
the following: death, days away from work, restricted work or transfer to
another job, medical treatment beyond first aid, or loss of consciousness.
Employers must also record any significant injury or illness diagnosed by a
physician or other licensed health care professional even if it does not does
not result in the one of the listed outcomes. OSHA's definition of a
"significant" injury or illness in this context is based on two key
principles discussed below. The first is that the requirement for recording
only significant cases applies equally to "injuries" and
"illnesses" for recordkeeping purposes. The second principle is
that the criteria expressly mentioned in the Act, such as death, loss of
consciousness or restriction of work, are mandatory but not exclusive indicia
of significance; any significant injury or illness diagnosed by a physician
or other licensed health care professional must also be recorded. These two
principles are addressed below, while the definitions applicable to the
specific criteria themselves, and related evidentiary issues, are discussed
in the preamble explanation for section 1904.7. a. The significant case requirement applies equally to injuries and
illnesses; employers are no longer to report insignificant illnesses. OSHA distinguishes between
injuries and illnesses based on the nature of the precipitating event or
exposure. Cases which result from instantaneous events are generally
considered injuries, while cases which result from non-instantaneous events,
such as a latent disease or cumulative trauma disorder, are considered
illnesses. Id. Under
the former recordkeeping regulations, occupational injuries had to be
recorded if they were non-minor in nature; that is, if they resulted in loss
of consciousness, or required medical treatment, time off work, restriction
of work, lost time, or transfer to another job. 61 FR 4036. However, all
occupational illnesses had to be reported, regardless of severity. Id.
This difference in the severity threshold for recording injuries and
illnesses had, in the past, been based upon the particular phrasing of
section 8(c)(2) of the Act: The
Secretary * * * shall prescribe regulations requiring employers to maintain
accurate records of, and to make periodic reports on, work-related deaths,
injuries and illnesses, other than minor injuries requiring only first aid
treatment and which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job." 29
U.S.C. 657(c)(2). Because the severity criteria appear in the clause defining
"minor injuries," OSHA had construed the section to require
recordation of all work-related illnesses, even those that do not meet the
severity characteristics expressly applicable to "injuries." OSHA
has reconsidered its position in this rulemaking, and has concluded that the
former rule was inappropriate in several respects. First, although the
severity characteristics listed in section 8(c)(2) of the Act apply expressly
to "injuries," the Act contains persuasive indications that
Congress also meant to require recordation only of "significant"
illnesses, as determined by reasonable criteria. Section 24(a) states that
"[t]he Secretary shall compile accurate statistics on work injuries and
illnesses which shall include all disabling, serious, or significant injuries
and illnesses * * * other than minor injuries requiring only first aid
treatment and which do not involve medical treatment * * * ." 29 U.S.C.
673 (a). The legislative history also supports this view. The statement of
the House managers on the resolution of conflicting House and Senate bills
states that: A
Senate bill provision without a counterpart in the House amendment permitted
the Secretary to require an employer to keep records and make reports on
"all work-related deaths, injuries and illnesses." The House
receded with an amendment limiting the reporting requirement to injuries and
illnesses other than of a minor nature, with a specific definition of what is
not of a minor nature. Leg.
Hist. at 1190 (emphasis supplied). The former rule did not appropriately
implement this intent. In the first place, OSHA's prior interpretation that
section 8(c)(2) limits the applicability of the listed severity criteria only
to injuries does not necessarily mean that illnesses must be recorded without
regard to their significance. As a textual matter, such a reading simply
leaves open the question of what, if any, severity criteria apply to
illnesses. OSHA
believes that the Act does not support a different severity threshold for
injuries than for illnesses. OSHA is now persuaded that its prior reading of
section 8(c)(2) placed too much emphasis on the fact that the severity
criteria modify the word "injuries" in the clause, "other than
minor injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or motion or
transfer to another job." 29 U.S.C. 657(c)(2). Congress' failure to list
specific severity criteria for illnesses, as it did for injuries, does not,
in itself, compel the inference that two different sets of criteria must
apply. Congress meant to limit recordation to significant injuries and
illnesses alike, and absent strong indications to the contrary, it is
reasonable to presume that Congress meant the same severity threshold to
apply to both conditions. In
addition, there are strong policy reasons for avoiding a distinction between
injuries and illnesses based on severity. OSHA explained in the proposal that
the current distinction between injuries and illnesses based on the nature of
the precipitating event has caused some degree of confusion and uncertainty.
Using one set of criteria for severity means that employers will not have to
decide whether a case is an injury or an illness in determining its
recordability. This simplifies the recordkeeping system, resulting in more
accurate injury and illness data while reducing the recordkeeping burden for
employers who are required to maintain records (61 FR 4036). Employers will
continue to classify each recordable case as either an injury or an illness
on the OSHA 300 Log, but the decision no longer has any effect on whether or
not the case must be recorded. b. The criteria listed in the Act are mandatory but not exclusive
indicia of significance. A final issue relating to significance is the effect to be given a
finding that an injury or illness results in, or does not result in, one of
the outcomes listed in the statute: death, days away from work, restricted
work or transfer to another job, medical treatment beyond first aid, or loss
of consciousness. The implication arising from the wording of section 8(c)(2)
and section 24 is that if an injury or illness results in one of the listed
outcomes, it must be deemed significant for recordkeeping purposes. This
position, which reflects OSHA's longstanding, consistent interpretation of
the statute, was not seriously questioned in the rulemaking. Accordingly, the
final rule requires that a work-related injury or illness be recorded if it
results in one of the outcomes mentioned in the statute. The
final rule also requires that a case be recorded, whether or not it results
in one of the listed outcomes, if it involves a significant injury or illness
diagnosed by a physician or other licensed health care professional. 29 CFR
1904.10(b). Nothing in the statute compels the conclusion that the criteria
mentioned in sections 8 and 24 are the exclusive indicia of severity for
recordkeeping purposes. Congress directed the Secretary to collect data on
"all disabling, serious, or significant injuries and illnesses, whether
or not involving loss of time from work," other than minor injuries * *
* which [do not result in one of the listed outcomes]. 29 U.S.C. 673(a). A
reasonable reading of this language is that while an injury that meets one of
the listed criteria is non-minor and must be recorded, the converse does not
necessarily follow. An injury or illness may reasonably be viewed as
significant, and therefore recordable, even if it is not immediately followed
by death, loss of consciousness, or job-related disability. For example, an
employee diagnosed with an unquestionably serious work-related disease, such
as asbestosis or mesothelioma, may forego or postpone medical treatment and
continue temporarily to perform his or her normal job duties. Focusing
exclusively on the basic criteria listed in the statute in cases such as
these could result in underrecording of serious cases. Accordingly, the final
rule requires employers to record any significant injury or illness that is
diagnosed. A thorough discussion of this requirement, including a definition
of what constitutes a "significant" injury or illness for this
purpose, is contained in the preamble discussion of section 1904.7. Because
the provisions of the final recordkeeping rule, as explained above and in the
subsequent sections of this preamble, are reasonably related to the statutory
purposes, the Secretary finds that the rule is necessary to carry out her responsibilities
under the Act. The rule is therefore a valid exercise of the Secretary's
general rulemaking authority under Section 8. Cf. Mourning v. Family
Publications Services, 411 U.S. 356. VII. Summary and Explanation The
following sections discuss the contents of the final 29 CFR Part 1904 and
section 1952.4 regulations. OSHA has written these regulations using the
plain language guidance set out in a Presidential Memo to the heads of
executive departments and agencies on June 1, 1998. The Agency also used
guidance from the Plain Language Action Network (PLAN), which is a
government-wide group working to improve communications from the Federal
government to the public, with the goals of increasing trust in government,
reducing government costs, and reducing the burden on the public. For more
information on PLAN, see their Internet site at http://www.plainlanguage.gov/. The
plain language concepts encourage government agencies to adopt a first person
question and answer format, which OSHA used for the Part 1904 rule. The rule
contains several types of provisions. Requirements are described using the
"you must * * *" construction, prohibitions are described using
"you may not * * *", and optional actions that are not requirements
or prohibitions are preceded by "you may * * *." OSHA has also
included provisions to provide information to the public in the rule. Subpart A. Purpose The
Purpose section of the final rule explains why OSHA is promulgating this
rule. The Purpose section contains no regulatory requirements and is intended
merely to provide information. A Note to this section informs employers and
employees that recording a case on the OSHA recordkeeping forms does not
indicate either that the employer or the employee was at fault in the
incident or that an OSHA rule has been violated. Recording an injury or
illness on the Log also does not, in and of itself, indicate that the case
qualifies for workers' compensation or other benefits. Although any specific
work-related injury or illness may involve some or all of these factors, the
record made of that injury or illness on the OSHA recordkeeping forms only
shows three things: (1) that an injury or illness has occurred; (2) that the
employer has determined that the case is work-related (using OSHA's
definition of that term); and (3) that the case is non-minor, i.e.,
that it meets one or more of the OSHA injury and illness recording criteria.
OSHA has added the Note to this first subpart of the rule because employers
and employees have frequently requested clarification on these points. The
following paragraphs describe the changes OSHA has made to the Purpose
provisions in Subpart A of the final rule, and discusses the Agency's reasons
for these changes. Proposed section 1904.1 of Subpart A contained three
separate paragraphs. Proposed paragraph (a) stated that the purpose of the
recordkeeping rule (Part 1904) was "to require employers to record and
report work-related injuries, illness and fatalities." It also described
several ways in which such records were useful to employers, employees, OSHA
officials, and researchers evaluating and identifying occupational safety and
health issues. Proposed
paragraph (b) noted that the recording of a job-related injury, illness or
fatality did not necessarily impute fault to the employer or the employee,
did not necessarily mean that an OSHA rule had been violated when the
incident occurred, and did not mean that the case was one for which workers'
compensation or any other insurance-related benefit was appropriate. The
third paragraph in proposed section 1904.1, proposed paragraph (c), stated
that the regulations in Part 1904 had been developed "in consultation with
the Secretary of Health and Human Services" (HHS), as required by
Section 24(a) of the Act. In
the final rule, OSHA has moved much of this material, which was explanatory
in nature, from the regulatory text to the preamble. This move has simplified
and clarified the regulatory text. The final rule's Purpose paragraph simply
states that: "The purpose of this rule (Part 1904) is to require
employers to record and report work-related fatalities, injuries and
illnesses." This final rule statement is essentially identical to the
first sentence of the proposed Purpose section. It clearly and succinctly
states OSHA's reasons for issuing the final rule. A
number of commenters (see, e.g., Exs. 25; 15: 199, 305, 313, 346, 348,
352, 353, 375, 418, 420) specifically addressed proposed section 1904.1. The
principal points raised by these commenters concerned: (1) Statements in
proposed paragraph (a) about the quality of the data captured by the records;
(2) proposed paragraph (b)'s discussion of the relationship between OSHA
recordkeeping and employer/employee fault, violations of OSHA rules, and the
workers' compensation system, and (3) the statement in proposed paragraph (c)
that discussed OSHA's consultation with the Secretary of Health and Human
Services in developing this rule. Each of these issues is discussed in detail
below. Most
comments on proposed paragraph (a) took issue with the language that OSHA
used to describe the statistical use of the records (see, e.g., Exs.
25, 15: 305, 346, 348, 375, 420). Typical of these comments is one from the
National Association of Manufacturers: "We urge OSHA to remove the
following unverified and conclusory statement from § 1904.1(a): "The
records: * * * accurately describe the nature of occupational safety and
health problems for the Nation, State or establishment" (Exs. 25, 15:
305). OSHA did not intend this statement to attest with certainty to the
validity of national occupational statistics. Proposed section 1904.1(a)
merely paraphrased section 2(b) of the Act, which states that such records
"will help achieve the objectives of this Act and accurately describe
the nature of the occupational safety and health problem." In response
to commenters, OSHA has simplified the final rule by deleting the proposed
listing of the functions of the records required by this rule. As
discussed earlier, proposed paragraph (b) stated that the recording of a case
did not "necessarily mean that the employer or employee was at fault,
that an OSHA standard was violated, or that the employee is eligible for
workers' compensation or other insurance benefits." The last sentence of
proposed paragraph (b) described the various types of workplace events or
exposures that may lead to a recordable injury or illness. A
number of commenters agreed with the proposed statements on fault,
compliance, and the relationship between the recording of a case and workers'
compensation or other insurance (see, e.g., Exs. 25, 15: 305, 346,
420). Employers have frequently asked OSHA to explain the relationship
between workers' compensation reporting systems and the OSHA injury and
illness recording and reporting requirements. As NYNEX (Ex. 15: 199) noted, [t]he
issue of confusion between OSHA recordkeeping and workers'
compensation/insurance requirements cannot be totally eliminated as the
workers' compensation criteria vary somewhat from state to state. There will
always be some differences between OSHA recordability and compensable
injuries and illnesses. The potential consequences of these differences can
be minimized, however, if all stakeholders in the recordkeeping process
(i.e., employers, employees, labor unions, OSHA compliance officials) are
well informed that OSHA recordability does not equate to compensation
eligibility. This can be facilitated by printed reminders on all of the OSHA
recordkeeping documents (e.g., forms, instructions, pamphlets,
compliance directives, etc.). As
NYNEX observed, employers must document work-related injuries and illnesses
for both OSHA recordkeeping and workers' compensation purposes. Many cases
that are recorded in the OSHA system are also compensable under the State
workers' compensation system, but many others are not. However, the two
systems have different purposes and scopes. The OSHA recordkeeping system is
intended to collect, compile and analyze uniform and consistent nationwide
data on occupational injuries and illnesses. The workers' compensation
system, in contrast, is not designed primarily to generate and collect data
but is intended primarily to provide medical coverage and compensation for
workers who are killed, injured or made ill at work, and varies in coverage
from one State to another. Although
the cases captured by the OSHA system and workers' compensation sometimes
overlap, they often do not. For example, many injuries and illnesses covered
by workers' compensation are not required to be recorded in the OSHA records.
Such a situation would arise, for example, if an employee were injured on the
job, sent to a hospital emergency room, and was examined and x-rayed by a physician,
but was then told that the injury was minor and required no treatment. In
this case, the employee's medical bills would be covered by workers'
compensation insurance, but the case would not be recordable under Part 1904. Conversely,
an injury may be recordable for OSHA's purposes but not be covered by
workers' compensation. For example, in some states, workers' compensation
does not cover certain types of injuries (e.g., certain
musculoskeletal disorders) and certain classes of workers (e.g., farm
workers, contingent workers). However, if the injury meets OSHA recordability
criteria it must be recorded even if the particular injury would not be
compensable or the worker not be covered. Similarly, some injuries, although
technically compensable under the state compensation system, do not result in
the payment of workers' compensation benefits. For example, a worker who is
injured on the job, receives treatment from the company physician, and
returns to work without loss of wages would generally not receive workers'
compensation because the company would usually absorb the costs. However, if
the case meets the OSHA recording criteria, the employer would nevertheless
be required to record the injury on the OSHA forms. As
a result of these differences between the two systems, recording a case does
not mean that the case is compensable, or vice versa. When an injury or
illness occurs to an employee, the employer must independently analyze the
case in light of both the OSHA recording criteria and the requirements of the
State workers' compensation system to determine whether the case is
recordable or compensable, or both. The
American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) urged OSHA to emphasize the no-fault philosophy of the Agency's
recordkeeping system, stating: The
AFL-CIO is encouraged by some provisions currently in the proposed rulemaking
which indirectly address underreporting. But, we believe the Agency must take
it one step further. To adequately address this problem, the Agency must
encourage employers to adopt a "no fault system" philosophy in the
workplace and remove barriers which discourage the reporting of injuries and
illnesses by employees. This philosophy will not only encourage workers to
report injuries and illnesses, but also encourage those individuals (e.g.,
supervisors, safety personnel) responsible for recording this data to report
all recordable incidents (Ex. 15: 418). OSHA
believes that the note to the Purpose paragraph of the final rule will allay
any fears employers and employees may have about recording injuries and
illnesses, and thus will encourage more accurate reporting. Both the Note to
Subpart A of the final rule and the new OSHA Form 300 expressly state that
recording a case does not indicate fault, negligence, or compensability. The
Workplace Health and Safety Council, the American Coke and Coal Chemicals
Institute, and the National Oilseed Processors Association (Exs. 15: 313,
352, 353) all urged OSHA to improve on this paragraph of the proposed rule in
two ways. First, these commenters asked OSHA to remove the word
"necessarily" from the language of proposed paragraph (b), which
stated that recording did not "necessarily mean" that anyone was at
fault, that a standard had been violated, or that the case was compensable: The
qualification "necessarily" robs the [proposed] sentences of their
meaning and makes them inaccurate. Using the word erroneously implies that
merely listing an injury sometimes does mean that the employer or employee
was at fault, that an OSHA standard was violated, or that the employee is
eligible for workers' compensation. Clearly, this is not what OSHA intended
to convey. Indeed, the word "necessarily" may actually worsen the
problem OSHA seeks to solve, for attorneys and consultants reading the
proposed provision might well advise employers that the provision actually
endorses some uses of a listing against an employer. OSHA
should, therefore, delete the word "necessarily. * * *"
Alternatively, the sentence in the regulation should read: "That an
injury or illness is recordable has no bearing on whether the employer or
employee was at fault, an OSHA standard violated, or the employee is eligible
for workers' compensation. * * *" The legend in the form would be
similarly changed (Exs. 15: 313, 352, 353). These
three commenters (Exs. 15: 313, 352, 353) also suggested the following: (a)
much preferred additional solution, would be for OSHA to promulgate in the
final version a provision that makes inadmissible in all proceedings, both
those under the OSH Act and those under any state or federal law, the entries
in Form OSHA 300 and 301 as evidence of fault or culpability. Such a
regulation would give employers the necessary assurance that their
recordkeeping forms would not be used against them. Injured employees would
lose nothing by this, for they could still be permitted to prove the fact of
injury, its work-relatedness, and its consequence, with normal proof. They
would simply not be permitted to introduce the forms as evidence of
culpability. Such a rule would implement, be consistent with, and be
authorized by Section 4(b)(4) of the Act, which prohibits the Act from
affecting workers' compensation and tort schemes. OSHA
agrees with the point made by these commenters about the proposed rule's use
of the word "necessarily." Accordingly, the word necessarily has
been deleted from the Note to the Purpose paragraph of the final rule.
However, OSHA has rejected the suggestion made by these commenters to limit
the admissibility of the forms as evidence in a court proceeding. Such action
is beyond the statutory authority of the agency, because OSHA has no
authority over the courts, either Federal or State. In
the proposal, the no-fault statement was followed by a listing of the various
causes of recordable injuries and illnesses: "Recordable workplace
injuries and illnesses result from a variety of workplace events or
exposures, including but not limited to: accidents, exposure to toxic
materials or harmful physical agents, intentional acts of violence, or
naturally occurring events such as a tornado or earthquake." The
American Petroleum Institute (API) (Ex. 15: 375) objected to this proposed
sentence describing the various examples of injury and illness causality,
stating: To
help the system have much-needed credibility, "regardless of fault or
preventability" should not be applied beyond reasonable limits.
Specifically, it shouldn't mean "tornado or earthquake" or other
sudden, unforeseen catastrophic events over which the employer clearly could
not have any control. Employers can, however, exercise control to prevent
injury from some types of naturally occurring events. The terms "tornado
or earthquake" should be replaced with more reasonable examples. In
the final rule, OSHA has decided to eliminate the sentence of examples to
make the regulatory text clearer and more concise. However, OSHA notes that
many circumstances that lead to a recordable work-related injury or illness
are "beyond the employer's control," at least as that phrase is
commonly interpreted. Nevertheless, because such an injury or illness was
caused, contributed to, or significantly aggravated by an event or exposure
at work, it must be recorded on the OSHA form (assuming that it meets one or
more of the recording criteria and does not qualify for an exemption to the
geographic presumption). This approach is consistent with the no-fault
recordkeeping system OSHA has adopted, which includes work-related injuries
and illnesses, regardless of the level of employer control or non-control
involved. The issue of whether different types of cases are deemed
work-related under the OSHA recordkeeping rule is discussed in the Legal
Authority section, above, and in the work-relationship section (section
1904.5) of this preamble. In
a comment on proposed paragraph (a), the National Association of
Manufacturers (NAM) (Exs. 25, 15: 305) argued that the OSHA recordkeeping
system should only collect information on "the
most significant hazards, those that lead to the most significant injuries
and illnesses * * *" and that the purpose paragraph of the final rule be
revised to state "The purpose of this Part is to require employers to
record and report disabling, serious and significant work-related injuries
and illnesses, and work-related fatalities." OSHA
does not agree with this interpretation of the OSH Act. As discussed in the
Legal Authority section, above, Congress stated clearly that the OSHA
recordkeeping system was intended to capture "work-related deaths,
injuries and illnesses, other than minor injuries requiring only first
aid treatment and which do not involve medical treatment, loss of
consciousness, restriction of work or motion, or transfer to another
job" (§ 8(c)(2)) (emphasis added). The words "disabling, serious,
and significant," suggested by NAM, are at variance with Congress' clear
intent. OSHA concludes that the guidance given by Congress -- that employers
should record and report on work-related deaths, and on injuries and
illnesses other than minor injuries, establishes the appropriate recording
threshold for cases entered into the OSHA recordkeeping system. A
few commenters recommended that OSHA delete paragraph (c) of the proposed
Purpose section (see, e.g., Exs. 25, 15: 305, 346, 348, 420), and in
the final rule, OSHA has done so because the paragraph merely attested to
OSHA's cooperation with other agencies on this rule. Although the rule has,
in fact, been developed in cooperation with the Department of Health and
Human Services, and specifically with the National Institute for Occupational
Safety and Health (NIOSH), there is no need to include this information in
the regulatory text itself. Subpart B. Scope The
coverage and partial exemption provisions in Subpart B of the final rule
establish which employers must keep OSHA injury and illness records at all
times, and which employers are generally exempt but must keep records under
specific circumstances. This subpart contains sections 1904.1 through 1904.3
of the final rule. OSHA's
recordkeeping rule covers many employers in OSHA's jurisdiction but continues
to exempt many employers from the need to keep occupational injury and
illness records routinely. This approach to the scope of the rule is
consistent with that taken in the former recordkeeping rule. Whether a
particular employer must keep these records routinely depends on the number
of employees in the firm and on the Standard Industrial Classification, or
SIC code, of each of the employer's establishments. Employers with 10 or
fewer employees are not required to keep OSHA records routinely. In addition,
employers whose establishments are classified in certain industries are not
required to keep OSHA records under most circumstances. OSHA refers to
establishments exempted by reason of size or industry classification as
"partially exempt," for reasons explained below. The
final rule's size exemption and the industry exemptions listed in
non-mandatory Appendix A to Subpart B of the final rule do not relieve
employers with 10 or fewer employees or employers in these industries from all
of their recordkeeping obligations under 29 CFR Part 1904. Employers
qualifying for either the industry exemption or the employment size exemption
are not routinely required to record work-related injuries and illnesses
occurring to their employees, that is, they are not normally required to keep
the OSHA Log or OSHA Form 301. However, as sections 1904.1(a)(1) and 1904.2
of this final recordkeeping rule make clear, these employers must still
comply with three discrete provisions of Part 1904. First, all employers
covered by the Act must report work-related fatalities or multiple
hospitalizations to OSHA under § 1904.39. Second, under § 1904.41, any
employer may be required to provide occupational injury and illness reports
to OSHA or OSHA's designee upon written request. Finally, under § 1904.42,
any employer may be required to respond to the Survey of Occupational
Injuries and Illnesses conducted by the Bureau of Labor Statistics (BLS) if
asked to do so. Each of these requirements is discussed in greater detail in
the relevant portion of this summary and explanation. Section 1904.1 Partial Exemption for Employers With 10 or Fewer
Employees In
§ 1904.1 of the final rule, OSHA has retained the former rule's size-based
exemption, which exempts employers with 10 or fewer employees in all
industries covered by OSHA from most recordkeeping requirements. Section
1904.1, "Partial exemption for employers with 10 or fewer
employees," states that: (a)
Basic requirement. (1)
If your company had ten (10) or fewer employees at all times during the last
calendar year, you do not need to keep OSHA injury and illness records unless
OSHA or the BLS informs you in writing that you must keep records under §
1904.41 or § 1904.42. However, as required by § 1904.39, all employers
covered by the OSH Act must report to OSHA any workplace incident that
results in a fatality or the hospitalization of three or more employees. (2)
If your company had more than ten (10) employees at any time during the last
calendar year, you must keep OSHA injury and illness records unless your
establishment is classified as a partially exempt industry under § 1904.2. (b)
Implementation. (1)
Is the partial exemption for size based on the size of my entire company or
on the size of an individual business establishment? The
partial exemption for size is based on the number of employees in the entire
company. (2)
How do I determine the size of my company to find out if I qualify for the
partial exemption for size? To
determine if you are exempt because of size, you need to determine your
company's peak employment during the last calendar year. If you had no more
than 10 employees at any time in the last calendar year, your company
qualifies for the partial exemption for size. The
Size-Based Exemption in the Former Rule The
original OSHA injury and illness recording and reporting rule issued in July
1971 required all employers covered by the OSH Act to maintain injury and
illness records. In October 1972, an exemption from most of the recordkeeping
requirements was put in place for employers with seven or fewer employees. In
1977, OSHA amended the rule to exempt employers with 10 or fewer employees,
and that exemption has continued in effect to this day. All employers,
however, have always been required to report fatalities and catastrophes to
OSHA and to participate in the BLS survey, if requested to do so. As
discussed in the Legal Authority section of this preamble, the 10 or fewer
employee threshold is consistent with Congressional intent: the 1977 Federal
Register notice announcing the new exemption cited the Department of
Labor appropriations acts for fiscal years 1975 and 1976, which exempted
employers having 10 or fewer employees from most routine recordkeeping
requirements, and Section 8(d) of the Act, as the major reasons for raising
the exemption size threshold from seven to 10 employees. The 1977 Notice
stated that the new size threshold appropriately balanced the interest of
small businesses while preserving the essential purposes of the recordkeeping
scheme: The
[exemption] has been carefully designed to carry out the mandate of section
8(d) without impairing the Act's basic purpose. Thus, the [exemption] will
not diminish the protections afforded employees under the Act because all
employers * * * remain subject to the enforcement provisions of the Act. The
[exemption] will continue to require * * * small employers * * * to report
fatalities and multiple hospitalizations and to participate in the BLS annual
survey when selected to do so (42 FR 38568 (July 29, 1977)). The
Size-Based Exemption in the Final Rule The
final rule published today maintains the former rule's partial exemption for
employers in all covered industries who have 10 or fewer employees. Under the
final rule (and the former rule), an employer in any industry who employed no
more than 10 employees at any time during the preceding calendar year is not
required to maintain OSHA records of occupational illnesses and injuries
during the current year unless requested to do so in writing by OSHA (under §
1904.41) or the BLS (under § 1904.42). If an employer employed 11 or more
people at a given time during the year, however, that employer is not
eligible for the size-based partial exemption. The
Size-Based Exemption in the Proposed Rule In
the 1996 proposal, OSHA contemplated raising the threshold for the size-based
exemption to 19 employees for all employers except those in the construction
industry. In proposing this more extensive exemption, OSHA stated that BLS
Annual Survey data appeared to indicate that small businesses in this size
category had proportionately fewer injuries and illnesses and were thus safer
places to work. However, since the proposal, OSHA has analyzed the record
evidence on this point and now believes that small businesses are not
generally likely to be less hazardous than larger businesses and, in fact,
are likely, as a general matter, to be more hazardous than large businesses.
OSHA's reasoning is described below. Comments
to the record make clear that the recording of fewer injuries and illnesses
by very small firms could have many causes other than a lower level of
hazards. For example, the National Institute for Occupational Safety and
Health (NIOSH) submitted a comment to the record that described numerous
studies based on fatality and workers' compensation data that suggest that
smaller businesses are at least as hazardous as larger businesses (Ex. 15:
407). NIOSH also argued that the BLS estimated injury and illness incidence
rates for small employers may be erroneously low, i.e., may be the result of
underreporting rather than a lower injury rate. The following comment from
NIOSH explains these concerns: From
a public standpoint, NIOSH does not support a partial exemption from
recordkeeping requirements for employers in the construction industry with 10
or fewer employees, and non-construction employers with 19 or fewer
employees. Research indicates significant safety and health problems in
"small" establishments which employ a substantial proportion of the
workforce. One-quarter of the civilian, full-time workforce is employed in
establishments with fewer than 25 employees (Oleinick et al. 1995). The
Occupational Safety and Health Administration (OSHA) notes [in the proposal
to the recordkeeping rule] that "the Annual Survey data show that small
employers generally experience much lower patterns of injuries and illnesses
than medium size firms." However, recent literature comparing Annual
Survey data and workers compensation data questions the validity of the
estimated rates for small employers obtained through the Bureau of Labor
Statistics (BLS) Annual Survey. Moreover, fatal and nonfatal work injuries
are a significant risk among small businesses in hazardous industries and
many industries with high fatal and nonfatal injury rates are comprised
primarily of small companies. In addition, NIOSH research indicates that
small companies have less access to safety and health programs that might
reduce injuries and illnesses than larger companies [NIOSH 1988a]. Though
the Annual Survey of Occupational Injuries and Illnesses has consistently
reported that employers with fewer than 20 employees have significantly lower
rates of injuries and illnesses, there is concern that these low incidence
rates are an artifact of the reporting system. Analysis of compensable
injuries with >7 missed workdays in Michigan indicates that the pattern of
lower injury rates among small employers is not consistent across industry
divisions. Though the services and trade industry divisions show a marked
decline in compensable injury rate for small size firms, the higher risk
industries of construction and transportation/utilities show relatively
little decline in the compensable injury rate for employers with fewer than
25 employees. Comparison of the demographic characteristics of the Michigan
work force with the demographic characteristics of injured workers suggest
that high risk groups (e.g., males, younger workers [<35 years of
age], construction, manufacturing, transportation, and blue collar workers)
are over-represented among workers injured in small size firms (<25
workers). Using cumulative lost work time as a surrogate for severity of
injury, the Michigan study also found that with one exception (construction),
compensable injuries to workers in small firms were at least as serious as
compensable injuries in larger firms [Oleinick et al. 1995] (Ex. 15: 407). Since
publication of the recordkeeping proposal, OSHA has done considerable
research into the issue of fatality, injury, and illness rates in small
companies. The results of this research also point to underreporting, rather
than safer workplaces, as a likely reason for the lower-than-average injury
and illness numbers reported by small employers. The most telling evidence
that injury and illness underreporting is prevalent among small firms is the
substantial discrepancy between the fatality rates in these firms and their
injury and illness rates. Most
professionals agree that occupational fatality data are more reliable than
occupational injury and illness data, primarily because fatalities are more
likely to be reported than injuries. The work-related BLS fatality data
appear to confirm this belief, showing that although businesses with fewer
than 10 employees account for only 4% of the total workforce, they account
for 28% of occupational fatalities. Furthermore, although businesses with
fewer than 20 employees comprise only 26% of the total workforce, they
account for 36% of all occupational fatalities (see Mendeloff, "Using
OSHA Accident Investigations to Study Patterns in Work Fatalities," J.
Occup. Med 32: 1117, 1119 (1990) (Ex. 15: 407 F)). These data strongly suggest that
very small businesses are disproportionately hazardous places to work. Many
safety and health professionals also believe that injuries and illnesses are
substantially underreported by small employers (see, e.g., Exs. 4, 5,
15: 407). However, the occupational injury and illness data reported by
employers to the BLS in connection with its Annual Survey of Occupational
Injuries and Illnesses show lower rates of injuries and illnesses for firms
in the smallest size classes than for those in larger classes. In an effort
to understand why smaller firms might have lower injury and illness incidence
rates, the authors of one study found that: (1) occupational fatality rates
were highest in businesses with fewer than 50 employees; (2) businesses with
fewer than 50 employees were least likely to have occupational health
services available; and (3) lost workday injury rates in several major
industry categories are highest (i.e., the injuries are most severe) in these
facilities. From these findings, the authors concluded: It
is difficult to imagine a set of workplace conditions in small establishments
that would lead simultaneously to lower injury rates, higher fatality rates,
and equal, or greater, injury severity measured by missed work time,
especially since these establishments were less likely to provide injury
prevention and safety services (Oleinick et al., "Establishment
Size and Risk of Occupational Injury," Am. J. Med. 28(1): 2-3
(1995) (Ex. 15: 407 N)). After
considering a number of explanations that might explain this apparent
incongruity, these authors rejected all explanations except one -- underreporting
by small firms: With
the rejection of alternative explanations, there is a strong likelihood of
underreporting as the explanation, and we estimate that the annual [BLS]
survey substantially undercounts injuries in small establishments (Oleinick
et al., 1995 (Ex. 15: 407 N)). NIOSH
agrees, noting that "recent literature comparing Annual Survey data and
workers compensation data questions the validity of the estimated rates for
small employers obtained through the BLS Annual Survey" (Ex.15: 407).
Thus, the apparent discrepancy between the high fatality rate in the smallest
firms (i.e., those with fewer than 20 employees) and the low rates of
injuries and illnesses reported by those same firms is likely to be the
result of underreporting rather than lower relative hazards. A
Wall Street Journal (Feb. 3, 1994) computer analysis of more than
500,000 Federal and State safety-inspection records came to the same
conclusions, i.e., that employees of small businesses are at greater risk of
exposure to workplace hazards than employees of larger businesses, and that
BLS data for small firms seriously understate injuries and illnesses in such
firms. From 1988 through 1992, the analysis found an incidence of 1.97 deaths
per 1,000 workers at workplaces with fewer than 20 employees, compared with
an incidence of just 0.004 deaths per 1,000 workers at workplaces with more
than 2,500 workers. Thus, an employee's risk of death was approximately 500
times higher at the smallest businesses compared with the risk at the largest
businesses. Similarly, while one in six employees at small businesses worked
in an area cited for a serious safety violation, only one in 600 did so at
the largest businesses. This means that employees in small businesses are 100
times more likely to be exposed to a serious hazard at work than those in the
largest businesses, a finding that is consistent with the higher fatality
rates in very small workplaces (Wall Street Journal, February 3,
1994). In
the final rule, OSHA has decided to continue the Agency's longstanding
practice of partially exempting employers with 10 or fewer employees from
most recordkeeping requirements, but not to extend the exemption to
non-construction businesses with 19 or fewer employees, as was proposed. OSHA
has determined that increasing the number of employers partially exempted is
not in the best interests of the safety and health of their employees. First,
as NIOSH's comments (Ex. 15: 407), the Oleinick et al. study (1995), the
Mendeloff article (1990), and the Wall Street Journal study (1994) all
indicate, businesses with 20 or fewer employees tend to be relatively
hazardous places to work, and their employees have a disproportionately high
risk of work-related death. Second, as NIOSH and others point out, there is
reason to believe that these very small workplaces also experience
disproportionately high numbers of injuries and illnesses, and that the BLS
statistics for these workplaces substantially underreport the extent of
job-related incidents at these establishments (Ex. 15: 407, Oleinick et al.
1995, Wall Street Journal 1994 (Ex. 15: 407 N). Finally, under the 10
or fewer employee partial exemption threshold, more than 80% of employers in
OSHA's jurisdiction are exempted from routinely keeping records. Increasing
the threshold for the size exemption would deprive even more employers and
employees of the benefits of the information provided by these injury and
illness records and reduce the number of establishments where the records can
be of use to the government during an on-site visit. OSHA also believes that
keeping the OSHA Log and Incident Report is important for national
statistical purposes. Size
Exemption Threshold for Construction Companies The
final rule also retains the former rule's size exemption threshold (10 or
fewer employees) for construction employers. OSHA proposed separate size
thresholds for construction and nonconstruction firms, i.e., the Agency
proposed to exempt firms in construction with 10 or fewer employees and
non-construction firms with 19 or fewer employees from routine recordkeeping
requirements. Comments on this aspect of the proposal were mixed. Some
commenters agreed that OSHA should continue the exemption for construction
employers with ten or fewer employees (see, e.g., Exs. 15: 145, 170,
197, 288). Other commenters urged that employers in the construction industry
not be exempted from recordkeeping at all (see, e.g., Exs. 15: 62, 74,
414). For example, Robert L. Rowan, Jr. stated that: [s]mall
contractors often lack adequate safety knowledge, programs and safeguards to
prevent injuries and illnesses. I believe that data obtained from these small
contractors will point to a trend that these employees have a relatively high
frequency of injuries that are related to tasks involving construction work
such as excavations and fall hazards. I suggest that there be no exemptions
for recordkeeping for any construction employer (Ex. 15: 62). Other
commenters asked OSHA to use a single size threshold for employees in all
industries and to raise the size exemption threshold to more than 19
employees across the board (see, e.g., Exs. 15: 67, 304, 312, 344,
437). For example, the Sheet Metal and Air Conditioning Contractors' National
Association (SMACNA) remarked: The
recordkeeping standard is considered to be a horizontal standard, which by
definition, means that it covers all industries. SMACNA members own and
operate sheet metal fabrication shops where they design and create the
products which are then installed in the construction process, including duct
work and all types of specialty and architectural sheet metal. Sheet metal
fabrication shops fall under the manufacturing classification and are
therefore subject to general industry standards. SMACNA contractors also
construct with the components that they fabricate. Therefore, as contractors
they must also comply with the OSHA standards for construction. OSHA's
arbitrary two tier record keeping requirement will cause confusion among
SMACNA contractors as to which classification they are under and when they
have to maintain records. With the volumes of regulations that contractors
already must comply with, it is only logical that if OSHA truly wishes to
simplify its recordkeeping requirements it would create a uniform standard
for all industries. * * * SMACNA
urges OSHA to create a uniform horizontal standard and increase the exemption
for the construction industry to cover employers with 19 or fewer employees
(Ex. 15: 116). After
a review of the record and reconsideration of this issue, OSHA agrees that
there should be only one size exemption threshold across all industries and
finds that the threshold should be 10 or fewer employees. This threshold
comports both with longstanding Agency practice and Congressional intent.
Further, as discussed above, OSHA finds that extending this threshold to
include firms with 11 to 19 employees is not warranted by the evidence. Firms
in this size range have a disproportionately large number of fatalities, and
their lower reported injury and illness rates are likely to be the result of
underreporting rather than fewer hazards. Thus, companies in this size class
need the information their OSHA records provide to improve conditions in
their workplaces and to protect their employees from job-related injuries,
illnesses, and deaths. Likewise, OSHA does not believe that it would be
appropriate to remove the partial exemption for construction employers with
10 or fewer employees, as some commenters suggested (see, e.g., Exs.
15: 67, 304, 312, 344, 437). Using the same size threshold for all
OSHA-covered industries also makes the rule simpler and is more equitable
from industry to industry. Comments
on Raising the Size-Based Exemption Many
commenters supported raising the size-based exemption threshold (see, e.g.,
Exs. 27, 15: 26, 27, 67, 102, 123, 145, 170, 173, 182, 198, 247, 288, 304,
359, 375, 378, 392, 401, 437). For example, the American Society of Safety
Engineers (ASSE) remarked: ASSE
supports exempting businesses under twenty (20) employees from the standard
with some specific industry exemptions. Enforcing this regulation for
businesses of less than twenty (20) employees would be detrimental to small
business from the recordkeeping/ bureaucracy perspective, and may not
generate any significant data. ASSE wishes to clarify, however, that this
position should not be interpreted to mean that small businesses should be
exempted from safety and health laws. We believe that all employees are
entitled to an equal level of safety and health regardless of the size of
their place of employment. Exempting a paperwork requirement does not change
this level of commitment (Ex. 15: 182). Two
commenters suggested that OSHA use an even higher threshold for determining
the size-based exemption (Exs. 15: 357, 408). The Synthetic Organic Chemical
Manufacturers Association (SOCMA) stated "* * * SOCMA believes that OSHA
should modify the small employer exemption by increasing it to 40 employees.
This alternative approach would reduce the employer paperwork burden while
improving the accuracy of injury and illness information" (Ex. 15:357).
Similarly, the American Dental Association (ADA) commented "The ADA
suggests that OSHA expand the proposed exemption from 'fewer than 20
employees' to 'fewer than 25 employees.' This would bring the small-employer
exception into conformity with many federal and state employment laws. It
would also serve as a more reasonable dividing line between small employers
and others" (Ex. 15:408). Some
commenters, however, objected to OSHA's proposed exemption of employers in
the 11 to 20 employee size range (see, e.g., Exs. 15:62, 369, 379,
407, 415, 418). Among these was the International Brotherhood of Teamsters
(IBT), which stated: IBT
maintains the importance of recording of all occupational injuries and
illnesses. For that same reason, International Brotherhood of Teamsters does
not support increasing the trigger for non-construction employers from ten to
nineteen employees. Although injuries due to preventable causes occur in all
types and sizes [of businesses], a disproportionately high number of
fatalities occur in the smallest businesses. According to an analysis of BLS
and OSHA data, then assistant secretary of labor, Joe Dear, told the House of
Representative's Small Business Committee, "Businesses with fewer than
eleven workers account for 33 percent of all fatalities even though they
account for less than 20 percent of employees." According to a study by
the National Federation of Independent Businesses, "generally businesses
with fewer employees do less to improve safety than those with more."
Large corporations can afford the full-time services of a safety engineer and
industrial hygienist, whereas often small firms cannot. IBT contends that it
is up to OSHA to protect the workers and institute prevention measures. The
use of required recordkeeping of data helps to reach that aim by providing
hard data. If the data is going to be used as a prevention tool, it must be
collected from the entire workforce not just a subgroup (Ex. 15:369). Reliance
on a single size exemption threshold also addresses the point made by SMACNA:
that many small employers perform construction work and also manufacture
products and would therefore be uncertain, if the rule contained two size
exemption thresholds, as to whether they are required to keep records or not. OSHA's
proposed rule stated that the size exemption would apply to employers based
on the number of employees employed by the employer "for the entire
previous calendar year." The Office of Advocacy of the Small Business
Administration (SBA) observed (Ex. 15:67, p. 4) that this statement could be
interpreted in various ways, and expressed concern that it could be taken to
refer to the total number of employees who had been employed at one time or
another during the year rather than the total employed at any one time of the
year. The SBA office recommended that OSHA provide clearer guidance. OSHA
agrees with the SBA that the proposed regulatory language was ambiguous.
Accordingly, the final rule clarifies that the 10 or fewer size exemption is
applicable only if the employer had fewer than 11 employees at all times
during the previous calendar year. Thus, if an employer employs 11 or more
people at any given time during that year, the employer is not eligible for
the small employer exemption in the following year. This total includes all
workers employed by the business. All individuals who are
"employees" under the OSH Act are counted in the total; the count
includes all full time, part time, temporary, and seasonal employees. For businesses
that are sole proprietorships or partnerships, the owners and partners would
not be considered employees and would not be counted. Similarly, for family
farms, family members are not counted as employees. However, in a
corporation, corporate officers who receive payment for their services are
considered employees. Consistent
with the former rule, the final rule applies the size exemption based on the
total number of employees in the firm, rather than the number of employees at
any particular location or establishment. Some commenters suggested that the
size exemption should be based on the number of employees in each separate
establishment rather than the entire firm (see, e.g., Exs. 15: 67,
201, 437). For example, Caterpillar Inc. (Ex. 15: 201) noted: We
do object to the note to [proposed] paragraph 1904.2(b)(2) which bases size
exemptions on the total number of employees in a firm rather than the
establishment size. Size exemptions must be based upon individual
establishment size. The factors that make recordkeeping difficult and
unproductive for small facilities are not eliminated by adding small
facilities together. Small facilities are usually unique and adding together
the injury and illness experience of different small facilities will not produce
a valid database for accident analysis or accident prevention planning.
Injury and illness data collection is difficult because of small facility
size and lack of recordkeeping expertise and resources. The benefits of
collecting information in small facilities does not justify the costs. It is
illogical to base the size exemption on anything other than the size of each
separate establishment. OSHA
does not agree with this comment because the resources available in a given
business depend on the size of the firm as a whole, not on the size of
individual establishments owned by the firm. In addition, the analysis of
injury records should be of value to the firm as a whole, regardless of the
size of individual establishments. Further, an exemption based on individual
establishments would be difficult to administer, especially in cases where an
individual employee, such as a maintenance worker, regularly reports to work
at several establishments. Section 1904.2 Partial Exemption for Establishments in Certain
Industries Section
1904.2 of the final rule partially exempts employers with establishments
classified in certain lower-hazard industries. The final rule updates the
former rule's listing of partially exempted lower-hazard industries.
Lower-hazard industries are those Standard Industrial Classification (SIC)
code industries within SICs 52-89 that have an average Days Away, Restricted,
or Transferred (DART) rate at or below 75% of the national average DART rate.
The former rule also contained such a list based on data from 1978-1980. The
final rule's list differs from that of the former rule in two respects: (1)
the hazard information supporting the final rule's lower-hazard industry
exemptions is based on the most recent three years of BLS statistics (1996,
1997, 1998), and (2) the exception is calculated at the 3-digit rather than
2-digit level. The
changes in the final rule's industry exemptions are designed to require more
employers in higher-hazard industries to keep records all of the time and to
exempt employers in certain lower-hazard industries from keeping OSHA injury
and illness records routinely. For example, compared with the former rule,
the final rule requires many employers in the 3-digit industries within
retail and service sector industries that have higher rates of occupational
injuries and illnesses to keep these records but exempts employers in 3-digit
industries within those industries that report a lower rate of occupational
injury and illness. Section 1904.2 of the final rule, "Partial exemption
for establishments in certain industries," states: (a)
Basic requirement. (1)
If your business establishment is classified in a specific low hazard retail,
service, finance, insurance or real estate industry listed in Appendix A to
this Subpart B, you do not need to keep OSHA injury and illness records
unless the government asks you to keep the records under § 1904.41 or §
1904.42. However, all employers must report to OSHA any workplace incident
that results in a fatality or the hospitalization of three or more employees
(see § 1904.39). (2)
If one or more of your company's establishments are classified in a
non-exempt industry, you must keep OSHA injury and illness records for all of
such establishments unless your company is partially exempted because of size
under § 1904.1. (b)
Implementation. (1)
Does the partial industry classification exemption apply only to business
establishments in the retail, services, finance, insurance or real estate
industries (SICs 52-89)? Yes.
Business establishments classified in agriculture; mining; construction;
manufacturing; transportation; communication, electric, gas and sanitary
services; or wholesale trade are not eligible for the partial industry
classification exemption. (2)
Is the partial industry classification exemption based on the industry
classification of my entire company or on the classification of individual
business establishments operated by my company? The
partial industry classification exemption applies to individual business
establishments. If a company has several business establishments engaged in
different classes of business activities, some of the company's
establishments may be required to keep records, while others may be exempt. (3)
How do I determine the Standard Industrial Classification code for my company
or for individual establishments? You
determine your Standard Industrial Classification (SIC) code by using the
Standard Industrial Classification Manual, Executive Office of the President,
Office of Management and Budget. You may contact your nearest OSHA office or
State agency for help in determining your SIC. Employers
with establishments in those industry sectors shown in Appendix A are not
required routinely to keep OSHA records for their establishments. They must,
however, keep records if requested to do so by the Bureau of Labor Statistics
in connection with its Annual Survey (section 1904.42) or by OSHA in
connection with its Data Initiative (section 1904.41). In addition, all
employers covered by the OSH Act must report a work-related fatality, or an
accident that results in the hospitalization of three or more employees, to
OSHA within 8 hours (section 1904.39). In
1982, OSHA exempted establishments in a number of service, finance and retail
industries from the duty to regularly maintain the OSHA Log and Incident
Report (47 FR 57699 (Dec. 28, 1982)). This industry exemption to the Part
1904 rule was intended to "reduce paperwork burden on employers without
compromising worker safety and health." The
1982 list of partially exempt industries was established by identifying lower
hazard major industry groups in the SIC Divisions encompassing retail trade,
finance, insurance and real estate, and the service industries (SICs 52-89).
Major industry groups were defined as the 2-digit level industries from the
SIC manual published by the U.S. Office of Management and Budget (OMB).
Industries in these major industry groups were partially exempted from
coverage by Part 1904 if their average lost workday injury rate (LWDI) for
1978-80 was at or below 75% of the overall private sector LWDI average rate
for that year. Industries traditionally targeted for OSHA enforcement (those
in SICs 01 through 51, comprising the industry divisions of agriculture,
construction, manufacturing, transportation and public utilities, mining, and
wholesale trade) remained subject to the full recordkeeping requirements.
Although the 1982 Federal Register notice discussed the possibility of
revising the exempt industry list on a routine basis, the list of partially
exempt industries compiled in 1982 has remained unchanged until this revision
of the Part 1904 rule. The
proposed rule would have updated the industry exemption based on more current
data, and would have relied on 3-digit SIC code data to do so. The only change
from the former rule taken in the proposal would have been reliance on LWDI
rates for industries at the 3-digit, rather than 2-digit, level. Evaluating
industries at the 3-digit level allows OSHA to identify 3-digit industries
with high LWDI rates (DART rates in the terminology of the final rule) that
are located within 2-digit industries with relatively low rates. Conversely,
use of this approach allows OSHA to identify lower-hazard 3-digit industries
within a 2-digit industry that have relatively high LWDI (DART) rates. Use of
LWDI (DART) rates at the more detailed level of SIC coding increases the
specificity of the targeting of the exemptions and makes the rule more
equitable by exempting workplaces in lower-hazard industries and requiring
employers in more hazardous industries to keep records. Under
the proposal, based on their LWDI (DART) rates, the following industries
would have been required to keep records for the first time since 1982: SIC
553 Auto and Home Supply Stores SIC
555 Boat Dealers SIC
571 Home Furniture and Furnishings Stores SIC
581 Eating Places SIC
582 Drinking Places SIC
596 Nonstore Retailers SIC
598 Fuel Dealers SIC
651 Real Estate Operators and Lessors SIC
655 Land Subdividers and Developers SIC
721 Laundry, Cleaning, and Garment Services SIC
734 Services to Dwellings and Other Buildings SIC
735 Miscellaneous Equipment Rental and Leasing SIC
736 Personnel Supply Services SIC
833 Job Training and Vocational Rehabilitation Services SIC
836 Residential Care SIC
842 Arboreta and Botanical or Zoological Gardens, and SIC
869 Membership Organizations Not Elsewhere Classified The
following industries would have been newly exempted by the proposal: SIC
525 Hardware Stores SIC
752 Automobile Parking SIC
764 Reupholstery and Furniture Repair SIC
793 Bowling Centers SIC
801 Offices and Clinics of Doctors of Medicine SIC
807 Medical and Dental Laboratories, and SIC
809 Miscellaneous Health and Allied Services, Not Elsewhere Classified In
the Issues section of the preamble to the proposed rule, OSHA asked the
public to comment on the appropriateness of the proposed exemption procedure,
and on whether or not OSHA should expand this approach to industries in SICs
01 through 51. The Agency also asked for alternative approaches that would
reduce employer paperwork burden while retaining needed injury and illness
information, and for estimates of the costs and benefits associated with
these alternatives. OSHA notes that the final rule is based on the most
recent data available (1996-1998). Although it has relied on the
methodologies proposed (3-digit SIC codes, industries below 75% of the
national average LWDI rate), there have been a few shifts in the industries
proposed to be covered and those actually covered by the final rule. Thus
this final rule will continue to exempt eating and drinking places (SICs 581
and 582) but will not exempt automobile parking (SIC 752). Comments
on the Proposed Industry Exemptions A
number of commenters supported OSHA's proposal to apply the 1982 exemption
criteria to the service and retail industries at the three-digit SIC level
(see, e.g., Exs. 27; 15: 26, 199, 229, 247, 272, 299, 359, 375, 378,
392). However, a number of commenters opposed any exemptions from the Part
1904 requirements on the basis of industry classification (see, e.g.,
Exs. 15: 9, 13, 31, 62, 78, 83, 129, 153, 154, 163, 186, 197, 204, 234, 350,
379, 399, 414). The International Paper Company explained its reasons for
opposing industry exemptions as follows: Exempting
employers with low incidence rates is inconsistent with a major objective of
the recordkeeping rules; specifically, measuring the magnitude of
work-related injuries and illnesses. Exemption of specific industrial
classifications or small employers may bias statistics which are used by OSHA
for identifying industries for inspections. These exemptions may also impact
statistics related to less traditional, but increasingly more frequent
exposures such as bloodborne pathogens, tuberculosis, motor vehicle incidents
or workplace violence. Exempting
employers with low incidence rates does not provide any measurable relief
from paperwork requirements. Time spent on recordkeeping is primarily
dedicated to decision making regarding work relationship and recordability,
not actual Log entries or completing supplemental reports. Simplifying the
decision making process is the best way to reduce the burden of
recordkeeping, not exempting employers (Ex. 15:399). The
Service Employees International Union (SEIU) agreed: Injury
and illness recordkeeping is the most basic step an employer must take in
order to begin to address workplace hazards. Responsible employers recognize
that injury and illness records are a useful tool for development of sound
company safety and health programs. This information is also critical to the
workers themselves, by raising awareness about how and where people are
getting hurt, they in turn use this information to work to eliminate the
causes of such injuries and illnesses. Therefore it is disturbing that in the
proposed revised standard, there still exist industry exemptions for
recordkeeping and reporting. Prior to 1983, all employers covered by OSHA
with more than ten employees were required to maintain injury and illness
records. *
* * SEIU believes that such exemptions are unwarranted and violate the
specific language of the Occupational Safety and Health Act. * * * The Act
does not provide for excluding entire classes of occupationally injured and
sick workers. Furthermore, little recordkeeping will be required for industries
that are safe and experience low rates of injuries and illnesses. It is
critical that OSHA require recordkeeping for all industries, especially since
many previously exempt sectors now experience increasing rates of injury and
illness. Many of these industry sectors are also dramatically expanding --
therefore, continued recordkeeping is even more critical (Ex. 15:379). The
National Safety Council (Ex. 15:359) cautioned: From
the point of view of injury and illness prevention. * * * an establishment
that does not track its injury and illness experience cannot effectively
administer a prevention program. * * * Although
OSHA encourages employers to track the occupational injuries and illnesses
occurring among their employees and agrees that doing so is important for
safety and health prevention efforts, OSHA has decided in the final rule to
continue the long-established practice of exempting employers in industries
with lower average lost workday incidence rates from most OSHA recordkeeping
requirements but to tie the exemption as closely as possible to specific
3-digit SIC code data. Accordingly,
non-mandatory Appendix A of the final rule identifies industries for
exemption at the 3-digit SIC code level. Although this approach does make the
list of exempt industries longer and more detailed, it also targets the
exemption more effectively than did the former rule's list. For example, the
final rule does not exempt firms in many of the more hazardous 3-digit SIC
industries that are embedded within lower rate 2-digit SIC industries. It
does, however, exempt firms in relatively low-hazard 3-digit SIC industries,
even though they are classified in higher hazard 2-digit SIC industries.
Where Days Away, Restricted, or Transferred (DART, formerly LWDI) rate
calculations exempt all of the 3-digit SIC industries within a given 2-digit
industry, the exempt industry list in Appendix A displays only the 2-digit
SIC classification. This approach merely provides a shorter, simpler list. For
multi-establishment firms, the industry exemption is based on the SIC code of
each establishment, rather than the industrial classification of a firm as a
whole. For example, some larger corporations have establishments that engage
in different business activities. Where this is the case, each establishment
could fall into a different SIC code, based on its business activity. The
Standard Industrial Classification manual states that the establishment,
rather than the firm, is the appropriate unit for determining the SIC code.
Thus, depending on the SIC code of the establishment, one establishment of a
firm may be exempt from routine recordkeeping under Part 1904, while another
establishment in the same company may not be exempt. Several
commenters suggested that OSHA use an alternate method for determining
exemptions (see, e.g., Exs. 15: 97, 201, 359). The National Safety
Council (Ex. 15: 359), for example, urged OSHA to "evaluate other
exemption procedures before incorporating one into proposed section
1904.2." OSHA
has evaluated other approaches but has decided that the 3-digit DART rate
method is both simpler and more equitable than the former 2-digit method. By
exempting lower-hazard industry sectors within SICs 52-89, OSHA hopes both to
concentrate its recordkeeping requirements in sectors that will provide the
most useful data and to minimize paperwork burden. No exemption method is
perfect: any method that exempts broad classes of employers from
recordkeeping obligations will exempt some more hazardous workplaces and
cover some less hazardous workplaces. OSHA has attempted to minimize both of
these problems by using the most current injury and illness statistics
available, and by applying them to a more detailed industry level within the
retail, financial and service sectors than was formerly the case. OSHA has
also limited the scope of the exemptions by using an exemption threshold that
is well below the national average, including only those industries that have
average DART rates that are at or below 75% of the national average DART rate.
The rule also limits the exempt industries to the retail, financial and
service sectors, which are generally less hazardous than the manufacturing
industry sector. The
Orlando Occupational Safety and Health Customer Council asked: "What is
the criteria for exemptions? For example, large auto dealers who also perform
auto repair work are exempt, while smaller auto repair shops are not exempt.
Why not classify the organization by the most hazardous occupation [within
that organization]?" (Ex. 15: 97). In
response to this query, OSHA notes that the exemption procedure is reasonably
straightforward, as the following example illustrates: the automobile dealer
industry is exempt because its DART rate, as indicated by its average over
three years of BLS data, is below 75% of the national average rate.
Automobile repair shops are not exempted, however, because their rate is
higher than the 75% cutoff. If OSHA were to base its recordkeeping
requirements on the most hazardous occupation within a given industry, assuming
that occupation-specific within-industry injury and illness data were
available, as this commenter suggests, the number of establishments in
individual industries that would have to keep records would greatly increase.
This is because even relatively safe industries have some number of employees
who engage in relatively hazardous occupations. For example, workers who
transport currency, coins, and documents for banks and other financial
institutions are engaged in a fairly hazardous occupation. They may be
injured in many different ways, ranging from highway accidents, to lifting of
heavy parcels, to robberies. However, the experience of these few employees
within the industry does not accurately reflect the relative degree of hazard
confronting the vast majority of employees in the financial industries.
Although it is certainly not perfect, OSHA believes that the BLS lost workday
injury rate (DART rate) is a better comparative statistic than the injury
rate for a particular occupation because it reflects the risk to the average
worker within the particular industry. Moreover, while it is relatively easy
to classify employees according to occupation, it is unclear how to classify
individual employers with regard to detailed occupation, and OSHA is also not
aware of data that would permit such classification. The
Caterpillar Corporation (Ex. 15: 201) suggested that OSHA adjust the formula
used to determine which industries are exempted: You
propose to base your exemption on achieving less than 75% of the average
private sector lost workday injury rate; however, we would recommend
expanding the size of the exemption to include all industries below the
private sector average. We have no objection to your proposal to eliminate
the "nesting" problem within 2-digit SIC code groups, as long as
the exemption size is maximized. The recordkeeping paperwork burden for small
and relatively safe industries is significant and not justified based upon
the benefits received. OSHA
has decided in the final rule to continue to use a formula that will exempt
retail, finance and services industries from most recordkeeping requirements
if they have a Days Away, Restricted, or Transferred (DART) rate that is at
or below 75% of the national average rate. OSHA believes that the 75% threshold
will ensure that only industries with relatively low injury and illness rates
are exempted from these requirements. Using the national average DART rate,
rather than 75% of the national DART rate, as the threshold for exemption
purposes would exempt employers whose industries were merely average in terms
of their DART rate. OSHA
received many comments from firms in industries that have been exempt from
most OSHA recordkeeping requirements since 1982 but that would have been
required by the proposed rule to keep records. Most of these commenters
opposed their industry's inclusion within the scope of the proposed rule. For
example, several commenters from the restaurant industry objected to the fact
that SICs 581 and 582, eating and drinking places, would have been covered
(see, e.g., Exs. 15: 3, 4, 5, 6, 7, 8, 12, 20, 22, 55, 96, 125, 202,
311). The National Restaurant Association remarked: The
Association opposes elimination of this exemption on the bases that: --
the proposal, if promulgated, will cost eating and drinking establishments an
estimated $17 million in the first year alone; --
the additional recordkeeping obligations under the proposed rule duplicate
data already available to OSHA from other sources; and --
the current data does not justify removal of the partial recordkeeping
exemption for eating and drinking establishments (Ex. 15: 96). In
the final rule, the exemption for eating and drinking places is retained,
because the recent data indicate that these industries have DART rates that
are below 75% of the national rate. Two
commenters addressed the proposed removal of the exemption for SIC 553, auto
and home supply stores (Ex. 15: 367, 402). For example, the Automotive Parts
and Accessories Association (APAA) stated: The
vast majority of auto parts stores are similar to other retailers which would
still be exempt under this proposal. * * * [m]ore than three quarters of the
automotive parts retailers which are proposed to be saddled with the full Log
requirements would have little or no potential injury or illness experience
to justify the added mandate (Ex. 15: 367). Several
commenters discussed the proposed removal of the exemption for SIC 721,
laundry, dry cleaning and textile rental services (see, e.g., Exs. 15:
183, 244, 326). Typical of the views expressed by these commenters was the
comment of the Textile Rental Services Association of America (TRSA): TRSA
is strongly opposed to OSHA's proposal to eliminate the partial exemption
from recordkeeping and reporting requirements for laundry, cleaning, and
garments services for Standard Industrial Classification (SIC) 721. TRSA
believes that the proposed inclusion of the textile rental industry is
unjustified. Because the textile rental industry has historically been
proactive when it comes to workplace safety and has been 75% below the
industry average for lost work days, we contend that OSHA's plan to eliminate
the partial exemption from injury/illness recordkeeping requirements is
unwarranted (Ex. 15: 183). The
National Association of Home Builders (NAHB) commented on the proposed
inclusion in the recordkeeping system of a variety of industries closely
associated with the home building industry: As
a result of using a 3 digit Standard Industrial Classification (SIC),
"Real Estate Offices" (SIC 651) will now be required to report and
record injury and illness data if they have more than 19 workers during the
year. A cursory analysis of the hazards associated with real estate offices
seems to indicate limited exposure to high hazards (Ex. 15: 323). The
primary arguments put forth by these commenters are as follows: (1) The
occupational injury and illness data collected under Part 1904 are available
to OSHA from other sources; (2) OSHA's data requirements are burdensome; (3)
the use of even more current data would change the list of exempted
industries; and (4) some of the individual industries that would be covered
are relatively safe. In
response, OSHA notes that, although statistical information on average
work-related injury and illness rates in industries is available from the BLS
and other sources, information about the hazards present at specific
workplaces is not available to OSHA from those same sources. OSHA recognizes
that the maintenance of these records imposes some burden on businesses in
the form of paperwork. However, the benefits of keeping records are also
clearly substantial: informed employers can use the data to provide greater
protection for their employees and to receive the benefits that accrue from
prevention efforts in the form of fewer injuries and illnesses. In addition,
the records are useful to OSHA in the inspection process. OSHA also believes
that the process for selecting exempt industries must be as objective as
possible, and that exemptions must rely upon timely and objective information
about the safety and health experience of a given industry. The lost workday
injury rates published by the Bureau of Labor Statistics provide the most
consistent and reliable nationwide statistics available for this purpose, and
OSHA is therefore relying on these data. The 75% of the national rate cutoff
strikes a reasonable balance between collecting data likely to be useful and
avoiding unnecessary burden. OSHA has used the most recent data available at
this time in establishing the final list of partially exempt industries. OSHA
also has used data from a three-year period (1996-1998) rather than a
one-year period to reduce year-to-year variation in the data. Other
commenters argued that their industry should not be exempt because their
workplaces continue to pose risk to the workers in them. For example, the
American Nurses Association (ANA) opposed the partial exemption of doctor's
offices and health services: ANA
urges OSHA to remember the purpose of the Act, to protect the health and
safety of ALL workers, when deliberating on exempting employers from this
standard. As stated before, health care workers risk of exposure to injury
and illness is not limited to one setting. Therefore, the Standard Industrial
Classifications (SICs) 801 Offices and Clinics of Doctors of Medicine and SIC
809 Miscellaneous Health and Allied Services should not be exempt from this
standard (Ex. 15: 376). The
International Brotherhood of Teamsters (IBT) also argued against excluding
certain health care service industries: IBT
has concerns when the use of this analysis will grant partial exemptions to
SIC codes 801 (offices and clinics of doctors), 807 (medical and dental
offices), and 809 (miscellaneous health and allied services). All three of
these SIC codes are covered under other OSHA rules (such as the bloodborne
pathogen standard and ethylene oxide standard) and have medical surveillance
requirements to detect adverse health effects. OSHA should require that these
workplaces keep records of work related illnesses or injuries that occur.
Especially, since OSHA has already determined that there is a significant
risk of harm from exposures in these workplaces (Ex. 15: 369). OSHA
recognizes that workers in establishments that are exempt under the 75% DART
rate criterion will continue to be exposed to job-related hazards and to
experience workplace injuries and illnesses. However, because these
industries' overall injury rate is below the 75% cutoff, they qualify for
exemption, along with other financial, service and retail industries that
fall below that injury rate threshold. Exemption of an industry on the basis
of its lower-than-average DART rate does not mean that all establishments
within that industry have such rates or that workers in that industry will
not experience injuries and illnesses. The 1904 partial exemption does not
exempt employers from any other OSHA regulation or standard, so employees in
these industries will continue to benefit from the protection offered by the
OSHA standards. For example, while doctors' and dentists' offices are
partially exempt under the 1904 regulation, they are still required to comply
with the OSHA Bloodborne Pathogens Standard (29 CFR 1910.1030). Use of the
75% criterion merely provides a cutoff point, based on BLS injury and illness
rates, for different industry sectors. OSHA believes that it is appropriate
to use the 75% cutoff point because, in general, it is an appropriate overall
indicator of the relative hazard rank of an industry. OSHA recognizes that no
average across-establishment statistic can capture the injury and illness
experience of all occupations or establishments within that industry. For
some SIC codes, the BLS Annual Survey does not publish data at the
three-digit level. The survey is designed to provide data at the four-digit
level in the manufacturing industries and at the three-digit level in all
other industries, primarily because of budget constraints that limit the
amount of data the BLS can collect and process. However, the survey has other
publication criteria that make some of the data at this detailed level
unpublishable. Under the proposal, coverage would have been based on the
industry's LWDI rate. If a 3-digit sector did not have published data, OSHA
proposed to use the data for the two-digit industry group for that sector. One
3-digit sector affected by this approach was dental offices (SIC 802), which
the proposal would have covered because the entire 2-digit health care sector
has a relatively high injury and illness rate. The American Dental
Association (ADA) suggested that OSHA use an alternative approach to exempt
dentists from coverage rather than rely on a strict data protocol for making
the decision: [d]ental
offices are very much like physicians' offices in terms of size, scope of
activity, and degree of occupational health risk. For purposes of this
rulemaking, however, physicians' offices have been granted a categorical
exemption while dentists' offices (SIC Code 802) have not. Even dental
laboratories (SIC Code 807) have been granted a categorical exemption from
this rule, although it is unlikely that anyone would assert that dental
laboratories are safer and more healthful places to work than dental offices.
The ADA is unaware of any data suggesting that dental offices should be
treated differently than either physicians' offices or dental laboratories
(Ex. 15: 408). The
more recent data published by the BLS for the years 1996, 1997, and 1998
include specific estimates of the injury and illness experience for SIC 802
(dental offices) in that period. The dental office industry experienced a
3-year average rate of days away, restricted, or transferred injuries of 0.2
per 100 workers in those years, a rate well below 75% of the national
average. Therefore, the final rule exempts employers classified in SIC 802
from routine recordkeeping requirements. The
proposed rule would have removed SIC 736 (personnel supply services) from the
list of exempted industry sectors; however, because this industry's more
recent average DART (formerly LWDI) rate (for the years 1996, 1997, and 1998,
the base years OSHA is using to determine lower-hazard industry exemptions)
is above 75% of the national average cutoff, SIC 736 is not exempted under
the final rule. The final rule (see section 1904.31(b)(2)) requires the
"using firm" to record the injuries and illnesses of temporary
workers that are "leased" from a personnel supply service,
providing that the using firm supervises these workers on a day-to-day basis. The
National Association of Temporary and Staffing Services commented on the
proposed removal of the exemption for SIC 736: The
proposed rules also would lift the partial exemption for employers classified
under SIC Code 7363 (help supply services). Those employers, among others,
were exempted from injury and illness record keeping requirements in 1982
because they had low work place injury rates. The proposal to lift the
exemption is based on reported increased injury rates for these employers.
However, since records for the vast majority of staffing firm employees are
maintained by the worksite employer as explained above, the practical effect
of lifting the exemption for staffing firms would be to require them to
maintain records for their home office clerical and administrative workers --
for whom there is no evidence of increased work place illnesses or injuries.
Hence, we urge OSHA to retain the partial exemption for SIC 7363. If
the exemption is not retained in the case of SIC 7363 employers, it would be
especially important for the final rules to expressly provide, as set forth
above, that there is no intent to impose a dual reporting requirement. At
least one state OSH office already has construed the proposed lifting of the
partial exemption as creating an obligation on the part of staffing firms to
maintain records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent with the
intent of the proposed rule and should be clarified (Ex. 15: 333). The
final rule makes clear that, when a "leased" or
"temporary" employee is supervised on a day-to-day basis by the
using firm, the using firm must enter that employee's injuries and illnesses
on the using firm's establishment Log and other records. Injuries and illnesses
occurring to a given employee should only be recorded once, either by the
temporary staffing firm or the using firm, depending on which firm actually
supervises the temporary employees on a day-to-day basis. (see the discussion
for § 1904.31, Covered employees, for an in-depth explanation of these
requirements.) Some
commenters suggested that OSHA should grant partial exemptions to specific
industries within SICs 01 through 51 (agriculture, forestry and fishing;
mining; construction; manufacturing; transportation, communications,
electric, gas and sanitary services; and wholesale trade) that had lost
workday incidence rates that were below 75% of the average rate for all
industries instead of limiting such exemptions to industries in SICs 52-89
(see, e.g., Exs. 15: 77, 95, 184, 201, 357, 359, 374, 375). Typical of
these comments was one from the Synthetic Organic Chemical Manufacturers
Association (SOCMA): SOCMA
believes that the partial exemption from recordkeeping requirements should be
consistent for all standard industrial classifications. SOCMA supports the
use of injury rates, rather than SIC Codes, as a criterion for partial
exemption from recordkeeping requirements, provided the same criterion is
applied to all work sites. For example, if the performance measure was 75
percent of the private sector average, then all industries with injury rates
below this average should be exempt. There
is sound basis for this shift in OSHA's approach. It has been found in the
past that some industries in partially exempt SIC Codes 52 -- 89 have had
high injury rates while some in the "manufacturing" SIC Codes 01-51
have had low injury rates. This has resulted in insufficient or unavailable
injury and illness information for some facilities in SIC Codes 52-89 with
high injury rates. Inspection resources are wasted if injury and illness
information is not available during the inspection of high injury rate
facilities. Conversely, requiring full recordkeeping for facilities with low
injury rates results in a facility wasting resources on unnecessary
recordkeeping. All businesses, regardless of SIC Code, should be treated
equally and should have the opportunity to be exempt based on injury rates
(Ex. 15: 357). The
National Automobile Dealers Association (NADA) urged OSHA to exempt truck dealerships
[classified in SIC 50], even though they are considered wholesale rather than
retail establishments, because of their similarity to automobile dealerships
[SIC 551], which are exempted: NADA
strongly urges OSHA to exempt truck dealerships (SIC 5012), the overwhelming
majority of whom are small businesses as recognized by the Small Business
Administration (SBA).* * * A limited exemption for truck dealerships is
justified under the same criteria used for automobile dealerships (Ex. 15:
280). On
the other hand, some commenters agreed with OSHA's proposal to require all
businesses in SICs 01-51 to keep injury and illness records (see, e.g.,
Exs. 15: 170, 199, 369). The International Brotherhood of Teamsters (IBT)
remarked: "IBT does not support using the same analysis of data at the
three digit level of those industries in SIC 01 through 51 (industries
historically not exempted from recordkeeping requirements). IBT maintains the
importance of recording of all occupational injuries and illnesses" (Ex.
15: 369). A major utility, New England Power, agreed: "We believe that
the existing exemption criteria for SICs 52-89 should remain the same.
Although many industries would fall within the exemption criteria in SICs
01-51, they are still higher hazard industries producing valuable data on
injury/ illness experience" (Ex. 15: 170). The NYNEX Corporation also
agreed with OSHA's proposed approach: We
are not in favor of extending the concept of industry-wide recordkeeping
exemptions to the list of three digit codes in the group 01-51 that were
identified in the proposal. Even though these groups have average injury and
illness case rates that are less than 75% of the private sector average, the
nature of the work operations performed within these industries suggests that
the variation above and below average for individual establishments could be
much greater than with SIC Codes 52-89. An exemption for this group of
establishments could mask the existence of some very high case rates within
this group (Ex. 15: 199). After
a review of the recent BLS data, OSHA's own experience, and the record of
this rulemaking, OSHA has decided that it is appropriate to require firms in
industries within the SIC 01 through 51 codes to comply with OSHA's
requirements to keep records. Thus, the final rule, like the proposed rule
and the rule published in 1982, does not exempt firms with more than 10
employees in the industry divisions of agriculture, mining, construction,
manufacturing, wholesale trade, transportation and public utilities (SICs 01
-- 52) from routine recordkeeping. Although
OSHA no longer restricts its inspection targeting schemes to employers in
these SICs, these industries have traditionally been, and continue to be, the
focus of many of the Agency's enforcement programs. OSHA believes that it is
important for larger employers (i.e., those with more than 10 employees) in
these industries to continue to collect and maintain injury and illness
records for use by the employer, employees and the government. As noted in the
comments there is a wide variation in injury/illness rates among
establishments classified in these industries. Further, as a whole, these
industries continue to have injury and illness rates that are generally
higher than the private sector average and will thus benefit from the
information that OSHA-mandated records can provide about safety and health
conditions in the workplace. In 1998, the lost workday injury and illness
rate for the entire private sector was 3.1. As can be seen in the following
table of lost workday injury and illness rates by industry division, all of
the covered divisions exceeded 75% of the national average LWDI rate (2.325)
for the private sector as a whole, while the exempted industry divisions had
substantially lower rates.
(U.S.
Department of Labor Press Release USDL 98-494, December 16, 1999) The
problems that may be encountered by exempting additional industries are
exemplified by an analysis of the petrochemical industry and the
manufacturers of chemicals and petroleum products, classified in SICs 28 and
29. If the industry exemption were applied to these industries, injury and
illness records would not be required for highly specialized plants that make
industrial inorganic chemicals, plastics materials and synthetic resins,
pharmaceuticals, industrial organic chemicals, and petroleum refineries.
These industries have relatively low occupational injury and illness rates,
but they are not truly low-hazard industries. All of these facilities make,
use and handle highly toxic chemicals and consequently have the potential for
both acute overexposure and chronic exposures of their employees to these
substances. These industries, for example, are the industries to which OSHA
health standards, such as the benzene, ethylene oxide, and methylene chloride
standards, apply. Because occupational illnesses, particularly chronic illnesses,
are notoriously underreported (see, e.g., Exs. 15: 407, 4, 5), the
LWDI rates for these industries do not accurately reflect the level of hazard
present in these facilities. In addition, these types of facilities are prone
to major safety and health problems, including explosions, toxic releases and
other events that often lead to fatalities and serious injuries. The safety
and health problems of these facilities are not limited to workers, but
extend to hazards posed to the general public. In addition, OSHA frequently
inspects these facilities because of their potential for catastrophic
releases, fires, and explosions, and the Part 1904 injury and illness records
have been extremely useful for this purpose. The
Agency finds that continuing, and improving on, the Agency's longstanding
approach of partially exempting those industries in SIC codes 52-89 that have
DART rates, based on 3 years of BLS data, below 75% of the private-sector
average strikes the appropriate balance between the need for injury and
illness information on the one hand, and the paperwork burdens created by
recording obligations, on the other. The BLS Annual Survey will, of course,
continue to provide national job-related statistics for all industries and
all sizes of businesses. As it has done in the past, the BLS will sample
employers in the partially exempt industries and ask each sampled employer to
keep OSHA records for one year. In the following year, BLS will collect the
records to generate estimates of occupational injury and illness for firms in
the partially exempt industries and size classes, and combine those data with
data for other industries to generate estimates for the entire U.S. private
sector. These procedures ensure the integrity of the national statistics on occupational
safety and health. The
list of partially exempted industry sectors in this rule is based on the
current (1987) revision of the SIC manual. The Office of Management and
Budget (OMB) is charged with maintaining and revising the system of industrial
classification that will replace the SIC. The new system is used by U.S.
statistical agencies (including the BLS). Under the direction of OMB, the
U.S. government has adopted a new, comprehensive system of industrial
classification that will replace the SIC. The new system is called the North
American Industrial Classification System (NAICS). NAICS will harmonize the
U.S. classification system with those of Canada and Mexico and make it easier
to compare various economic and labor statistics among the three countries.
Several commenters expressed concern about this change in industrial
classification systems (see, e.g., Exs. 15: 70, 182, 183, 379). For
example, the American Society of Safety Engineers (ASSE) stated: The
Society is concerned with the recent Office of Management Budget (OMB),
proposal to change the Economic Classification Policy from the Standard
Industrial Classification System to the North American Industry
Classification System. We recommend that OSHA study what the effect would be
of promulgating a new regulation partially based on SIC codes when these
codes could be potentially replaced/revised with a new classification system
(Ex. 15: 182). Although
the NAIC industry classification system has been formally adopted by the
United States, the individual U.S. statistical agencies (including the BLS)
are still converting their statistical systems to reflect the new codes and
have not begun to publish statistics using the new industry classifications.
The new system will be phased into the nation's various statistical systems
over the next several years. The BLS does not expect to publish the first
occupational injury and illness rates under the new system until the
reference year 2003. Given the lag time between the end of the year and the
publication of the statistics, data for a full three-year period will not be
available before December of 2006. Because
data to revise the Part 1904 industry exemption based on the NAIC system will
not be available for another five years, OSHA has decided to update the
industry exemption list now based on the most recent SIC-based information
available from BLS for the years 1996, 1997 and 1998. OSHA will conduct a
future rulemaking to update the industry classifications to the NAIC system
when BLS publishes injury and illness data that can be used to make
appropriate industry-by-industry decisions. The
proposal inquired whether OSHA should adopt a procedure for adjusting the
industry exemption lists as the injury and illness rates of various
industries change over time. A number of commenters urged OSHA to update the
exemption list periodically (see, e.g., Exs. 15: 27, 87, 170, 181,
199, 272, 280, 359, 374, 375, 392, 407). Some commenters suggested various
time periods, such as annually (Ex. 15: 374), every 3 years (see, e.g.,
Exs. 15: 87, 181, 199, 407), every 5 years (see, e.g., Exs. 15: 170,
181, 262, 272, 359, 375), or every 5 to 10 years (Ex. 15: 392). Southwestern
Bell Telephone suggested that the list should be modified whenever changes in
the injury and illness rates warrant a change (Ex. 15: 27). In the opinion of
the National Safety Council, "How often the SIC exemption should be
updated depends on how well and how quickly OSHA can communicate changes in
the exempt industry list to those affected. The Council recommends updating
the list every 3 to 5 years" (Ex. 15: 280). Several
commenters, however, opposed frequent updating of the SIC exemption list. For
example, the Orlando Safety and Health Customer Council stated: "Changes
to SIC exemptions should be limited to a minimum of every 5 years. This would
reduce confusion" (Ex. 15: 97). The National Institute for Occupational
Safety and Health (NIOSH) generally opposed industry exemptions but
recommended that, if they were continued, they be updated as follows: If
OSHA continues to provide this exemption for low injury rate SICs, NIOSH
recommends that the list of partially exempt SICs be placed in an Appendix.
Because the injury and illness experience of an industry can change over time
(e.g., SIC 58 and SIC 84 had injury rates at or below 75% of the
private sector average in 1983, but above 75% of the private sector average
in 1990 and 1992), OSHA should periodically review and modify the list of
partially exempt industries. NIOSH recommends that the criteria for partial
exemptions be placed in the regulatory text, while placing the list of
partially exempt industries in an Appendix as noted so that the list could be
updated periodically by administrative means rather than by changing the
regulation. In addition to the partial exemption criteria, the regulatory
text should specify the interval (in years) for reviewing and revising the
list of those industries that qualify. NIOSH recommends an interval of 3
years for the review and revision process (Ex. 15: 407). OSHA
agrees with those commenters who favored regular updating of the SIC code
exemption list. For the list to focus Agency resources most effectively on
the most hazardous industries, it must be up-to-date. Industries that are
successful in lowering their rates to levels below the exemption threshold
should be exempted, while those whose rates rise sufficiently to exceed the
criterion should receive additional attention. Unfortunately, the change in
industry coding systems from the Standard Industrial Classification (SIC)
system to the North American Industry Classification (NAIC) system will
require a future rulemaking to shift to that system. Therefore, there is no
value in adding an updating mechanism at this time. The automatic updating
issue will be addressed in the same future rulemaking that addresses the NAIC
system conversion. Partial
Exemptions for Employers Under the Jurisdiction of OSHA-Approved State
Occupational Safety and Health Plans Robert
L. Rowan, Jr. expressed a concern that the OSHA State-Plan States could have
differing industry exemptions from those applying to federal OSHA states,
commenting: In
regard to the note in OSHA's Coverage and Exemption Table that "some
states with their own occupational safety and health programs do not recognize
the federal record keeping exemptions". I am deeply concerned. I would
prefer that all jurisdictions enforce the same requirements. This will be
confusing and create needless problems for businesses with sites in numerous
states if requirements are not enforced equally (Ex. 15: 62). For
those States with OSHA-approved State plans, the state is generally required
to adopt Federal OSHA rules, or a State rule that is at least as effective as
the Federal OSHA rule. States with approved plans do not need to exempt
employers from recordkeeping, either by employer size or by industry
classification, as the final Federal OSHA rule does, although they may choose
to do so. For example, States with approved plans may require records from a
wider universe of employers than Federal OSHA does. These States cannot
exempt more industries or employers than Federal OSHA does, however, because
doing so would result in a State rule that is not as effective as the Federal
rule. A larger discussion of the effect on the State plans can be found in
Section VIII of this preamble, State Plans. Recordkeeping
Under the Requirements of Other Federal Agencies Section
1904.3 of the final rule provides guidance for employers who are subject to
the occupational injury and illness recording and reporting requirements of
other Federal agencies. Several other Federal agencies have similar
requirements, such as the Mine Safety and Health Administration (MSHA), the
Department of Energy (DOE), and the Federal Railroad Administration (FRA). The
final rule at section 1904.3 tells the employer that OSHA will accept these
records in place of the employer's Part 1904 records under two circumstances:
(1) if OSHA has entered into a memorandum of understanding (MOU) with that
agency that specifically accepts the other agency's records, the employer may
use them in place of the OSHA records, or (2) if the other agency's records
include the same information required by Part 1904, OSHA would consider them
an acceptable substitute. OSHA
received very few comments on the issue of duplicate recordkeeping under
different agency rules. The Fertilizer Institute (TFI) recommended that OSHA
make the data mandated by OSHA and MSHA more consistent (Ex. 15:154).
However, MSHA and OSHA have different recordkeeping requirements because the
agencies' mandate and uses of the data differ. The approach OSHA takes in the
final rule, which is to continue to accept data kept by employers under other
Federal requirements if the two federal agencies have made an agreement to do
so, or if the data are equivalent to the data required to be kept by Part
1904, appears to be the best way to handle the problem raised by the TFI. Subpart C. Recordkeeping Forms and Recording Criteria Subpart
C of the final rule sets out the requirements of the rule for recording cases
in the recordkeeping system. It contains provisions directing employers to
keep records of the recordable occupational injuries and illnesses
experienced by their employees, describes the forms the employer must use,
and establishes the criteria that employers must follow to determine which
work-related injury and illness cases must be entered onto the forms. Subpart
C contains sections 1904.4 through 1904.29. Section
1904.4 provides an overview of the requirements in Subpart C and contains a
flowchart describing the recording process. How employers are to determine
whether a given injury or illness is work-related is set out in section
1904.5. Section 1904.6 provides the requirements employers must follow to
determine whether or not a work-related injury or illness is a new case or
the continuation of a previously recorded injury or illness. Sections 1904.7
through 1904.12 contain the recording criteria for determining which new
work-related injuries and illnesses must be recorded on the OSHA forms.
Section 1904.29 explains which forms must be used and indicates the
circumstances under which the employer may use substitute forms. Section 1904.4 Recording Criteria Section
1904.4 of the final rule contains provisions mandating the recording of
work-related injuries and illnesses that must be entered on the OSHA 300
(Log) and 301 (Incident Report) forms. It sets out the recording requirements
that employers are required to follow in recording cases. Paragraph
1904.4(a) of the final rule mandates that each employer who is required by
OSHA to keep records must record each fatality, injury or illness that is
work-related, is a new case and not a continuation of an old case, and meets
one or more of the general recording criteria in section 1904.7 or the
additional criteria for specific cases found in sections 1904.8 through
1904.12. Paragraph (b) contains provisions implementing this basic
requirement. Paragraph
1904.4(b)(1) contains a table that points employers and their recordkeepers
to the various sections of the rule that determine which work-related
injuries and illnesses are to be recorded. These sections lay out the
requirements for determining whether an injury or illness is work-related, if
it is a new case, and if it meets one or more of the general recording
criteria. In addition, the table contains a row addressing the application of
these and additional criteria to specific kinds of cases (needlestick and
sharps injury cases, tuberculosis cases, hearing loss cases, medical removal
cases, and musculoskeletal disorder cases). The table in paragraph
1904.4(b)(1) is intended to guide employers through the recording process and
to act as a table of contents to the sections of Subpart C. Paragraph
(b)(2) is a decision tree, or flowchart, that shows the steps involved in
determining whether or not a particular injury or illness case must be
recorded on the OSHA forms. It essentially reflects the same information as
is in the table in paragraph 1904.4(b)(1), except that it presents this
information graphically. The
former rule had no tables or flowcharts that served this purpose. However,
the former Recordkeeping Guidelines (Ex. 2) contained several
flowcharts to help employers make decisions and understand the overall
recording process. The proposed rule included a flowchart as Appendix C to
Part 1904 -- Decision Tree for Recording Occupational Injuries and Illnesses.
OSHA received very few comments in response to proposed Appendix C, and no
commenters objected to the decision tree concept. The commenters who
discussed the decision tree supported it, and many suggested that it should
be incorporated into the computer software OSHA develops to assist employers
with keeping the records (see, e.g., Exs. 51, 15: 38, 67, 335, 407,
438). In
the final rule, OSHA has decided to include the flowchart because of its
usefulness in depicting the overall recording process. OSHA has not labeled
the flowchart non-mandatory, as some commenters (see, e.g., Ex. 15:
335) suggested, because the recording of injuries and illnesses is a
mandatory requirement and labeling the flowchart as non-mandatory could be
confusing. Section 1904.5 Determination of Work-Relatedness This
section of the final rule sets out the requirements employers must follow in
determining whether a given injury or illness is work-related. Paragraph
1904.5(a) states that an injury or illness must be considered work-related if
an event or exposure in the work environment caused or contributed to the
injury or illness or significantly aggravated a pre-existing injury or
illness. It stipulates that, for OSHA recordkeeping purposes, work
relationship is presumed for such injuries and illnesses unless an exception
listed in paragraph 1904.5(b)(2) specifically applies. Implementation
requirements are set forth in paragraph (b) of the final rule. Paragraph
(b)(1) defines "work environment" for recordkeeping purposes and
makes clear that the work environment includes the physical locations where
employees are working as well as the equipment and materials used by the
employee to perform work. Paragraph
(b)(2) lists the exceptions to the presumption of work-relatedness permitted
by the final rule; cases meeting the conditions of any of the listed
exceptions are not considered work-related and are therefore not recordable
in the OSHA recordkeeping system. This
section of the preamble first explains OSHA's reasoning on the issue of work
relationship, then discusses the exceptions to the general presumption and
the comments received on the exceptions proposed, and then presents OSHA's
rationale for including paragraphs (b)(3) through (b)(7) of the final rule,
and the record evidence pertaining to each. Section
8(c)(2) of the OSH Act directs the Secretary to issue regulations requiring
employers to record "work-related" injuries and illnesses. It is
implicit in this wording that there must be a causal connection between the
employment and the injury or illness before the case is recordable. For most
types of industrial accidents involving traumatic injuries, such as
amputations, fractures, burns and electrocutions, a causal connection is
easily determined because the injury arises from forces, equipment,
activities, or conditions inherent in the employment environment. Thus, there
is general agreement that when an employee is struck by or caught in moving
machinery, or is crushed in a construction cave-in, the case is work-related.
It is also accepted that a variety of illnesses are associated with exposure
to toxic substances, such as lead and cadmium, used in industrial processes.
Accordingly, there is little question that cases of lead or cadmium poisoning
are work-related if the employee is exposed to these substances at work. On
the other hand, a number of injuries and illnesses that occur, or manifest themselves,
at work are caused by a combination of occupational factors, such as
performing job-related bending and lifting motions, and factors personal to
the employee, such as the effects of a pre-existing medical condition. In
many such cases, it is likely that occupational factors have played a
tangible role in causing the injury or illness, but one that cannot be
readily quantified as "significant" or "predominant" in
comparison with the personal factors involved. Injuries
and illnesses also occur at work that do not have a clear connection to a
specific work activity, condition, or substance that is peculiar to the
employment environment. For example, an employee may trip for no apparent
reason while walking across a level factory floor; be sexually assaulted by a
co-worker; or be injured accidentally as a result of an act of violence
perpetrated by one co-worker against a third party. In these and similar
cases, the employee's job-related tasks or exposures did not create or
contribute to the risk that such an injury would occur. Instead, a causal
connection is established by the fact that the injury would not have occurred
but for the conditions and obligations of employment that placed the employee
in the position in which he or she was injured or made ill. The
theory of causation OSHA should require employers to use in determining the
work-relationship of injuries and illnesses was perhaps the most important
issue raised in this rulemaking. Put simply, the issue is essentially whether
OSHA should view cases as being work-related under a "geographic"
or "positional" theory of causation, or should adopt a more
restrictive test requiring that the occupational cause be quantified as
"predominant," or "significant," or that the injury or
illness result from activities uniquely occupational in nature. This issue
generated substantial comment during this rulemaking, and the Agency's
evaluation of the various alternative tests, and its decision to continue its
historic test, are discussed below. The final rule's test for work-relationship and its similarity to the
former and proposed rules. -- The final rule requires that employers consider an injury or
illness to be "work-related" if an event or exposure in the work
environment either caused or contributed to the resulting condition or
significantly aggravated a pre-existing injury or illness. Work relatedness
is presumed for injuries and illnesses resulting from events or exposures
occurring in the work environment, unless an exception in § 1904.5(b)(2)
specifically applies. Under
paragraph 1904.5(b)(1), the "work environment" means "the
establishment and other locations where one or more employees are working or
are present as a condition of their employment. The work environment includes
not only physical locations, but also equipment or materials used by the
employee during the course of his or her work." The
final rule's definition of work-relationship is essentially the same as that
in both the former and proposed rules except for the final rule's requirement
that the work event or exposure "significantly" aggravate a
pre-existing injury or illness. The Guidelines interpreting the former
rule stated that Work-relationship
is established under the OSHA recordkeeping system when the injury or illness
results from an event or exposure in the work environment. The work
environment is primarily composed of: (1) The employer's premises, and (2)
other locations where employees are engaged in work-related activities or are
present as a condition of their employment. (Ex. 2 at p. 32). The
proposed rule also contained a similar definition of "work-related"
and "work environment." The only significant difference between the
proposed and the final rule definitions is that the proposed rule also would
not have required a "significant" aggravation of a pre-existing
condition before it became recordable; under the proposal, any aggravation
would have been sufficient (see 61 FR 4059). The
Alternative Tests for Work-Relationship Although
OSHA proposed to continue its existing definition of work-relationship, it
sought comment on the following three alternative tests: 1.
Exclude cases with any evidence of non-work etiology. Only cases where the
work event or exposure was the sole causative factor would be
recorded; 2.
Record only cases where work was the predominant causative factor; 3.
Record all cases where the work event or exposure had any possibility
of contributing to the case (emphasis added). (61 FR 4045) Comments
on the "Quantified Occupational Cause" Test The
first two alternative tests described in the proposal would have required the
employer to quantify the contribution of occupational factors as compared to
that of personal factors. These tests are referred to in the Legal Authority
section, and in this preamble, as the "quantified occupational
cause" tests. Of these tests, Alternative 2 -- record only injuries and
illnesses predominantly caused by occupational factors -- received the most
comment. Typical of these comments were those of the Dow Chemical Company,
which expressed the view of many in industry that "[a] system that
labels an injury or illness attributable to the workplace even though the
workplace contribution may be insignificant does not lead to an effective,
credible or accurate program" (Ex. 15: 335). Other commenters stated
that recording only those cases where work was the predominant cause would
improve the system by focusing attention on cases that are amenable to
employer abatement (see, e.g., Exs. 22, 15: 13, 27, 34, 38, 52, 60,
69, 71, 72, 82, 97, 102, 108, 109, 122, 136, 137, 141, 146, 147, 149, 152,
154, 159, 163, 169, 171, 174, 176, 181, 197, 198, 199, 200, 201, 214, 218,
224, 230, 231, 238, 239, 260, 262, 265, 266, 272, 273, 277, 278, 287, 288,
290, 297, 301, 302, 303, 307, 313, 317, 318, 330, 335, 346, 352, 353, 370,
375, 382, 378, 383, 384, 386, 388, 396, 401, 402, 404, 405, 425, 426, 430). Some
commenters (see, e.g., Exs. 15: 185, 199, 205, 332, 338, 349, 354,
358, 375, 421, 440) offered a slight modification on Alternative 2. They
suggested that using a term other than predominant, such as
"substantial" or "significant," would avoid the need to
define "predominant" as a percentage. For example, United
Technologies (Ex. 15: 440) opposed "placing a percentage on the degree
of contribution" because doing so would not be practical. Further,
according to this commenter, "work relationship should be established in
cases where the workplace contributed substantially to the injury or illness,
as determined by an occupational physician." Arguing along the same
lines, the American Petroleum Institute (API) (Ex. 15: 375) stated that it
supported "in principle the work-relatedness concept presented by OSHA
as Alternative 2, but feels "predominant" might be too difficult to
administer as a fundamental criterion. API proposes that work-relatedness
should exist when an event or exposure in the workplace is a significant
factor resulting in an injury or illness. * * *" Organization Resource
Counselors, Inc. (Ex. 15: 358) added: "[T]he Congressional intent in drafting
these sections was to require the collection of work-related information
about significant work-related injuries and illnesses." The General
Electric Company (Ex. 15: 349) said that "OSHA needs to allow the
facility the flexibility to record only those cases that are "more
likely than not" related to workplace exposure or tasks. This
determination can be made during the incident investigation. A good test of
work-relatedness is whether the injury would have been prevented by full
compliance with the applicable OSHA standard." Proposed
Alternative 1, which would have required the recording only of cases where
work was the sole cause, was also supported by a large number of commenters
(see, e.g., Exs. 15: 9, 39, 87, 95, 119, 123, 145, 151, 152, 179, 180,
183, 185, 204, 205, 225, 229, 234, 242, 259, 263, 269, 270, 304, 341, 363,
377, 389, 393, 414, 433, 443). Typical of this view was the comment of the
American Health Care Association (Ex. 15: 341): If
OSHA's primary concern is to address those workplace hazards or risks that
cause or may cause employee injury/illness then the agency should confine
recordability to those injuries and illnesses that are directly caused by a
workplace event or exposure. This approach, in turn, will focus the
employer's attention on those unsafe workplace conditions that need to be
corrected to protect all workers exposed to or at risk from the unsafe
conditions. The
National Federation of Independent Business (Ex. 15: 304) supported
Alternative 1 "because under such a system evidence of non-work-related
factors is excluded thus the decision-making process is dramatically
simplified and the tally is very credible." The Painting and Decorator
Contractors of America (Ex. 15: 433) added: "[T]his approach is also
consistent with OSHA's intent (and the Congressional mandate in the Paperwork
Reduction Act of 1995) to reduce compliance burdens as this would be the
simplest method for employers to apply." Comments
on the "Unique Occupational Activities" Test Some
commenters favored a closely related test for work relationship that would
place primary emphasis on the nature of the activity that the employee was
engaged in when injured or made ill. This test is referred to the Legal
Authority section and in this preamble section as the "unique
occupational activities" test. Its supporters argued that whether an
injury or illness occurs or manifests itself at work is less important than
whether or not the harm has been caused by activities or processes peculiar
to the workplace. The AISI argued that: [I]t
is clear that Congress intended OSHA's authority to regulate to be limited to
"occupational hazards" and conceived of such hazards as
"processes and materials" peculiar to the workplace. * * * Congress
did not give OSHA the authority to regulate hazards if they "grow out of
economic and social factors which operate primarily outside the workplace.
The employer neither controls nor creates these factors as he controls or
creates work processes and materials." Congress was concerned with
dangerous conditions peculiar to the workplace; it did not have in mind the
recording of illnesses simply because they appear at work (internal citations
omitted) (Ex. 15: 395). Dow
Chemical made a similar point in arguing that the criteria for determining
work-relationship should include whether the activity the employee was
engaged in at the time of the injury or onset of illness was for the direct
benefit of the employer or was a required part of the job (Ex. 15: 335B).
According to Dow, the activity-based test would be more accurate than the
geographic presumption (OSHA's historic test) because it would omit injuries
due to hazards beyond the employer's control: Examples
to illustrate this point include the employee who during his break attempts
to remove a plastic insert in a condiment container with a knife and ends up
cutting himself which requires three stitches. This activity, while it
happened on company grounds, was not for the direct benefit of the company
nor a requirement of his job, and there was no way for the employer to
prevent it (Ex. 15: 335B). Comments
on OSHA's Historical Test A
significant number of commenters supported OSHA's long-standing test in which
work factors must be a cause, but not necessarily a "significant"
or "predominant" cause, and a geographic presumption applies if
"events or exposures" in the work environment either caused or
contributed to the resulting condition, or aggravated a pre-existing
condition (see, e.g., Exs. 15: 74, 153, 362, 369, 394, 407, 418, 429).
For example, NIOSH (Ex. 15: 407) favored this approach because
"[o]verreported cases can be identified and accounted for in data
analysis, in contrast to the other alternatives which stress specificity at
the expense of sensitivity and would result in unreported cases." The
AFL-CIO argued that: *
* * [c]apturing all workplace illnesses and injuries, even those for which
the predominant cause cannot be proven to be work-related, can lead to early
recognition of problems and abatement of hazardous conditions. Our experience
has shown us that when comprehensive records of all possible cases are kept,
patterns of injury and illness emerge, enabling us to target problem areas/
factors that previously may not have been associated with that specific work
environment. The inclusion of all cases will lead to prevention strategies
that can reduce the risk of serious illness and injury to workers. Inclusion
of all cases that have a workplace link will also assist in the recognition
of diseases that are caused by synergistic effects. (Ex. 15: 418) The
American Industrial Hygiene Association (AIHA) argued that continuing OSHA's
historic approach to work-relationship is particularly important in the case
of occupational illnesses because: Occupational
illnesses differ from injuries in that minor or early symptoms of illness are
often an important indicator of a more serious disease state, while a minor
injury usually goes away without further developments. By the time serious
disabling symptoms have surfaced. a disease may be very far progressed and
irreversible. Training courses such as Hazard Communication are geared toward
educating the workforce to recognize and report symptoms of overexposure,
presumably for disease prevention. AIHA does not want this information to be
de-emphasized or lost (Ex. 15: 153). Comments
on the "Mere Possibility" Test Alternative
3 described in the proposal would have required that an injury or illness be
considered work related "if the worker ever experienced a workplace
event or exposure that had any possibility of playing a role in the
case." This "mere possibility" test is substantially different
than OSHA's historical definition of work-relationship, which required that
the injury or illness have a tangible connection with the work environment.
Although some commenters supported Alternative 3, apparently on the
assumption that it was in fact OSHA's proposed definition, analysis of these
comments suggests that the parties involved recognized that an injury must
have a real, not merely theoretical, link to work to be work-related. No
commenter suggested a rationale for recording cases having only a theoretical
or speculative link to work. OSHA's
Reasons for Rejecting the Alternative Tests for work-relationship OSHA
has given careful consideration to all of the comments and testimony received
in this rulemaking and has decided to continue to rely in the final rule on
the Agency's longstanding definition of work-relationship, with one
modification. That modification is the addition of the word "significantly"
before "aggravation" in the definition of work-relatedness set
forth in final rule section 1904.5. The relevant portion of the section now
states "an injury or illness is to be considered work-related if an
event or exposure in the work environment either caused or contributed to the
injury or illness or significantly aggravated a pre-existing injury or
illness" (emphasis added). In
the final rule, OSHA has restated the presumption of work-relationship to
clarify that it includes any non-minor injury or illness occurring as a
result of an event or exposure in the work environment, unless an exception
in paragraph 1904.5(b)(2) specifically applies. OSHA believes that the final
rule's approach of relying on the geographic presumption, with a limited
number of exceptions, is more appropriate than the alternative approaches,
for the following reasons. The
Geographic Presumption Is Supported by the Statute One
important distinction between the geographic test for causation and the
alternative causation tests is that the geographic test treats a case as
work-related if it results in whole or in part from an event or exposure
occurring in the work environment, while the alternative tests would only
cover cases in which the employer can determine the degree to which work
factors played a causal role. Reliance on the geographic presumption thus
covers cases in which an event in the work environment is believed likely to
be a causal factor in an injury or illness but the effect of work cannot be
quantified. It also covers cases in which the injury or illness is not caused
by uniquely occupational activities or processes. These cases may arise, for
example, when: (a) an accident at work results in an injury, but the cause of
the accident cannot be determined; (b) an injury or illness results from an
event that occurs at work but is not caused by an activity peculiar to work,
such as a random assault or an instance of horseplay; (c) an injury or
illness results from a number of factors, including both occupational and
personal causes, and the relative contribution of the occupational factor
cannot be readily measured; or (d) a pre-existing injury or illness is
significantly aggravated by an event or exposure at work. As
discussed in the Legal Authority section, the statute's language and the
Legislative History support a definition of work-relationship that
encompasses all injuries and illnesses resulting from harmful events and
exposures in the work environment, not only those caused by uniquely
occupational activities or processes. A number of commenters acknowledged the
broad purposes served by OSHA's recordkeeping requirements and urged
continued reliance on the former rule's definition of
"work-related" (see, e.g., Exs. 15: 65, 198, 350, 369, 418).
For example, the AFL-CIO noted, "[o]ur experience has shown us that when
comprehensive records of all possible cases are kept, patterns of injury and
illness emerge, enabling us to target problem areas/factors that previously
may not have been associated with that specific work environment" (Ex.
15: 418) (emphasis added). On
the other hand, those commenters favoring the "quantified occupational
cause" test or the "unique occupational activity" test
maintained that injury and illness records have more limited functions. Some
commenters argued that because OSHA's mission is to eliminate preventable
occupational injuries and illnesses, the determination of work-relationship
must turn on whether the case could have been prevented by the employer's
safety and health program. The Dow Chemical Company expressed this view as
follows: [T]he
goal of this recordkeeping system should be to accurately measure the
effectiveness of safety and health programs in the workplace. Activities
where safety and health programs could have no impact on preventing or
mitigating the condition should not be logged and included in the Log and
Summary nor used by OSHA to determine its inspection schedule. If the event
was caused by something beyond the employer's control it should not be
considered a recordable event that calls into question a facility's safety
and health program. .
. . Credibility in this regulation rests on whether the recorded data
accurately reflects the safety and health of the workplace. Including events
where the workplace had virtually no involvement undermines the credibility
of the system and results in continued resistance to this regulation (Ex. 15:
335B). The
law firm of Constangy, Brooks and Smith, LLC, urged OSHA to adopt the
proposal's second alternative ("predominant cause") because cases
that are "predominantly caused by workplace conditions" are the
ones most likely to be preventable by workplace controls. Their comment
stated, "[s]ince OSHA's ultimate mission is the prevention of workplace
injuries and illnesses, it is reasonably necessary to require recording only
when the injury or illness can be prevented by the employer" (Ex.
15-345). Other commenters opposed the recording of cases in which the injury
or illness arises while the employee is on break, in the rest room, or in storage
areas located on the employer's premises. These commenters claimed that use
of the geographic presumption results in recording many injuries and
illnesses that have little or no relationship to the work environment (see, e.g.,
Exs. 15: 231, 423, 424G). OSHA
believes that the views of Dow Chemical and others in support of the
proposal's alternative tests for work-relationship reflect too narrow a
reading of the purposes served by the OSHA injury and illness records.
Certainly, one important purpose for recordkeeping requirements is to enable
employers, employees, and OSHA to identify hazards that can be prevented by
compliance with existing standards or recognized safety practices. However,
the records serve other purposes as well, including providing information for
future scientific research on the nature of causal connections between the
work environment and the injuries and illnesses sustained by employees. For
example, the records kept by employers under Part 1904 produced useful data
on workplace assaults and murders, which has permitted OSHA, employers, and
others to focus on the issue of violence in the workplace. This has led, in
turn, to efforts to reduce the number of such cases by implementing
preventive measures. Although this issue was not anticipated by the 1904
system, the broad collection of injury, illness and fatality data allowed
useful information to be extracted from the 1904 data. As discussed in the
Legal Authority section, these purposes militate in favor of a general
presumption of work-relationship for injuries and illnesses that result from
events or exposures occurring in the work environment, with exceptions for
specific types of cases that may safely be excluded without significantly
impairing the usefulness of the national job-related injury and illness
database. At
the same time, OSHA is sensitive to the concerns of some commenters that the
injury and illness records are perceived as a measure of the effectiveness of
the employer's compliance with the Act and OSHA standards. OSHA emphasizes
that the recording of an injury or illness on the Log does not mean that a
violation has occurred. The explanatory materials accompanying the revised
OSHA Forms 300 and 301 contain the following statement emphasizing this
point: "Cases listed on the Log of Work-Related Injuries and Illnesses
are not necessarily eligible for Workers Compensation or other insurance
benefits. Listing a case on the Log does not mean that the employer or worker
was at fault or that an OSHA standard was violated." The
Alternative Tests for Work-Relationship Will Likely Lead Both to Inconsistent
Determinations and to Underreporting of Cases Under
the first two alternative tests for work-relationship described in the
proposal, the decision on work-relationship would depend upon the degree to
which the injury or illness resulted from distinctly occupational causes.
Whether labeled "sole cause," "predominant cause," or
"significant cause," these alternative tests would require the
employer, in each case, to distinguish between the occupational and
non-occupational causal factors involved, and to weigh the contribution of
the occupational factor or factors. Requiring the occupational cause to be
quantified in this way creates practical problems militating against the use
of these alternative tests in the final recordkeeping rule. The
most serious problem is that there is no reliable, objective method of
measuring the degree of contribution of occupational factors. The absence of
a uniform methodology for assessing the extent of work contribution caused
several industry commenters to endorse the former rule's position on
work-relationship. For example, the American Automobile Manufacturers
Association (AAMA) noted that an ideal system would focus on cases in which
the work environment was a major contributor to the injury or illness.
Nevertheless, the AAMA argued against adopting the predominant cause test,
stating: "until a system is developed in which employers can measure
objectively and consistently whether or not the work environment is a major
contributor to a workplace injury or illness, we favor continuing the
definition of work-relationship as it currently exists" (Ex. 15: 409).
The Ford Motor Co. also argued in favor of continuing the existing
definition: Ford
feels that the work environment should be a major contributor to an injury or
illness for the case to be considered work-related. However, we are unsure
how employers can measure objectively, consistently and equally whether the
work environment is a major contributor. The use of a checklist by a health
care provider to determine whether the work environment was a major
contributor for a case to be considered work-related would be overly
burdensome and subjective. Until a system is developed by which employers can
measure objectively, consistently and equally whether or not the work
environment is a major contributor to a workplace injury or illness, we favor
continuing the definition of work relationship as it currently exists (Ex.
15: 347). Based
on a review of the record, OSHA agrees with those commenters who supported a
continuation of the Agency's prior practice with regard to reliance on the
geographic presumption for determinations of work-relatedness. OSHA finds
that this approach, which includes all cases with a tangible connection with
work, better serves the purposes of recordkeeping. Accordingly, the final
rule relies on the geographic presumption, with a few limited exceptions, as
the recordkeeping system's test for work-relationship. Who
Makes the Determination? In
addition to the definition of work-relatedness, commenters addressed the
issue of who should make the determination of work-relatedness in a given
case (see, e.g., Exs. 15: 27, 35, 102, 105, 127, 193, 221, 281, 305,
308, 324, 325, 341, 345, 347, 385, 387, 390, 392, 397, 420). Some commenters
believed that a trained medical professional should make this determination,
while others argued that the employer should make the ultimate decision about
the work-relatedness of occupational injuries and illnesses. Some supported
the use of the work-relatedness checklist for specific disorders included by
OSHA in the proposal. For example, the American Public Health Association
(Ex. 15: 341) commented: We
also believe that work-relatedness should only be established by the
documented determination of a qualified health care provider with specific
training related to the type of case reported. OSHA's checklist for
determining work-relatedness. . . .should be used and expanded to include
potentially recordable cases, i.e., excluding first aid treatment. The
Dow Corning Corporation (Ex. 15: 374) argued that the employer should make
the determination, albeit with the assistance of a health care professional: This
assessment process should include interviews with knowledgeable people
regarding the duties and hazards of the employee's job tasks in addition to
the employee interview. If inaccurate or misleading information is given to
the health care provider improper or inaccurate conclusions may be reached
with regard to the incident cause. A health care provider's assessment of
work-relationship is typically viewed as difficult to overcome, even if it is
made with incomplete information. We recommend that the health care
provider's checklist be used as only one input in the work-relationship
decision and that the final decision should still rest with the employer. Deere
and Company (Ex. 15: 253) opposed leaving the determination of
work-relatedness to a health care professional: We
strongly disagree with any provision that would allow a physician to make a
final determination of work-relatedness. The only time a physician should
have any input into the actual determination of work-relatedness is if they
are knowledgeable of the employer's workplace environment and the specific
job tasks performed by employees. Frequently, physicians will state that a
condition was caused by an employee's job without having any knowledge of the
specific tasks being performed by the employee. This is an unacceptable
usurpation of employers' rights and we oppose any attempt to codify it in a
federal regulation. However,
several participants opposed making any work-relatedness checklist mandatory
(such as the one OSHA proposed) (see, e.g., Exs. 15: 68, 170, 201,
283, 434). The American Trucking Association's comment (Ex. 15: 397) was
typical of this view: We
do not, however, support a requirement that employers must use a mandatory
checklist to determine work-relatedness. . . . Because the checklist asks for
medical information, the employer would find itself in conflict with the
confidentiality requirements imposed under the Americans With Disabilities
Act. 29 C.F.R. § 1630.14. Moreover, a mandatory checklist would be
unnecessarily time-consuming and subjective. Finally, we note that inclusion
of item 5(b), "possible work contribution," biases the checklist in
favor of work-relatedness. In the absence of a clear indication of whether or
not the workplace caused or substantially caused the condition, asking a
provider or employee if it were "possible" that the workplace
contributed to or aggravated the injury/illness invites an affirmative
response. OSHA
has concluded that requiring employers to rely on a health care professional
for the determination of the work-relatedness of occupational injuries and
illnesses would be burdensome, impractical, and unnecessary. Small employers,
in particular, would be burdened by such a provision. Further, if the
professional is not familiar with the injured worker's job duties and work
environment, he or she will not have sufficient information to make a
decision about the work-relatedness of the case. OSHA also does not agree
that health care professional involvement is necessary in the overwhelming
majority of cases. Employers have been making work-relatedness determinations
for more than 20 years and have performed this responsibility well in that
time. This does not mean that employers may not, if they choose, seek the
advice of a physician or other licensed health care professional to help them
understand the link between workplace factors and injuries and illnesses in
particular cases; it simply means that OSHA does not believe that most
employers will need to avail themselves of the services of such a
professional in most cases. Accordingly,
OSHA has concluded that the determination of work-relatedness is best made by
the employer, as it has been in the past. Employers are in the best position
to obtain the information, both from the employee and the workplace, that is
necessary to make this determination. Although expert advice may occasionally
be sought by employers in particularly complex cases, the final rule provides
that the determination of work-relatedness ultimately rests with the
employer. The
Final Rule's Exceptions to the Geographic Presumption Paragraph
1904.5(b)(2) of the final rule contains eight exceptions to the work
environment presumption that are intended to exclude from the recordkeeping
system those injuries and illnesses that occur or manifest in the work
environment, but have been identified by OSHA, based on its years of
experience with recordkeeping, as cases that do not provide information
useful to the identification of occupational injuries and illnesses and would
thus tend to skew national injury and illness statistics. These eight
exceptions are the only exceptions to the presumption permitted by the final
rule. (i)
Injuries or illnesses will not be considered work-related if, at the time
of the injury or illness, the employee was present in the work environment as
a member of the general public rather than as an employee. This
exception, which is codified at paragraph 1904.5(b)(2)(i), is based on the
fact that no employment relationship is in place at the time an injury or
illness of this type occurs. A case exemplifying this exception would occur
if an employee of a retail store patronized that store as a customer on a
non-work day and was injured in a fall. This exception allows the employer
not to record cases that occur outside of the employment relationship when
his or her establishment is also a public place and a worker happens to be
using the facility as a member of the general public. In these situations,
the injury or illness has nothing to do with the employee's work or the
employee's status as an employee, and it would therefore be inappropriate for
the recordkeeping system to capture the case. This exception was included in
the proposal, and OSHA received no comments opposing its adoption. (ii)
Injuries or illnesses will not be considered work-related if they involve
symptoms that surface at work but result solely from a non-work-related event
or exposure that occurs outside the work environment. OSHA's
recordkeeping system is intended only to capture cases that are caused by
conditions or exposures arising in the work environment. It is not designed
to capture cases that have no relationship with the work environment. For
this exception to apply, the work environment cannot have caused, contributed
to, or significantly aggravated the injury or illness. This exception is
consistent with the position followed by OSHA for many years and reiterated
in the final rule: that any job-related contribution to the injury or illness
makes the incident work-related, and its corollary -- that any injury or
illness to which work makes no actual contribution is not work-related. An
example of this type of injury would be a diabetic incident that occurs while
an employee is working. Because no event or exposure at work contributed in
any way to the diabetic incident, the case is not recordable. This exception
allows the employer to exclude cases where an employee's non-work activities
are the sole cause of the injury or illness. The exception was included in
the proposal, and OSHA received no comments opposing its adoption. (iii)
Injuries and illnesses will not be considered work-related if they result
solely from voluntary participation in a wellness program or in a medical,
fitness, or recreational activity such as blood donation, physical, flu shot,
exercise classes, racquetball, or baseball. This exception allows the
employer to exclude certain injury or illness cases that are related to
personal medical care, physical fitness activities and voluntary blood
donations. The key words here are "solely" and
"voluntary." The work environment cannot have contributed to the
injury or illness in any way for this exception to apply, and participation
in the wellness, fitness or recreational activities must be voluntary and not
a condition of employment. This
exception allows the employer to exclude cases that are related to personal
matters of exercise, recreation, medical examinations or participation in
blood donation programs when they are voluntary and are not being undertaken
as a condition of work. For example, if a clerical worker was injured while
performing aerobics in the company gymnasium during his or her lunch hour,
the case would not be work-related. On the other hand, if an employee who was
assigned to manage the gymnasium was injured while teaching an aerobics
class, the injury would be work-related because the employee was working at
the time of the injury and the activity was not voluntary. Similarly, if an
employee suffered a severe reaction to a flu shot that was administered as
part of a voluntary inoculation program, the case would not be considered
work-related; however, if an employee suffered a reaction to medications
administered to enable the employee to travel overseas on business, or the
employee had an illness reaction to a medication administered to treat a
work-related injury, the case would be considered work-related. This
exception was included in the proposal, and received support from a number of
commenters (see, e.g., Exs. 15: 147, 181, 188, 226, 281, 304, 341,
345, 363, 348, 373). Other commenters supported this proposal but suggested
consolidating it with the proposed exception for voluntary activities away
from the employer's establishment (see, e.g., Exs. 15-176, 231, 248,
249, 250, 273, 301). OSHA has decided not to combine this exception with
another exception because questions are often asked about injuries and
illnesses that arise at the employer's establishment and the Agency believes
that a separate exception addressing voluntary wellness programs and other
activities will provide clearer direction to employers. (iv)
Injuries and illnesses will not be considered work-related if they are
solely the result of an employee eating, drinking, or preparing food or drink
for personal consumption (whether bought on the premises or brought in).
This exception responds to a situation that has given rise to many letters of
interpretation and caused employer concern over the years. An example of the
application of this exception would be a case where the employee injured
himself or herself by choking on a sandwich brought from home but eaten in
the employer's establishment; such a case would not be considered
work-related under this exception. On the other hand, if the employee was
injured by a trip or fall hazard present in the employer's lunchroom, the
case would be considered work-related. In addition, a note to the exception
makes clear that if an employee becomes ill as a result of ingesting food
contaminated by workplace contaminants such as lead, or contracts food
poisoning from food items provided by the employer, the case would be
considered work-related. As a result, if an employee contracts food poisoning
from a sandwich brought from home or purchased in the company cafeteria and
must take time off to recover, the case is not considered work related. On
the other hand, if an employee contracts food poisoning from a meal provided
by the employer at a business meeting or company function and takes time off
to recover, the case would be considered work related. Food provided or
supplied by the employer does not include food purchased by the employee from
the company cafeteria, but does include food purchased by the employer from
the company cafeteria for business meetings or other company functions. OSHA
believes that the number of cases to which this exception applies will be
few. This exception was included in the proposal and received generally
favorable comments (see, e.g., Exs. 15: 31, 78, 105, 159, 176, 181,
184, 188, 345, 359, 428). (v)
Injuries and illnesses will not be considered work-related if they are
solely the result of employees doing personal tasks (unrelated to their
employment) at the establishment outside of their assigned working hours.
This exception, which responds to inquiries received over the years, allows
employers limited flexibility to exclude from the recordkeeping system
situations where the employee is using the employer's establishment for
purely personal reasons during his or her off-shift time. For example, if an
employee were using a meeting room at the employer's establishment outside of
his or her assigned working hours to hold a meeting for a civic group to
which he or she belonged, and slipped and fell in the hallway, the injury
would not be considered work-related. On the other hand, if the employee were
at the employer's establishment outside his or her assigned working hours to
attend a company business meeting or a company training session, such a slip
or fall would be work-related. OSHA also expects the number of cases affected
by this exception to be small. The comments on this exception are discussed
in more detail in the section concerning proposed Exception B-5, Personal
Tasks Unrelated To Employment Outside of Normal Working Hours, found later in
this document. (vi)
Injuries and illnesses will not be considered work-related if they are
solely the result of personal grooming, self-medication for a
non-work-related condition, or are intentionally self-inflicted. This
exception allows the employer to exclude from the Log cases related to
personal hygiene, self-administered medications and intentional
self-inflicted injuries, such as attempted suicide. For example, a burn
injury from a hair dryer used at work to dry the employee's hair would not be
work-related. Similarly, a negative reaction to a medication brought from
home to treat a non-work condition would not be considered a work-related
illness, even though it first manifested at work. OSHA also expects that few
cases will be affected by this exception. (vii)
Injuries will not be considered work-related if they are caused by motor
vehicle accidents occurring in company parking lots or on company access
roads while employees are commuting to or from work. This exception
allows the employer to exclude cases where an employee is injured in a motor
vehicle accident while commuting from work to home or from home to work or
while on a personal errand. For example, if an employee was injured in a car
accident while arriving at work or while leaving the company's property at
the end of the day, or while driving on his or her lunch hour to run an
errand, the case would not be considered work-related. On the other hand, if
an employee was injured in a car accident while leaving the property to
purchase supplies for the employer, the case would be work-related. This
exception represents a change from the position taken under the former rule,
which was that no injury or illness occurring in a company parking lot was
considered work-related. As explained further below, OSHA has concluded,
based on the evidence in the record, that some injuries and illnesses that
occur in company parking lots are clearly caused by work conditions or
activities -- e.g., being struck by a car while painting parking space
indicators on the pavement of the lot, slipping on ice permitted to
accumulate in the lot by the employer -- and by their nature point to
conditions that could be corrected to improve workplace safety and health. (viii)
Common colds and flu will not be considered work-related. Paragraph
1904.5(b)(2)(viii) allows the employer to exclude cases of common cold or
flu, even if contracted while the employee was at work. However, in the case
of other infectious diseases such as tuberculosis, brucellosis, and hepatitis
C, employers must evaluate reports of such illnesses for work relationship,
just as they would any other type of injury or illness. (ix)
Mental illness will not be considered work-related unless the employee
voluntarily provides the employer with an opinion from a physician or other
licensed health care professional with appropriate training and experience
(psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating
that the employee has a mental illness that is work-related. Exception
(ix) is an outgrowth of proposed Exception B-11 -- Mental illness, unless
associated with post-traumatic stress. There were more than 70 comments that
addressed the issue of mental illness recordkeeping. Two commenters suggested
that OSHA postpone any decision on the issue: the National Safety Council
(Ex. 15: 359) recommended further study, and the AFL-CIO (Ex. 15: 418) stated
that the problem of mental illness in the workplace was so prevalent and so
important that it should be handled in a separate rulemaking devoted to this
issue. A
few commenters, including NIOSH (Ex. 15: 407), the American Psychological
Association (Ex. 15: 411), the AFL-CIO (Ex. 14: 418), the United Steelworkers
of America (Ex. 15: 429), and the United Brotherhood of Carpenters Health and
Safety Fund of North America (Ex. 15: 350) argued that recording should not
be limited to post-traumatic stress as OSHA had proposed but should instead
include a broader range of mental disorders. The primary arguments of this
group of comments were: §
Workers are afflicted with a
number of mental disorders caused or exacerbated by work, and the statistics
should include those disorders just as they include physical disorders; §
If the records include only
post-traumatic stress as a mental disorder, many work-related cases of mental
illness will go unreported (6,000 mental illness cases are reported to the
BLS and involve days away from work, but less than 10% of these are
post-traumatic stress cases), and the statistics will be skewed and
misinterpreted; §
Workers' compensation does not
restrict compensable mental illnesses to post-traumatic stress cases; §
Employers are recording and
reporting all mental disorders now and thus would not be burdened by
continuing the practice. Arguments
in support of treating mental illnesses no differently from any other injury
or illness were made by the American Psychological Association (Ex. 15: 411): The
American Psychological Association strongly opposes OSHA's proposal to
consider a mental illness to be work related only if it is "associated
with post-traumatic stress." We feel that this proposal disregards an
accumulating body of research showing the relationship between mental
health/illness and workplace stressors. Mental illness associated with post
traumatic stress is only one form of mental illness and use of this singular
definition would exclude much of the mental illness affecting our nation's
workforce. Job
stress is perhaps the most pervasive occupational health problem in the
workplace today. There are a number of emotional and behavioral results and
manifestations of job stress, including depression and anxiety. These mental
disorders have usually been captured under the "mental illness"
category but would no longer be recognized if the proposed reporting
guidelines were enacted. The
1985 National Health Interview Survey (Shilling & Brackbill, 1987)
indicated that approximately 11 million workers reported health-endangering
levels of "mental stress" at work. A large and growing body of
literature on occupational stress has identified certain job and
organizational characteristics as having deleterious effects on the
psychological and physical health of workers, including their mental health.
These include high workload demands coupled with low job control, role
ambiguity and conflict, lack of job security, poor relationships with
coworkers and supervisors, and repetitive, narrow tasks (American
Psychological Association, 1996). These include role stressors and demands in
excess of control. More precise analyses reveal that specific occupations and
job factors present particular risks. For example, machine-paced workers
(involving limited worker control of job demands) have one of the highest
levels of anxiety, depression, and irritation of 24 occupations studied
(Caplan et al., 1975). Health professionals (e.g., physicians,
dentists, nurses, and health technologists) have higher than expected rates
of suicide which is most often related to depression (Milham, 1983) and of
alcohol and drug abuse (Hoiberg, 1982). Nurses and other health care workers
have increased rates of hospitalizations for mental disorders (Gundersson
& Colcord, 1982; Hoiberg, 1982). This information about specific risks
within different occupations provides important information for possible
intervention and training to improve conditions while at the same time,
indicating the possibility of specific stressors that need to be addressed
within the job. This type information would be lost with the proposed
reporting guidelines. Fourteen
commenters opposed having to record mental illness cases of any kind (Exs.
15: 78, 133, 184, 248, 249, 250, 304, 348, 378, 395, 406, 409, 412, 424).
Their primary arguments were: §
The diagnosis of mental
illnesses is subjective and unreliable; §
It is often impossible, even
for a health care professional, to determine objectively which mental
disorders are work-related and which are not; §
Workers have a right to
privacy about mental conditions that should not be violated; employers fear
the risk of invasion of privacy lawsuits if they record these cases on
"public records"; because of confidentiality concerns, workers are
unlikely to disclose mental illnesses, and employers will therefore be unable
to obtain sufficient information to make recordability determinations; §
Mental illnesses are beyond
the scope of the OSHA Act; Congress intended to include only "recognized
injuries or illnesses"; §
Recording mental disorders
opens the door to abuse; workers may "fake" mental illnesses, and
unions may encourage workers to report mental problems as a harassment
tactic; and §
No useful statistics will be
generated by such recording. The
American Iron and Steel Institute (AISI) (Ex.15: 395) expressed the concerns
of the group of employers opposed to any recording of mental conditions: OSHA
should eliminate its proposed recording requirements for mental illness.
OSHA's proposed rule includes changes in an employee's psychological
condition as an "injury or illness," and [proposed] Appendix A
presumes that mental illness "associated with post-traumatic
stress" is work related. Employers, employees, and OSHA have been wrestling
for 25 years with the proper recording of fairly simple injuries like back
injuries, sprains, and illnesses caused by chemical exposures. Requiring
employers to record something as vague as psychological conditions will
impose impossible burdens on employers (and compliance officers) and thus
will create an unworkable recordkeeping scheme. Moreover,
too little is known about the etiology of most mental conditions to justify
any presumption or conclusion that a condition that surfaces at work was
"caused" by something in the work environment. It is hard to
imagine a mental illness appearing at work that is not a manifestation of a
preexisting condition or predisposition. Thus, the only sensible approach is
to exclude all mental illnesses from recording requirements. Many
commenters from business and trade associations either agreed with OSHA's
proposal or recommended an even stricter limitation on recordable mental
disorders (see, e.g., Exs. 33, 15: 27, 31, 38, 46, 79, 122, 127, 132,
153, 170, 176, 181, 199, 203, 226, 230, 231, 273, 277, 289, 301, 305, 307,
308, 313, 325, 332, 352, 353, 368, 384, 387, 389, 392, 410, 427, 430, 434).
Points raised by these commenters included recommendations that OSHA should
require: §
Recording only of those mental
illnesses that arise from a single, work-related traumatic or catastrophic
event, such as a workplace explosion or an armed robbery; §
Recording only of those mental
illnesses that are directly and substantially caused by a workplace incident; §
Recording only of diagnosed
mental illnesses resulting from a single workplace event that is recognized
as having the potential to cause a significant and severe emotional response; §
Recognition only of
post-traumatic stress cases or related disorders that include physical
manifestations of illness and that are directly related to specific,
objectively documented, catastrophic work-related events; and §
Recording only of diagnosed
conditions directly attributable to a traumatic event in the workplace,
involving either death or severe physical injury to the individual or a
co-worker. Several
commenters suggested the use of a medical evaluation to determine diagnosis
and/or work-relationship in cases of mental illness (see, e.g., Exs.
15: 65, 78, 105, 127, 170, 181, 184, 226, 230). For example, the Aluminum
Company of America (Ex. 15: 65) stated that: OSHA
should define mental health conditions for recordkeeping purposes as
conditions diagnosed by a licensed physician or advanced health care
practitioner with specialized psychiatric training (i.e., psychiatric
nurse practitioner). Work-relatedness of the mental health condition should
be determined by a psychiatric independent medical evaluation. A
comment from the Department of Energy (Ex. 15: 163) stated that any diagnosis
of mental illness should be made by at least two qualified physicians, and
CONSOL Inc. (Ex. 15: 332) and Akzo Nobel (Ex. 15: 387) wanted the rule to
require that any such diagnosis meet the criteria of the Diagnostic and
Statistical Manual, Version IV (DSM-IV). Commenters had different opinions
about the minimum qualifications necessary for a health care professional to
make decisions about mental health conditions; specifically, some commenters
urged OSHA to exclude "counselors" (Ex. 15: 226) or to include
"only psychiatrists and Ph.D. psychologists" (Ex. 15: 184). A
number of commenters suggested excluding from the requirement to record any
mental illness related to personnel actions such as termination, job
transfer, demotions, or disciplinary actions (see, e.g., Exs. 15: 68,
127, 136, 137, 141, 176, 184, 224, 231, 266, 273, 278, 301, 395, 424). The
New York Compensation Board (Ex. 15: 68) noted that New York's workers'
compensation law excludes such cases by specifying that mental injuries are
compensable with the exception of injuries that are the "direct
consequence of a lawful personnel decision involving a disciplinary action,
work evaluation, job transfer, demotion, or termination taken in good faith
by the employer." Finally,
several employers raised the issues of the privacy of an employee with a
mental disorder, the need to protect doctor-patient confidentiality, and the
potential legal repercussions of employers breaching confidentiality in an
effort to obtain injury and illness information and in recording that
information (see, e.g., Exs. 15: 78, 153, 170, 195, 260, 262, 265,
277, 348, 392, 401, 406, 409). Some of these commenters suggested that an
employer should only have the obligation to record after the employee has
brought the condition to the attention of the employer, either directly or
through medical or workers' compensation claims, and in no case should
doctor-patient confidentiality be breached. (Issues related to
confidentiality of the Log are discussed in detail in the summary and
explanation of § 1904.35, Employee Involvement.) After
a review of the comments and the record on this issue, OSHA has decided that
the proposed exception, which would have limited the work-relatedness (and
thus recordability) of mental illness cases to those involving post-traumatic
stress, is not consistent with the statute or the objectives of the
recordkeeping system, and is not in the best interest of employee health. The
OSH Act is concerned with both physical and mental injuries and illnesses,
and in fact refers to "psychological factors" in the statement of
Congressional purpose in section 2 of the Act (29 U.S.C. 651(b)(5)). In
addition, discontinuing the recording of mental illnesses would deprive OSHA,
employers and employees, and safety and health professionals of valuable
information with which to assess occupational hazards and would additionally
skew the statistics that have been kept for many years. Therefore, the final
rule does not limit recordable mental disorders to post traumatic stress
syndrome or any other specific list of mental disorders. OSHA also does not
agree that recording mental illnesses will lead to abuse by employees or
others. OSHA has required the recording of these illnesses since the
inception of the OSH Act, and there is no evidence that such abuse has occurred. However,
OSHA agrees that recording work-related mental illnesses involves several
unique issues, including the difficulty of detecting, diagnosing and
verifying mental illnesses; and the sensitivity and privacy concerns raised
by mental illnesses. Therefore, the final rule requires employers to record
only those mental illnesses verified by a health care professional with
appropriate training and experience in the treatment of mental illness, such
as a psychiatrist, psychologist, or psychiatric nurse practitioner. The
employer is under no obligation to seek out information on mental illnesses
from its employees, and employers are required to consider mental illness
cases only when an employee voluntarily presents the employer with an opinion
from the health care professional that the employee has a mental illness and
that it is work related. In the event that the employer does not believe the
reported mental illness is work-related, the employer may refer the case to a
physician or other licensed health care professional for a second opinion. OSHA
also emphasizes that work-related mental illnesses, like other illnesses,
must be recorded only when they meet the severity criteria outlined in §
1904.7. In addition, for mental illnesses, the employee's identity must be
protected by omitting the employee's name from the OSHA 300 Log and instead
entering "privacy concern case" as required by § 1904.29. Exceptions
Proposed but Not Adopted The
proposed rule contained eleven exceptions to the geographic presumption. Some
of these exceptions are included in the final rule, and therefore are
discussed above, while others were rejected for various reasons. The
following discussion addresses those proposed exemptions not adopted in the
final rule, or not adopted in their entirety. Proposed Exception B-5. Personal Tasks Unrelated To Employment Outside
of Normal Working Hours. The proposed rule included an exception for injuries and illnesses
caused solely by employees performing personal tasks at the establishment outside
of their normal working hours. Some aspects of this proposed exception have
been adopted in the final, but others have not. Almost all the comments on
this proposed exception supported it (see, e.g., Exs. 15: 31, 78, 105,
121, 159, 281, 297, 336, 341, 350), and many suggested that the exception be
expanded to include personal tasks conducted during work hours (see, e.g.,
Exs. 15: 176, 184, 201, 231, 248, 249, 250, 273, 301, 335, 348, 374).
Caterpillar, Inc. (Ex. 15: 201) offered an opinion representative of the
views of these commenters: "We agree with this exception but it should
be expanded to include any personal tasks performed during work hours if the
work environment did not cause the injury or illness. Expanding this
exemption will be consistent with the exemptions for voluntary wellness
program participation and eating, drinking, and preparing one's own
food." One
commenter disagreed with the proposed exception (the Laborers Safety and
Health Fund of North America (Ex. 15: 310)) and cited as a reason the
difficulty of determining the extent to which, for example, a case involving
an employee misusing a hazardous chemical after hours because he or she did
not receive the necessary Right-to-Know training from the employer would
qualify for this exception. Several
commenters suggested that OSHA clarify what it meant by the terms
"personal tasks" and "normal working hours" (see, e.g.,
Exs. 15: 102, 304, 345). For example, a representative of Constangy, Brooks
& Smith recommended that: More
explanation be provided regarding the further limitation on this exclusion.
For example, does this section of the proposal envision the exclusion of
injuries and illnesses resulting from personal tasks performed during
overtime (i.e., outside of normal working hours)? If I am injured while
talking to my spouse on the phone during regular business hours, must the
case be recorded, while if the same injury occurs during overtime, the case
is non-recordable? Also, how are injuries to salaried employees (who are
exempt from overtime) treated under this aspect of the proposal? I submit
that if these issues are not fully "fleshed out" in the proposal or
its preamble, this subparagraph will result in the creation of more questions
than it resolves. The
National Federation of Independent Business (NFIB) (Ex. 15: 304) asked OSHA
"to specify that the 'normal working hours' refers to the work schedule
of the employee not the employer. If this distinction is not made clear, this
proposal arguably could deny this exemption to establishments which operate
during non-standard operating hours (e.g., 24 hours a day, weekends,
after 5 PM, etc.) -- and we assume this is not OSHA's intent." OSHA
believes that injuries and illnesses sustained by employees engaged in purely
personal tasks at the workplace, outside of their assigned working hours, are
not relevant for statistical purposes and that information about such
injuries and illnesses would not be useful for research or other purposes
underlying the recordkeeping requirements. OSHA has therefore decided to
include some parts of the proposed exception in the final rule. Additional
language has been added to the exception since the proposal to clarify that
the exception also applies when the employee is on the premises outside of
his or her assigned working hours, as the NFIB pointed out. OSHA
does not agree, however, with those commenters who suggested that the
exception be expanded to include personal tasks performed by employees during
work hours. As discussed in preceding sections of this summary and
explanation and in the Legal Authority discussion, there are strong legal and
policy reasons for treating an injury or illness as work-related if an event
or exposure in the work environment caused or contributed to the condition or
significantly aggravated a pre-existing condition. Under this
"but-for" approach, the nature of the activity the employee was
engaged in at the time of the incident is not relevant, except in certain
limited circumstances. Moreover, OSHA believes that it would be difficult in
many cases for employers to distinguish between work activities and personal
activities that occur while the employee is on-shift. Accordingly, the final
rule codifies parts of this proposed exception in paragraph 1904.5(b)(v) in
the following form: "The injury or illness is solely the result of an
employee doing personal tasks (unrelated to their employment) at the
establishment outside of the employee's assigned working hours." Proposed Exception B-6. Cases Resulting From Acts of Violence by Family
Members or Ex-spouses When Unrelated to Employment, Including Self-inflicted
Injuries. The
final rule does not exempt workplace violence cases from the Log, although it
does allow employers to exclude cases that involve intentionally
self-inflicted injuries. The final rule thus departs substantially from the
proposal in this respect. The proposed exception, which would have exempted
domestic violence and self-inflicted cases from the Log, drew many comments.
The comments generally fell into four categories: (1) those urging OSHA to
require the recording of all cases of violence occurring at the
establishment; (2) those recommending that no violence cases at the
establishment be recorded; (3) those recommending recordation only of
violence cases perpetrated by certain classes of individuals; and (4) those
urging OSHA to require the recording of cases involving violence related to
employment without regard to the perpetrator. The comments on the proposed
exception are discussed below. No exemption/record all injuries and illnesses arising from violent
acts. A number of
commenters objected to OSHA's proposed exemption of domestic violence cases
from the list of recordable injuries, arguing that all acts of violence
occurring at the workplace should be recorded (see, e.g., Exs. 15: 31,
54, 56, 88, 90, 91, 93, 94, 99, 101, 103, 104, 106, 111, 114, 115, 144, 186,
187, 238, 345, 362, 407, 418, 439). For example, the North Carolina
Department of Labor stated that "if an employer must log the injuries
sustained as a result of workplace violence then the employer may also
institute needed security measures to protect the employees at the
establishment. An employer should be required to log any 'preventable' injury
(above first aid) that an employee sustains at the establishment" (Ex.
15: 186). The Miller Brewing Company also supported recording all acts of
workplace violence, based on the following rationale: "I envision a
scenario involving an angry husband attempting to kill his wife but, because
he is a "bad shot," another employee is killed. Why should killing
an innocent bystander be a reportable event, whereas a fatality involving a
spouse is excluded?" (Ex. 15: 442). Exception for all violent acts. There were commenters who thought injuries
and illnesses resulting from violence were outside of OSHA's purview and
should not be recorded at all (see, e.g., Exs. 15: 28, 75, 96, 107,
203, 254, 289). For example, the Quaker Oats Company (Ex. 15: 289) stated
that "[w]orkplace violence in any form is a personal criminal act, and
in no way, shape or form should violence be labeled under hazards in the
workplace or even [be] monitored by OSHA. A person who may turn to violent
behavior from family, personal, or job dispute is a matter of NLRB [National
Labor Relations Board], law enforcement or state employment statutes, not
industrial safety." The National Restaurant Association (Ex. 15: 96)
agreed: Congress
passed the Occupational Safety and Health Act to regulate workplace hazards
dealing with the workplace environment or processes that employers could
identify and possibly protect. The Congress did not contemplate that this
statute would be used to redress incidents over which the employer has no
ability to control, such as the unpredictability of workers or nonworkers committing
violent, tortuous acts towards others. This issue was litigated
unsuccessfully by OSHA in Secretary of Labor v. Megawest Financial, Inc.,
OSHRC Doc. No. 93-2879 (June 19, 1995). OSHA apparently is attempting in this
NPR to obtain by regulatory fiat what was rejected by case law and to
displace state tort law actions by using the OSH Act to police social
behavior. Recording work-related violence except acts of certain classes of
individuals.
There were many commenters who supported the proposed exception, which would
only have excluded acts of violence on employees committed by family members
and ex-spouses and self-inflicted injuries and illnesses. The proposed
exception as drafted was supported by some commenters (see, e.g., Exs.
15: 78, 198, 350, 359). Others thought the exception should be expanded to
include not only family members and ex-spouses, but also live-in partners,
friends, and other intimates (see, e.g., Exs. 15: 80, 122, 153, 181,
213, 325, 363, 401), while others argued that the exemption should apply to
the general public, i.e., to all people (see, e.g., Exs. 15: 9, 111,
119, 151, 152, 179, 180, 239, 260, 262, 265, 272, 303, 304, 341, 356, 375,
401, 430). Typical
of comments in support of a broader exception were the remarks of the National
Oilseed Processors Association (Ex. 15: 119): The
only time violence in the work place should be considered work-related is
when it is associated with a work issue and committed by an employee or other
person linked to the business, e.g., a customer. Any other act of
violence is not under the control of the employer and should not be
considered work-related. Alabama
Shipyard Inc. (Ex. 15: 152) added: Exempting
acts of violence based strictly on acts committed by family members, a
spouse, or when self-inflicted is too limited. Instead, the exemption should
be based on the relationship of the perpetrator to the employer. The employer
should be no more responsible for some random act of violence by a crazy
individual walking in off the street who is in no way associated with the
employer than it should be for an act of violence by a family member. Southern
California Edison (Ex. 15: 111) stated that "violence is another example
that should be excluded from being work-related if the employee personally
knows the attacker. This would include family members or coworkers. Only
those acts of violence that result from random criminal activity should be
included (i.e., robbery, murder, etc.)." TU Services (Ex. 15: 262)
recommended "that only cases that involve acts of violence that are the
result of random criminal activity should be recorded. Cases that involve
anyone with a personal relationship with the employee should be
excluded." The American Feed Industry Association (Ex. 15: 204) and
United Parcel Service (Ex. 15: 424), on the other hand, argued that cases
involving workplace violence should only be recorded if the perpetrator was a
fellow employee. Record all violent acts directly related to employment regardless of
who commits the act. Commenters favoring this approach suggested that violence by family
members or others should be recorded if linked to work, but that all personal
disputes should be exempt (see, e.g., Exs. 15: 105, 146, 176, 184,
231, 273, 297, 301, 313, 336, 348, 352, 353, 374, 389, 392). The Workplace
Health and Safety Council (Ex. 15: 313) proposed the following exception: Cases
will not be considered work-related if they result solely from acts of
violence committed by one's family, or ex-spouse, or other persons when
unrelated to the worker's employment, including intentionally self-inflicted
injuries. Violence by persons on the premises in connection with the
employer's business (including thieves and former employees) is considered
work related even if committed by one's family or ex-spouse. The
American Ambulance Association (Ex. 15: 226) stated simply: "AAA
believes that OSHA should define what is work-related violence and assume
that all other acts are not work-related, and eliminate the family and
non-family distinction." The United Auto Workers (Ex. 15: 438) agreed: Incidents
of intentional violence should be recorded only if they arise from employment
activities. Incidents between employees, or between employees and
non-employees which rise from personal disputes should not be recorded.
Existing data show that the number of incidents of interpersonal violence
between coworkers or workers and intimates is small, although these incidents
do get high visibility. Therefore, exclusion of these small number of cases
will have little effect on statistical measures. Some
commenters urged OSHA to place some restrictions on the proposed exception.
For example, two commenters argued that cases involving violence should only
be recorded for occupations where there is a reasonable potential of encountering
violence (Exs. 15: 335, 409). The American Automobile Manufacturers
Association (AAMA) stated that: Workplace
violence as a reasonable function of an employee's employment should be
recorded, for example: a cashier injured in a robbery attempt at a 24-hour
retail establishment. An example of "unreasonable" recordable
workplace violence that should not be recordable (i.e., where an employee was
simply "in the wrong place at the wrong time") would be a flight
crew that perishes mid-flight from a terrorist's bomb. These cases have
nothing to do with the individual's employer, only that they happened to be
victims at the employer's place of employment. It is AAMA's understanding
that the purpose of the subject standard is to collect information pertaining
to injuries and illnesses that arise out of conditions in the workplace, with
the end objective being to use that information to correct or mitigate these
conditions so as to prevent additional injuries or illnesses. Caterpillar
Inc. (Ex. 15: 201) suggested that "a predominant contributor concept,
similar to that being proposed to help establish work-relatedness, could be
utilized in cases where the clear cause of violence is not readily
apparent." In
the final rule, OSHA has decided not to exclude from recording those injury
and illness cases involving acts of violence against employees by family
members or ex-spouses that occur in the work environment or cases involving
other types of violence-related injuries and illnesses. The final rule does
exempt from recording those cases resulting from intentionally self-inflicted
injuries and illnesses; these cases represent only a small fraction of the
total number of workplace fatalities (three percent of all 1997 workplace
violence fatalities) (BLS press release USDL 98-336, August 12, 1998). OSHA
believes that injuries and illnesses resulting from acts of violence against
employees at work are work-related under the positional theory of causation.
The causal connection is usually established by the fact that the assault or
other harmful event would not have occurred had the employee not, as a
condition of his or her employment, been in the position where he or she was
victimized. Moreover, occupational factors are directly involved in many
types of workplace violence, such as assaults engendered by disputes about
working conditions or practices, or assaults on security guards or cashiers
and other employees, who face a heightened risk of violence at work.
Accordingly, OSHA does not accept the premise, advanced by some commenters,
that workplace violence is outside the purview of the statute. In
some cases, acts of violence committed by a family member or ex-spouse at the
workplace may be prevented by appropriate security measures enforced by
employers. Moreover, information about workplace injuries due to assaults by
family members or ex-spouses is relevant and should be included in the
overall injury and illness data for statistical and research purposes.
Omitting the proposed exception also obviates the need for employers to make
distinctions among various degrees of personal relationships. Accordingly,
the final rule does not allow employers to exclude injuries and illnesses
resulting from violence occurring in the workplace from their Logs. However,
some cases of violence will be excluded under § 1904.5(b)(2)(v), which
exempts an injury or ilness that is solely the result of an employee doing
personal tasks (unrelated to their employment) at the establishment outside
of the employee's assigned working hours. For example, if an employee arrives
at work early to use a company conference room for a civic club meeting, and
is injured by some violent act, the case would not be considered work
related. OSHA
has decided to maintain the exclusion for intentionally self-inflicted
injuries that occur in the work environment in the final rule. The Agency
believes that when a self-inflicted injury occurs in the work environment,
the case is analogous to one in which the signs or symptoms of a
pre-existing, non-occupational injury or illness happen to arise at work, and
that such cases should be excluded for the same reasons. (see paragraph
1904.5(b)(2)(ii)). The final rule at paragraph 1904.5(b)(2)(vi) therefore
includes that the part of exception proposed that applied to injuries and
illnesses that are intentionally self-inflicted. Proposed Exception B-7. Parking Lots and Access Roads. This proposed exception, which in
effect would have narrowed the definition of "establishment" to
exclude company parking lots, had approximately equal numbers of commenters
in favor and opposed. The final rule includes some aspects of the proposed
exemption. In favor of recording injuries in parking lots and on access roads
were the commenters represented by Exs. 24, 15: 41, 72, 310, 362. Typical of
the views of this group was that of the Association of Operating Room Nurses
(AORN) (Ex. 15: 72), which noted that: [e]mployee
parking lots should be included in defining "work-related."
Perioperative nurses and other surgical service providers may be required on
a "call" basis during the night hours. Consequently they enter and
leave parking lots at unusual times when traffic in the lots is minimal.
These providers may be at increased risk for random violence. Absent the
"call" requirement, the employee would not be in the parking lot at
the time of the injury. Further, if the employee is paid for travel time to
and/or from the facility, injuries occurring during that period should be
considered "work-related." The
AFL-CIO (Ex. 15: 362) added that employers may be less likely to provide
lighting, security and other controls that could prevent violent assaults in
parking lots and access roads if injuries occurring there are not recordable. The
opposite view, in support of the proposed exception for parking lots, was
expressed by several employers (see, e.g., Exs. 15: 27, 45, 176, 185,
195, 231, 248, 249, 250, 273, 289, 301, 304, 341, 363). The National
Wholesale Druggists Association (NWDA) (Ex. 15: 185) supported the proposed
exclusion: [i]nevitably,
activities that take place in the company parking lot or on the company
access road are not only outside of the employer's dominion and control but
also are most often not related in any way to the employee's work. Including
injuries that occur in these locations as part of the OSHA log would lead to
an inaccurate reflection of injury data as a whole. OSHA should retain this
exemption. An employer has no control over an employee's commute to and from
the workplace, with the exception of arrival and departure times for the work
day. If OSHA requires the reporting of injuries that occur during the
employee's commute, the number of injuries reported would increase
dramatically. The
National Federation of Independent Business (Ex. 15: 304) stated that the
proposed exception would be consistent with workers' compensation rules. OSHA
has concluded that a limited exception for cases occurring on parking lots is
appropriate but that the broader exception proposed is not. The final rule
thus provides an exception for motor vehicle injury cases occurring when
employees are commuting to and from work. As discussed in the preamble that
accompanies the definition of "establishment" (see Subpart G of the
final rule), OSHA has decided to rely on activity-based rather than location-based
exemptions in the final rule. The parking lot exception in the final rule
applies to cases in which employees are injured in motor vehicle accidents
commuting to and from work and running personal errands (and thus such cases
are not recordable), but does not apply to cases in which an employee slips
in the parking lot or is injured in a motor vehicle accident while conducting
company business (and thus such cases are recordable). This exception is
codified at paragraph 1904.5(b)(2)(vii) of the final rule. Proposed Exception B-8. Never Engaged in an Activity That Could Have
Placed Stress On the Affected Body Part. This proposed exception would have allowed
employers not to record cases if no aspect of the worker's job placed stress
on the affected body part or exposed the worker to any chemical or physical
agent at work that could be associated with the observed injury or illness.
This proposed exception received support from a number of employers (see, e.g.,
Exs. 15: 176, 185, 231, 273, 301, 341, 359, 406). For example, the National
Wholesale Druggists' Association stated that "Such injuries or illnesses
are obviously not caused by any work-related activities and should therefore
be excluded from any reporting and recording requirements' (Ex. 15: 185). Deleting
the word "never" from the proposed exception was also supported by
many respondents (see, e.g., Exs. 15: 146, 279, 304, 335, 374, 392,
395, 430, 431, 442). Representative of the latter group is the following
comment by the BF Goodrich Company (Ex. 15: 146): The
use of the term "never" in this exemption requires too harsh a test
for case evaluation. A back injury should not be recordable because the
employee lifted a box 10 years previous to the injury. A more reasonable
evaluation criteria meeting the same intent could be stated as below: The
injury or illness is not work-related if it cannot be associated with the
employee's duties or exposures at work. Taking
an opposing view to the proposed exception were the AFL-CIO (Ex. 15: 418),
the United Steelworkers of America (Ex. 15: 429), and the United Brotherhood
of Carpenters Health and Safety Fund of North America (Ex. 15: 350). The
AFL-CIO stated that: We
believe when evaluating injuries this approach could logically work in most
cases, but in cases of chemical exposures and musculoskeletal disorders this
logic does not hold merit. If the Agency attempts to apply this approach to
the aforementioned types of cases, the employer will have to become an
epidemiologist, ergonomist or toxicologist to determine if these cases meet
the recordability criteria set forth in this proposal . . . . We encourage
the Agency to omit this provision from the final standard. Because of the
increasing numbers of workers being medically diagnosed for multiple chemical
sensitivity and the exposures some workers receive without any knowledge
until years after the incident, the Agency must carefully think about the
inclusion of this provision to the final standard. Similarly,
the Carpenters Fund (UBC H&SF) argued that: [T]his
[exception] would exclude those cases where symptoms arise at work, but are
caused by accidents or exposures away from work. The UBC H&SF agrees with
the theory of this provision, but emphasizes that the task placed on
employers to determine causation by exposures away from work would in many
cases be impossible. Also the apportionment of causation is not discussed in
this analysis and would allow some to record cases .01 percent caused by work
and others to not record cases 99 percent caused by work. For the foregoing
reasons, that this requirement is unworkable, we urge it be dropped from the
final rule. Based
on a review of the record on this issue, OSHA has decided not to include this
proposed exception in the final rule. On reflection, the proposed language is
confusing and would be difficult to apply. The underlying concept, to the
extent it has merit, is better covered in the exemption paragraph
1904.5(b)(2)(ii). As discussed in preceding sections of this summary and
explanation for section 1904.5, there are sound legal and policy
justifications for defining work-relationship broadly to include injuries and
illnesses that result from events or exposures in the work environment. The
proposed exception would effectively "swallow" the geographic
presumption theory of causation underpinning the rule by shifting the focus
of enquiry in every case to the employee's specific job duties. As OSHA has
noted, the geographic presumption includes some cases in which the illness or
injury cannot be directly linked to the stresses imposed by job duties. For
example, if an employee trips while walking on a level factory floor and
breaks his arm, the injury should be recordable. The comments supporting the
proposed exemption do not, in OSHA's view, provide a basis for excluding
these types of cases from recording on the Log. Proposed Exception B-9. Voluntary Community Activities Away From The
Employer's Establishment. This proposed exemption drew two comments supporting it as written
(Exs. 15: 78, 304), and several other participants recommended that it be
expanded to exclude injuries and illnesses that arise from voluntary
community activities wherever they occur (see, e.g., Exs. 15: 146,
184, 272, 303, 359). Typical of these comments is one from U.S. West (Ex. 15:
184), which stated that "[e]mphasis should be on the activity that
occurred, not the location of the activity." The
United Brotherhood of Carpenters, Health & Safety Fund of North America
(Ex. 15: 350) agreed with the proposed exception, except for cases where the
employee is present as a condition of employment or in the employer's
interest. It commented: [A]t
the surface this exception seems to make perfect sense. However, real
employment relationships and real employer-community relationships do not fit
such clean characterizations. Many times employees are forced to become
"team players" and volunteer for unpaid off-establishment
activities. Many employers engage in community "good will"
generating activities by having their employees volunteer. For the above
reasons we urge that cases occurring away from the employer's establishment
be considered work-related if the employee is engaged in any activity in the
interest of the employer or is there as a condition of employment. OSHA
has decided not to include this proposed exception in the final rule because
the final rule's overall definition of work-environment addresses this
situation in a simple and straightforward way. If the employee is taking part
in the activity and is either working or present as a condition of
employment, he or she is in the work environment and any injury or illness
that arises is presumed to be work-related and must then be evaluated for its
recordability under the general recording criteria. Thus, if the employee is
engaged in an activity at a location away from the establishment, any injury
or illness occurring during that activity is considered work-related if the
worker is present as a condition of employment (for example, the worker is
assigned to represent the company at a local charity event). For those
situations where the employee is engaged in volunteer work away from the
establishment and is not working or present as a condition of employment, the
case is not considered work-related under the general definition of work-relationship.
There is thus no need for a special exception. Proposed Exception B-10. The Case Results Solely From Normal Body
Movements, not Job-Related Motions or Contribution from the Work Environment. This proposed exception generated
some support (see, e.g., Exs. 15: 107, 147, 173, 185, 341, 348, 373,
392) but also caused much confusion about the meaning of the phrases
"normal body movement" and "job-related" (see, e.g.,
Exs. 15: 80, 83, 89, 98, 146, 176, 225, 226, 231, 239, 273, 301, 304, 313,
352, 353, 355, 359, 406, 424). The following comment by the American Gas
Association (Ex. 15: 225) is representative of those in this group: '[N]ormal
body movements' needs clarification since OSHA has not set forth any reasons
for excluding it. OSHA's language states that there is an exclusion "* *
* provided that activity does not involve a job related motion and the work
environment does not contribute to the injury or illness". OSHA goes on
to elaborate that illnesses or injuries should not be recorded if they are not
related to an identifiable work activity. However, OSHA also states the
exclusion would not apply if it involved repetitive motion or if the work
environment either caused or contributed to the injury or illness. This
language is ambiguous and redundant. Repetitive motion injury/illness
conditions should be treated in the same way as any other condition. There
should be a work-related exclusion if the work environment did not cause or
contribute to the injury/illness. LeRoy
E. Euvard, Jr., Safety and Environmental Staff (Ex. 15: 80) added: [T]he
definition of work-related resulting from normal body movements is too broad.
The definition excludes walking, talking, etc. 'provided the activity does
not involve a job-related motion.' Does that mean that if an employee is
walking to the rest room and becomes ill, the illness is not work-related,
but, if he/she is walking from the rest room back to his/her work station, it
is work-related? If the employee is engaged in social talk, the illness is
not work-related, but, if he/she is engaged in a conversation regarding some
aspect of work, the illness is work-related? Other
commenters objected to the concept of excluding cases resulting from normal
body movements from the Log (Ex. 56X, pp. 51, 52; Ex. 15: 418). Walter Jones
of the International Brotherhood of Teamsters used the following example: We
do take opposition to some of the exceptions. For cases that result in normal
body movement, I'd like to just bring another example up. We have a member
who after spending most of his morning sorting about 700 different boxes, on
break in a normal, unencumbered motion, dropped his pencil and picked it up,
had a back spasm and his back went out. And I know that according to the way
the standard is written, or the regulation is written, that this can be
attributed to work activity. But the reason we bring it up is we need to be
careful in trying to be that exact because an employer will take an
uninformed employee and may take liberties (Ex. 56X, pp. 51, 52). OSHA
has decided not to include a recordkeeping exception for injuries or
illnesses associated with normal body movements in the final rule. The
proposed provision was intended to exclude the recording of cases that
happened to occur in the work environment without any real work contribution.
However, the comments on this issue have convinced OSHA that the proposed
provision is unnecessary, would be unworkable, and would result in incomplete
and inconsistent data. The case cited by the Teamsters is but one example of
a legitimate work-related injury that could go unrecorded if OSHA were to
adopt this provision in the final rule. Further, the final rule already makes
clear that injuries and illnesses that result solely from non-work causes are
not considered work-related and therefore are excluded from the Log, and
establishes the requirements employers must follow to determine
work-relationship for an injury or illness when it is unclear whether the
precipitating event occurred in the workplace or elsewhere (see paragraph 1904.5(b)(3)).
According to the requirements in that section, the employer must evaluate the
employee's work duties and the work environment to decide whether it is more
likely than not that events or exposures in the work environment either
caused or contributed to the condition or significantly aggravated a
pre-existing condition. If so, the case is work-related. Additional
Exemptions Suggested by Commenters but Not Adopted In
addition to commenting on the eleven proposed exceptions, interested parties
suggested adding some exceptions to the final rule. This section contains a
discussion of those additional exemptions suggested by commenters but not
adopted in the final rule. Acts of God:
The International Dairy Foods Association (IDFA) suggested that OSHA exclude
any injury or illness that was "the result of an "Act of God,"
such as, but not limited to, an earthquake or a tornado" (Ex. 15: 203).
OSHA has not adopted such an exception because doing so would not be in
keeping with the geographic presumption underpinning this final rule, and
would exclude cases that are in fact work-related. For example, if a worker
was injured in a flood while at work, the case would be work-related, even
though the flood could be considered an act of God. Accordingly, if workplace
injuries and illnesses result from these events, they must be entered into
the records (for a more detailed discussion of this point, see the Legal
Authority section, above). Phobias:
The American Crystal Sugar Company (Ex. 15: 363) suggested that OSHA add an
exception from recording for cases involving phobias: I
would also like to suggest exempting an employee's loss of consciousness
based on a fear-based phobia, i.e., fainting at the sight of blood.
Occasionally an OSHA regulation may require blood tests, such as checking
lead levels in blood. There are a few employees that will lose consciousness
at the sight of a needle. These phobias are not limited to medical
procedures, but may include spiders, snakes, etc. In several of our
factories, the occupational health nurse will administer tetanus boosters as
a service to our employees. Employees that have a phobia about injections can
(and do) lose consciousness, which now makes what was intended as a service
an OSHA recordable accident. OSHA
has not included an exception from recording in the final recordkeeping
regulation for phobias or any other type of mental illness. The scenario
described by the American Crystal Sugar Company, which involved fainting from
fear of an injection offered as a service to employees, might be considered
non-work-related under the exception codified at paragraph 1904.5(b)(2)(iii),
Voluntary participation in a medical activity. OSHA also believes that it
would be unreasonable to omit a case of loss of consciousness resulting from
the administration of a blood test for lead exposure at work. These tests are
necessitated by the employee's exposure to lead at work and are required by
OSHA's lead standard (29 CFR 1910.1025). The other scenarios presented by
these commenters, involving spiders, snakes, etc., would also be work-related
under the geographic presumption. Illegal activities and horseplay: Several commenters suggested an exception
for an employee engaging in illegal activities, horseplay, or failing to
follow established work rules or procedures (see, e.g., Exs. 15: 49,
69, 117, 151, 152, 179, 180, 203, 368, 393). The comment of the American
Network of Community Options and Resources (ANCOR) (Ex. 15: 393) is
representative of those on this issue: Employees
who fail to follow employer training and best practices or violate
established policy present a threat not only to other employees and
consumers/customers, but also to employers held responsible for the
consequences of their actions. For example, ANCOR does not believe that
employers should have to use these recording and reporting procedures when
illnesses and injuries are a result of an employee engaged in illegal
activities or fails/ violates established procedures. OSHA
has not adopted any of these recommended exceptions in the final
recordkeeping rule because excluding these injuries and illnesses would be
inconsistent with OSHA's longstanding reliance on the geographic presumption
to establish work-relatedness. Furthermore, the Agency believes that many of
the working conditions pointed to in these comments involve occupational
factors, such the effectiveness of disciplinary policies and supervision.
Thus, recording such incidents may serve to alert both the employer and
employees to workplace safety and health issues. Non-occupational degenerative conditions: Two commenters also asked OSHA to include in
the final rule a recording exception for non-occupational degenerative
conditions (Exs. 15: 176, 248) such as high blood pressure, arthritis,
coronary artery disease, heart attacks, and cancer that can develop
regardless of workplace exposure. OSHA has not added such an exception to the
rule, but the Agency believes that the fact that the rule expects employers
confronted with such cases to make a determination about the extent to which,
if at all, work contributed to the observed condition will provide direction
about how to determine the work-relatedness of such cases. For example, if
work contributes to the illness in some way, then it is work-related and must
be evaluated for its recordability. On the other hand, if the case is wholly
caused by non-work factors, then it is not work-related and will not be
recorded in the OSHA records. Determining
Whether the Precipitating Event or Exposure Occurred in the Work Environment
or Elsewhere Paragraph
1904.5(b)(3) of the final rule provides guidance on applying the geographic
presumption when it is not clear whether the event or exposure that
precipitated the injury or illness occurred in the work environment or
elsewhere. If an employee reports pain and swelling in a joint but cannot say
whether the symptoms first arose during work or during recreational
activities at home, it may be difficult for the employer to decide whether
the case is work-related. The same problem arises when an employee reports
symptoms of a contagious disease that affects the public at large, such as a
staphylococcus infection ("staph" infection) or Lyme disease, and
the workplace is only one possible source of the infection. In these situations,
the employer must examine the employee's work duties and environment to
determine whether it is more likely than not that one or more events or
exposures at work caused or contributed to the condition. If the employer
determines that it is unlikely that the precipitating event or exposure
occurred in the work environment, the employer would not record the case. In
the staph infection example given above, the employer would consider the case
work-related, for example, if another employee with whom the newly infected
employee had contact at work had been out with a staph infection. In the Lyme
disease example, the employer would determine the case to be work-related if,
for example, the employee was a groundskeeper with regular exposure to
outdoor conditions likely to result in contact with deer ticks. In
applying paragraph 1904.5(b)(3), the question employers must answer is
whether the precipitating event or exposure occurred in the work environment.
If an event, such as a fall, an awkward motion or lift, an assault, or an
instance of horseplay, occurs at work, the geographic presumption applies and
the case is work-related unless it otherwise falls within an exception. Thus,
if an employee trips while walking across a level factory floor, the
resulting injury is considered work-related under the geographic presumption
because the precipitating event -- the tripping accident -- occurred in the
workplace. The case is work-related even if the employer cannot determine why
the employee tripped, or whether any particular workplace hazard caused the
accident to occur. However, if the employee reports an injury at work but
cannot say whether it resulted from an event that occurred at work or at
home, as in the example of the swollen joint, the employer might determine that
the case is not work-related because the employee's work duties were unlikely
to have caused, contributed to, or significantly aggravated such an injury. Significant
Workplace Aggravation of a Pre-existing Condition In
paragraph 1904.5(b)(4), the final rule makes an important change to the
former rule's position on the extent of the workplace aggravation of a
preexisting injury or illness that must occur before the case is considered
work-related. In the past, any amount of aggravation of such an injury or
illness was considered sufficient for this purpose. The final rule, however,
requires that the amount of aggravation of the injury or illness that work
contributes must be "significant," i.e., non-minor, before
work-relatedness is established. The preexisting injury or illness must be
one caused entirely by non-occupational factors. A
number of commenters on OSHA's proposed rule raised the issue of recording
injuries that were incurred off the job and then were aggravated on the job
(see, e.g., Exs. 15: 60, 80, 95, 107, 176, 201, 204, 213, 281, 308,
313, 338, 368, 375, 395, 396, 406, 424, 427, 428, 441). The National Roofing
Contractors Association (NRCA) commented that "[t]his definition
[includes] aggravating a pre-existing condition. While NRCA believes that the
exemptions provided [in the proposed rule] are a step in the right direction,
this provision could require that an employer record an injury that
originally occurred outside the employer's workplace. The motion or activity
that aggravated the injury may not represent any substantial hazard, yet
would still be recorded" (Ex. 15: 441). The United Parcel Service (Ex.
15: 424) objected to the inclusion of the concept of aggravation in the
definition of work-relatedness: [a]nother
flaw in the proposal arises from its proposed recording requirement in the
case of "aggravation" of prior conditions. As drafted, the rule
would require reporting as an occupational injury or illness a
musculoskeletal condition arising away from work which becomes aggravated by
performing job duties (i.e., the job increases discomfort), when accompanied
by swelling or inflammation. Thus, an employee who hurts his wrist playing
tennis on the weekend and who returns to his word processing job Monday would
have a reportable MSD under the rule. With such criteria for recordation,
reported occupational injuries and illnesses would skyrocket, and yet most
often these reports would reflect conditions arising away from work. The
Food Distributors International (Ex. 15: 368) recommended: [i]t
is very important that injuries that are not truly work-related not be the
subject of mandatory recording. For example, if an employee were injured off
the job and came to work to "try it out" (i.e., to see if he or she
was capable of performing the normal job functions), resulting pain might be
seen as "aggravation" and become recordable on that basis. The true
source of injury, however, would be outside the workplace, and recording
would produce an artificially inflated rate of injuries and illnesses, and a
profile that was inaccurate. Several
commenters were concerned about the aggravation of preexisting injuries in
the context of recurrences or new cases (see, e.g., Exs. 15: 210, 204,
338) . For example, Caterpillar Inc. (Ex. 15: 201) stated that: [b]ack
injuries, repetitive motion injuries, and other chronic conditions which have
degenerative or aging causal factors often recur without a new work accident
and further without a new work accident capable of causing the underlying
condition. Even if a new work accident occurs, the accident should be serious
enough to cause the underlying condition before the new case presumption is
applicable. The effect of this would be to eliminate minor aggravation of
preexisting conditions from consideration as new injuries. LeRoy
E. Euvard, Jr., of the Safety and Environmental Staff Company (Ex. 15: 80),
suggested that: [a]ggravation
of a pre-existing condition should not be recordable if normal body movements
or events cause the aggravation. For example, a smoker with asthma or other
obstructive airway disease may experience shortness of breath while climbing
a flight of stairs. A person with degenerative disk disease may experience
pain while lifting a normal bag of groceries. If performing similar
activities at work likewise aggravates the condition, it should not be
recordable. As
discussed above, OSHA agrees that non-work-related injuries and illnesses
should not be recorded on the OSHA Log. To ensure that non-work-related cases
are not entered on the Log, paragraph 1904.5(b)(2)(ii) requires employers to
consider as non-work-related any injury or illness that "involves signs
or symptoms that surface at work but result solely from a non-work-related
event or exposure that occurs outside the work environment." The
Agency also believes that preexisting injury or illness cases that have been
aggravated by events or exposures in the work environment represent cases
that should be recorded on the Log, because work has clearly worsened the
injury or illness. OSHA is concerned, however, that there are some cases
where work-related aggravation affects the preexisting case only in a minor
way, i.e., in a way that does not appreciably worsen the preexisting
condition, alter its nature, change the extent of the medical treatment,
trigger lost time, or require job transfer. Accordingly, the final rule
requires that workplace events or exposures must "significantly"
aggravate a pre-existing injury or illness case before the case is presumed
to be work-related. Paragraph 1904.5(a) states that an injury or illness is
considered work-related if "an event or exposure in the work environment
either caused or contributed to the resulting condition or significantly
aggravated a pre-existing injury or illness." Paragraph
1904.5(b)(4) of the final rule defines aggravation as significant if the
contribution of the aggravation at work is such that it results in tangible
consequences that go beyond those that the worker would have experienced as a
result of the preexisting injury or illness alone, absent the aggravating
effects of the workplace. Under the final rule, a preexisting injury or
illness will be considered to have been significantly aggravated, for the
purposes of OSHA injury and illness recordkeeping, when an event or exposure
in the work environment results in: (i) Death, providing that the preexisting
injury or illness would likely not have resulted in death but for the
occupational event or exposure; (ii) Loss of consciousness, providing that
the preexisting injury or illness would likely not have resulted in loss of
consciousness but for the occupational event or exposure; (iii) A day or days
away from work or of restricted work, or a job transfer that otherwise would
not have occurred but for the occupational event or exposure; or (iv) Medical
treatment where no medical treatment was needed for the injury or illness
before the workplace event or exposure, or a change in the course of medical
treatment that was being provided before the workplace event or exposure.
OSHA's decision not to require the recording of cases involving only minor
aggravation of preexisting conditions is consistent with the Agency's efforts
in this rulemaking to require the recording only of non-minor injuries and
illnesses; for example, the final rule also no longer requires employers to
record minor illnesses on the Log. Preexisting
Conditions Paragraph
1904.5(b)(5) stipulates that pre-existing conditions, for recordkeeping
purposes, are conditions that resulted solely from a non-work-related event
or exposure that occurs outside the employer's work environment. Pre-existing
conditions also include any injury or illness that the employee experienced
while working for another employer. Off
Premises Determinations Employees
may be injured or become ill as a result of events or exposures away from the
employer's establishment. In these cases, OSHA proposed to consider the case
work-related only if the employee was engaged in a work activity or was
present as a condition of employment (61 FR 4063). In the final rule,
(paragraph 1904.5(b)(1)) the same concept is carried forward in the
definition of the work environment, which defines the environment as
including the establishment and any other location where one or more
employees are working or are present as a condition of their employment. Thus,
when employees are working or conducting other tasks in the interest of their
employer but at a location away from the employer's establishment, the
work-relatedness of an injury or illness that arises is subject to the same
decision making process that would occur if the case had occurred at the
establishment itself. The case is work-related if one or more events or
exposures in the work environment either caused or contributed to the
resulting condition or significantly aggravated a pre-existing condition, as
stated in paragraph 1904.5(a). In addition, the exceptions for determining
work relationship at paragraph 1904.5(b)(2) and the requirements at paragraph
1904.5(b)(3) apply equally to cases that occur at or away from the
establishment. As
an example, the work-environment presumption clearly applies to the case of a
delivery driver who experiences an injury to his or her back while loading
boxes and transporting them into a building. The worker is engaged in a work
activity and the injury resulted from an event -- loading/unloading --
occurring in the work environment. Similarly, if an employee is injured in an
automobile accident while running errands for the company or traveling to
make a speech on behalf of the company, the employee is present at the scene
as a condition of employment, and any resulting injury would be work-related. Employees
on Travel Status The
final rule continues (at § 1904.5(b)(6)) OSHA's longstanding practice of
treating injuries and illnesses that occur to an employee on travel status as
work-related if, at the time of the injury or illness, the employee was
engaged in work activities "in the interest of the employer."
Examples of such activities include travel to and from customer contacts,
conducting job tasks, and entertaining or being entertained if the activity
is conducted at the direction of the employer. The
final rule contains three exceptions for travel-status situations. The rule
describes situations in which injuries or illnesses sustained by traveling
employees are not considered work-related for OSHA recordkeeping purposes and
therefore do not have to be recorded on the OSHA 300 Log. First, when a
traveling employee checks into a hotel, motel, or other temporary residence,
he or she is considered to have established a "home away from
home." At this time, the status of the employee is the same as that of
an employee working at an establishment who leaves work and is essentially
"at home". Injuries and illnesses that occur at home are generally
not considered work related. However, just as an employer may sometimes be
required to record an injury or illness occurring to an employee working in
his or her home, the employer is required to record an injury or illness
occurring to an employee who is working in his or her hotel room (see the
discussion of working at home, below). Second,
if an employee has established a "home away from home" and is
reporting to a fixed worksite each day, the employer does not consider
injuries or illnesses work-related if they occur while the employee is
commuting between the temporary residence and the job location. These cases
are parallel to those involving employees commuting to and from work when
they are at their home location, and do not have to be recorded, just as
injuries and illnesses that occur during normal commuting are not required to
be recorded. Third,
the employer is not required to consider an injury or illness to be
work-related if it occurs while the employee is on a personal detour from the
route of business travel. This exception allows the employer to exclude
injuries and illnesses that occur when the worker has taken a side trip for
personal reasons while on a business trip, such as a vacation or sight-seeing
excursion, to visit relatives, or for some other personal purpose. The
final rule's travel-related provisions (at paragraph 1904.5(b)(6)) are
essentially identical to those proposed (63 FR 4063), with only minor
editorial changes, and are also parallel to those for determining the work-relationship
of traveling employees under the former recordkeeping system (Ex. 2, pp. 36,
37). OSHA received various comments and suggestions about how best to
determine work relationship for traveling employees. A few commenters
endorsed OSHA's proposed approach (see, e.g., Exs. 15: 199, 396, 406).
Other commenters believe, however, that employer control of, or the authority
to control, the work environment should be determinative because activities
outside the employer's control fall outside the scope of the employer's
safety and health program (see, e.g., Exs. 15: 335, 396, 409, 424).
The comments of the Dow Chemical Company (Ex. 15: 335) are typical of these
views: [t]ravel
on public carriers such as commercial airlines, trains, and taxi services or
pre-existing conditions that are aggravated during normal unencumbered body
motions, or injuries that occur off-the-job but do not impair someone until
they arrive at work are all beyond the control of the employer and the scope
of any safety and health program. The commercial plane that crashes while the
employee was flying on company business or the taxi accident while the
employee was trying to get to the airport to fly on company business are
events which, while tragic, are beyond the scope of an employer's control and
beyond the reasonable reach of that employer's safety and health program. However,
as discussed in the Legal Authority section and the introduction to the
work-relationship section of the preamble, OSHA has decided not to limit the
recording of occupational injuries and illnesses to those cases that are
preventable, fall within the employer's control, or are covered by the
employer's safety and health program. The issue is not whether the conditions
could have, or should have, been prevented or whether they were controllable,
but simply whether they are occupational, i.e., are related to work. This is
true regardless of whether the employee is injured while on travel or while
present at the employer's workplace. An employee who is injured in an automobile
accident or killed in an airline crash while traveling for the company has
clearly experienced a work-related injury that is rightfully included in the
OSHA injury and illness records and the Nation's occupational injury and
illness statistics. As the American Industrial Hygiene Association (Ex. 15:
153) remarked: The
workforce is increasingly made up of service sector jobs. Computers,
materials movement, travel, violence are all emerging and increasing sources
of occupational injury and illness. Many of these newer trends in cases may
not involve lost workdays, but are recordable and significant to the
workforce none the less. Many of the clean, non-manufacturing employers who
were traditionally exempt from recordkeeping have risk in these and other
emerging areas about which OSHA should be collecting data. Two
commenters specifically objected to the inclusion of cases involving client
entertainment (Ex. 15: 409, 424). The American Association of Automobile
Manufacturers (AAMA) remarked: AAMA
agrees with OSHA that injuries/illnesses to employees during travel status
are work-related and recordable. However, AAMA takes strong exception to the
inclusion of 'entertaining or being entertained for the purpose of
transacting, discussing, or promoting business.' We find the notion of
recording an illness for an employee, while he/she was engaged in a business
related dinner, and subsequently suffering acute onset of diarrhea leading to
hospitalization for gastroenteritis, to be inappropriate. OSHA needs to remove
this obligation from the final rule. (Ex. 15: 409) OSHA
does not agree with this comment, because the Agency believes that employees
who are engaged in management, sales, customer service and similar jobs must
often entertain clients, and that doing so is a business activity that
requires the employee to work at the direction of the employer while
conducting such tasks. If the employee is injured or becomes ill while
engaged in such work, the injury or illness is work-related and should be
recorded if it meets one or more of the other criteria (death, medical
treatment, etc.). The gastroenteritis example provided by the AAMA is one
type of injury or illness that may occur in this situation, but employees are
also injured in accidents while transporting clients to business-related
events at the direction of the employer or by other events or exposures
arising in the work environment. On
the other hand, not all injuries and illnesses sustained in the course of
business-related entertainment are reportable. To be recordable, the
entertainment activity must be one that the employee engages in at the
direction of the employer. Business-related entertainment activities that are
undertaken voluntarily by an employee in the exercise of his or her
discretion are not covered by the rule. For example, if an employee attending
a professional conference at the direction of the employer goes out for an
evening of entertainment with friends, some of whom happen to be clients or
customers, any injury or illness resulting from the entertainment activities
would not be recordable. In this case, the employee was socializing after
work, not entertaining at the direction of the employer. Similarly, the fact
that an employee joins a private club or organization, perhaps to "network"
or make business contacts, does not make any injury that occurs there
work-related. Two
commenters recommended that OSHA eliminate the exceptions for determining
work-relationship while employees are on travel and simply require all
injuries and illnesses occurring while an employee is on travel status to be
considered work-related (Exs. 15: 350, 418). For example, the AFL-CIO (Ex.
15: 418) suggested: We
would also strongly encourage the Agency to re-evaluate [proposed] Appendix A
Section C "Travel Status". The AFL-CIO believes that employees in
"travel status" (e.g., traveling on company business) should
be considered engaged in work-related activities during ALL of their time
spent on the trip. This includes all travel, job tasks, entertaining and other
activities occurring during "travel status." OSHA
believes that expanding the concept of work-related travel to include all of
the time the worker spends on a trip would be inconsistent with the tests of
work-relationship governing the recording of other injuries and illnesses and
would therefore skew the statistics and confuse employers. As the Dow
Chemical Company (Ex. 15: 335) stated: While
the employee is traveling for the benefit of the company, it cannot be said
that 100% of their time is engaged in work-related activities. Employees
engage in personal and social activities while traveling on company business
that is not for the direct benefit of the company nor a condition of
employment and which cannot be impacted by an employer's safety or health
program. Often there is "free time" while traveling and employees
engage in a myriad of activities such as shopping, sightseeing, dining out
with friends or family that may be in the area, and the like. These are
activities that do not benefit the company and are outside the company's
control or reasonable reach of its safety and health programs. These are
activities which, if the employee were engaged in them at their normal work
location, would not be recordable; but just by the fact that they happen to
be traveling for business purposes raises these otherwise non-recordable
cases into those subject to the recordkeeping rule. OSHA
agrees with Dow that there are situations where an injury or illness case
involving an employee who is on travel status should be excluded from the
records. There is no value in recording injuries and illnesses that would not
be recorded under non-travel circumstances. For example, there is no value to
including in the statistics an injury sustained by an employee who slips and
falls in a motel room shower or who is injured in an automobile accident
while on personal business, or becomes the victim of random street violence
while doing personal shopping on a business trip. OSHA is therefore
continuing the Agency's practice of excluding certain cases while employees
are in travel status and applying the exceptions to the geographic
presumption in the final rule to those occurring while the worker is
traveling. The
Department of Energy (Ex. 15: 163) expressed a concern about overseas travel,
remarking "For employees who travel in the U.S., the standard makes
sense. For employees who travel out of the country, additional burdens to
them are generally incurred. Travelers to tropical locations or other areas
with different fauna and microbes may incur diseases that are not indigenous
to the U.S." In response, OSHA notes that the recordkeeping regulation
does not apply to travel outside the United States because the OSH Act
applies only to the confines of the United States (29 U.S.C. § 652(4)) and
not to foreign operations. Therefore, the OSHA recordkeeping regulation does
not apply to non-U.S. operations, and injuries or illnesses that may occur to
a worker traveling outside the United States need not be recorded on the OSHA
300 Log. Working
at Home The
final rule also includes provisions at § 1904.5(b)(7) for determining the
work-relatedness of injuries and illnesses that may arise when employees are
working at home. When an employee is working on company business in his or
her home and reports an injury or illness to his or her employer, and the
employee's work activities caused or contributed to the injury or illness, or
significantly aggravated a pre-existing injury, the case is considered
work-related and must be further evaluated to determine whether it meets the
recording criteria. If the injury or illness is related to non-work
activities or to the general home environment, the case is not considered
work-related. The
final rule includes examples to illustrate how employers are required to
record injuries and illnesses occurring at home. If an employee drops a box
of work documents and injures his or her foot, the case would be considered
work-related. If an employee's fingernail was punctured and became infected
by a needle from a sewing machine used to perform garment work at home, the
injury would be considered work-related . If an employee was injured because
he or she tripped on the family dog while rushing to answer a work phone
call, the case would not be considered work-related. If an employee working
at home is electrocuted because of faulty home wiring, the injury would not
be considered work-related. This
provision is consistent with longstanding Agency practice under the former
recordkeeping system. It was also included in the proposed rule (63 FR 4063),
which read "An injury or illness will be considered work-related if it
occurs while the employee is performing work for pay or compensation in the
home, if the injury or illness is directly related to the performance of work
rather than the general home environment or setting." A
number of commenters supported OSHA's proposed approach to recording the
injuries and illnesses of employees who work at home (see, e.g., Exs.
15: 31, 146, 176, 231, 273, 301, 336, 348, 375, 406, 409, 413, 427, 429). The
comments of the Council of Community Blood Centers (CCBC) (Ex. 15: 336) are
typical of the views of these participants: CCBC
believes this is a good rule and should stay on the books. Accident or
illness should be work-related if it occurs at home and is related to
performance of the work, not the general home environment or setting. Workers
often are off the premises in a variety of situations, such as travel,
providing repair services, or consultation. Just as injuries in these situations
are reportable, so should those during work at home, if authorized by the
employer. A
large number of commenters objected to the proposed approach, however (see, e.g.,
Exs. 65, 66, 78, 89, 105, 111, 123, 194, 200, 225, 239, 260, 262, 265, 277,
288, 330, 335, 341, 345, 360, 387, 393, 401, 406, 409, 430, 434, 440). Most
of these commenters objected because of the employer's perceived inability to
control working conditions in the home environment (see, e.g., Exs.
15: 89, 163, 194, 239, 262, 288, 330, 345, 360). For example, the Fort Howard
Corporation commented: Fort
Howard strongly opposes OSHA's proposal to consider any injuries and
illnesses as "work-related" if it occurs while the employee is
performing work for pay or compensation in the home if the injury or illness
is directly related to the performance of the work. Employers have absolutely
no control over employees' homes. They cannot oversee employees who are doing
the work nor can they effectively monitor the manner the work is conducted or
the environment in which it is conducted. OSHA's proposal could place
employers in the role of insuring the home as a safe work environment. (Ex.
15: 194) Again,
as discussed above, OSHA is concerned that all non-minor work-related cases
be recorded on the Log and become part of the national statistics, both
because these injuries and illnesses provide information about the safety and
health of the work environment to employers, employees, and safety and health
professionals and because collecting them may allow previously obscured
safety and health issues to be identified. Injuries and illnesses occurring
while the employee is working for pay or compensation at home should be
treated like injuries and illnesses sustained by employees while traveling on
business. The relevant question is whether or not the injury or illness is
work-related, not whether there is some element of employer control. The mere
recording of these injuries and illnesses as work-related cases does not
place the employer in the role of insuring the safety of the home
environment. The
law firm of Leonard, Ralston, Stanton & Remington, Chartered (Ex. 15:
430) raised questions about OSHA's role when employees perform office work
activities in a home office: The
increasing incidence of home work (or "telecommuting") raises some
interesting issues. For example, does OSHA assume that its right of
inspection extends to an employee's private home? If so, has the Agency
examined the constitutionality of this position? What control does the Agency
assume an employer has over working conditions in a private home? Does the
Agency expect the employer to inspect its employees' homes to identify unsafe
conditions? Must the employer require an employee to correct unsafe
conditions in the home (e.g., frayed carpet which presents a tripping
hazard; overloaded electrical wiring or use of extension cords; etc.) as a
condition of employment? If so, who must pay the cost of necessary home
improvements? OSHA
has recently issued a compliance directive (CPL 2-0.125) containing the
Agency's response to many of the questions raised by this commenter. That
document clarifies that OSHA will not conduct inspections of home offices and
does not hold employers liable for employees' home offices. The compliance
directive also notes that employers required by the recordkeeping rule to
keep records "will continue to be responsible for keeping such records,
regardless of whether the injuries occur in the factory, in a home office, or
elsewhere, as long as they are work-related, and meet the recordability
criteria of 29 CFR Part 1904." With
more employees working at home under various telecommuting and flexible
workplace arrangements, OSHA believes that it is important to record injuries
and illnesses attributable to work tasks performed at home. If these cases
are not recorded, the Nation's injury and illness statistics could be skewed.
For example, placing such an exclusion in the final rule would make it
difficult to determine if a decline in the overall number or rate of occupational
injuries and illnesses is attributable to a trend toward working at home or
to a change in the Nation's actual injury and illness experience. Further,
excluding these work-related injuries and illnesses from the recordkeeping
system could potentially obscure previously unidentified causal connections
between events or exposures in the work environment and these incidents. OSHA
is unwilling to adopt an exception that would have these potential effects.
As the BF Goodrich Company (Ex. 15: 146) said, "[s]pecific criteria to
address employee work-at-home situations is appropriate to assure consistent
reporting in our changing work environment." Section 1904.6 Determination of New Cases Employers
may occasionally have difficulty in determining whether new signs or symptoms
are due to a new event or exposure in the workplace or whether they are the
continuation of an existing work-related injury or illness. Most occupational
injury and illness cases are fairly discrete events, i.e., events in which an
injury or acute illness occurs, is treated, and then resolves completely. For
example, a worker may suffer a cut, bruise, or rash from a clearly recognized
event in the workplace, receive treatment, and recover fully within a few
weeks. At some future time, the worker may suffer another cut, bruise or rash
from another workplace event. In such cases, it is clear that the two
injuries or illnesses are unrelated events, and that each represents an
injury or illness that must be separately evaluated for its recordability. However,
it is sometimes difficult to determine whether signs or symptoms are due to a
new event or exposure, or are a continuance of an injury or illness that has
already been recorded. This is an important distinction, because a new injury
or illness requires the employer to make a new entry on the OSHA 300 Log,
while a continuation of an old recorded case requires, at most, an updating
of the original entry. Section 1904.6 of the final rule being published today
explains what employers must do to determine whether or not an injury or
illness is a new case for recordkeeping purposes. The
basic requirement at § 1904.6(a) states that the employer must consider an
injury or illness a new case to be evaluated for recordability if (1) the
employee has not previously experienced a recorded injury or illness of the
same type that affects the same part of the body, or (2) the employee
previously experienced a recorded injury or illness of the same type that
affected the same part of the body but had recovered completely (all signs
and symptoms of the previous injury or illness had disappeared) and an event
or exposure in the work environment caused the injury or illness, or its
signs or symptoms, to reappear. The
implementation question at § 1904.6(b)(1) addresses chronic work-related
cases that have already been recorded once and distinguishes between those
conditions that will progress even in the absence of workplace exposure and
those that are triggered by events in the workplace. There are some
conditions that will progress even in the absence of further exposure, such
as some occupational cancers, advanced asbestosis, tuberculosis disease,
advanced byssinosis, advanced silicosis, etc. These conditions are chronic;
once the disease is contracted it may never be cured or completely resolved,
and therefore the case is never "closed" under the OSHA
recordkeeping system, even though the signs and symptoms of the condition may
alternate between remission and active disease. However,
there are other chronic work-related illness conditions, such as occupational
asthma, reactive airways dysfunction syndrome (RADs), and sensitization
(contact) dermatitis, that recur if the ill individual is exposed to the
agent (or agents, in the case of cross-reactivities or RADs) that triggers
the illness again. It is typical, but not always the case, for individuals
with these conditions to be symptom-free if exposure to the sensitizing or
precipitating agent does not occur. The
final rule provides, at paragraph (b)(1), that the employer is not required
to record as a new case a previously recorded case of chronic work-related
illness where the signs or symptoms have recurred or continued in the absence
of exposure in the workplace. This paragraph recognizes that there are
occupational illnesses that may be diagnosed at some stage of the disease and
may then progress without regard to workplace events or exposures. Such
diseases, in other words, will progress without further workplace exposure to
the toxic substance(s) that caused the disease. Examples of such chronic
work-related diseases are silicosis, tuberculosis, and asbestosis. With these
conditions, the ill worker will show signs (such as a positive TB skin test,
a positive chest roentgenogram, etc.) at every medical examination, and may
experience symptomatic bouts as the disease progresses. Paragraph
1904.6(b)(2) recognizes that many chronic occupational illnesses, however,
such as occupational asthma, RADs, and contact dermatitis, are triggered by
exposures in the workplace. The difference between these conditions and those
addressed in paragraph 1904.6(b)(1) is that in these cases exposure triggers
the recurrence of symptoms and signs, while in the chronic cases covered in
the previous paragraph, the symptoms and signs recur even in the absence of
exposure in the workplace. This distinction is consistent with the position
taken by OSHA interpretations issued under the former recordkeeping rule (see
the Guidelines discussion below). The Agency has included provisions
related to new cases/continuations of old cases in the final rule to clarify
its position and ensure consistent reporting. Paragraph
1904.6(b)(3) addresses how to record a case for which the employer requests a
physician or other licensed health care professional (HCP) to make a new
case/continuation of an old case determination. Paragraph (b)(3) makes clear
that employers are to follow the guidance provided by the HCP for OSHA
recordkeeping purposes. In cases where two or more HCPs make conflicting or
differing recommendations, the employer is required to base his or her
decision about recordation based on the most authoritative (best documented,
best reasoned, or most persuasive) evidence or recommendation. The
final rule's provisions on the recording of new cases are nearly identical to
interpretations of new case recordability under the former rule. OSHA has
historically recognized that it is generally an easier matter to
differentiate between old and new cases that involve injuries than those
involving illnesses: the Guidelines stated that "the aggravation
of a previous injury almost always results from some new incident involving
the employee * * * [w]hen work-related, these new incidents should be
recorded as new cases on the OSHA forms, assuming they meet the criteria for
recordability * * *" (Ex. 2, p. 31). However, the Guidelines also
stated that "certain illnesses, such as silicosis, may have prolonged
effects which recur over time. The recurrence of these symptoms should not be
recorded as a new case on the OSHA forms. * * * Some occupational illnesses,
such as certain dermatitis or respiratory conditions, may recur as the result
of new exposures to sensitizing agents, and should be recorded as new
cases." OSHA
developed and included specific guidance for evaluating when cumulative
trauma disorders (CTDs) (ergonomic injuries and illnesses, now known as
musculoskeletal disorders, or MSDs) should be recorded as new cases in the Ergonomics
Program Management Guidelines For Meatpacking Plants (Ex. 11, p. 15)
which were published in 1990. These Guidelines provided: If
and when an employee who has experienced a recordable CTD becomes symptom
free (including both subjective symptoms and physical findings), any
recurrence of symptoms establishes a new case. Furthermore, if the worker
fails to return for medical care within 30 days, the case is presumed to be
resolved. Any visit to a health care provider for similar complaints after
the 30-day interval "implies reinjury or reexposure to a workplace
hazard and would represent a new case." Thus,
the former rule had different "new case" criteria for
musculoskeletal disorders than for other injuries and illnesses. (For the
final rule's recording criteria for musculoskeletal disorders, see Section
1904.12.) OSHA's
recordkeeping NPRM proposed a single approach to the identification of new
cases for all injuries and illnesses, including musculoskeletal disorders.
The proposal would have required the recurrence of a pre-existing injury or
illness to be considered a new case to evaluate for recordability if (1) it
resulted from a new work event or exposure, or (2) 45 days had elapsed since
medical treatment, work restriction, or days away from work had ceased, and
the last sign or symptom had been experienced. The proposed approach would,
in effect, have extended the recurrence criteria for musculoskeletal
disorders to all injury and illness cases, but would have increased the
no-medical-intervention interval from 30 to 45 days. A recurrence of a
previous work-related injury or illness would have been presumed, under the
proposed approach, to be a new case if (1) it resulted from a new work
accident or exposure, or (2) 45 days had elapsed since medical treatment had
been administered or restricted work activity or days away had occurred and
since the last sign or symptom had been experienced. This proposed
presumption would have been rebuttable if there was medical evidence
indicating that the prior case had not been resolved. In the proposal, OSHA
also asked for input on the following questions related to new case
recording: OSHA
solicits comment on the appropriateness of the 45-day interval. Is 45 days
too short or long of a period? If so, should the period be 30 days? 60 days?
90 days? or some other time period? Should different conditions (e.g.
back cases, asthma cases etc.) have different time intervals for evaluating
new cases? OSHA
is also seeking input for an improved way to evaluate new cases. Should a new
category of cases be created to capture information on recurring injuries and
illnesses? One option is to add an additional "check box" column to
the proposed OSHA Form 300 for identifying those cases that are recurrences
of previously recorded injuries and illnesses. This would allow employers,
employees and OSHA inspectors to differentiate between one time cases and
those that are recurrent, chronic conditions. This approach may help to
remove some of the stigma of recording these types of disorders and lead to
more complete records. OSHA solicits input on this approach. Will a recurrence
column reduce the stigma of recording these types of cases? Should
recurrences be included in the annual summaries? Should a time limit be used
to limit the use of a recurrence column? In
response to the views and evidence presented by commenters to the record,
OSHA has decided not to adopt the proposed approach to the recording of
new/recurring cases in the final rule. Commenters expressed a wide variety of
views about the recording of recurring injury and illness cases. Some
commenters favored the proposed approach as drafted. Others, however,
objected to it on many grounds: (1) the time limit should be longer or
shorter than the 45 days proposed; (2) the proposed approach would result in
under- or overreporting; (3) it would conflict with workers' compensation
requirements; (4) it was too restrictive (5) it would encourage excessive use
of the health care system; and (6) it should be replaced by a physician or
other licensed health care professional's opinion. A
number of commenters supported OSHA's proposed approach (see, e.g.,
Exs. 15: 27, 65, 70, 151, 152, 154, 179, 180, 181, 185, 186, 188, 214, 331,
332, 336, 359, 387, 396, 424, 428). Representative of these comments was one
from The Fertilizer Institute (TFI): TFI
agrees with OSHA's proposed 45 day criterion for the recording of new cases.
Concerning OSHA's solicitation of comments on whether different conditions
should have different evaluation periods, TFI encourages OSHA to adopt a
single time period for all conditions. Different evaluation periods for
different conditions will lead to complexity and confusion without any
resulting benefit to recordkeeping (Ex. 15: 154). Other
commenters supported the concept of using a time limit for determining new
cases, but thought the number of days should be higher (see, e.g.,
Exs. 15: 45, 49, 61, 82, 89, 131, 147, 184, 235, 331, 389). Some commenters
generally opposed the time limit concept but made recommendations for longer
time periods if OSHA decided in the final rule to adopt a time limit (see, e.g.,
Exs. 15: 38, 79, 89, 111, 136, 137, 141, 194, 224, 246, 266, 278, 288, 299,
313, 335, 352, 353, 430). The longer intervals suggested by commenters
included 60 days (see, e.g., Exs. 15: 82, 389); 90 days (see, e.g.,
Exs. 15: 38, 49, 79, 147, 184, 246, 299, 313, 331, 335, 352, 353, 430); 120
days (Ex. 15: 194); 180 days (see, e.g., Exs. 15: 61, 111, 136, 137,
141, 224, 266, 278, 288); one year (Ex. 15: 131); and five years (Ex. 15:
89). A
large number of commenters opposed the proposed approach for identifying new
cases that would then be tested for their recordability (see, e.g.,
Exs. 15: 33, 38, 39, 41, 78, 79, 89, 95, 102, 107, 111, 119, 127, 133, 136,
137, 141, 153, 171, 176, 194, 199, 203, 224, 225, 231, 246, 266, 273, 278,
281, 288, 289, 299, 301, 305, 307, 308, 313, 335, 337, 341, 346, 348, 352,
353, 375, 395, 405, 410, 413, 424, 425, 428, 430, 440). Some commenters
argued that the proposed 45-day interval was arbitrary (see, e.g.,
Exs. 15: 119, 203, 289, 313, 352, 353, 395), that it conflicted with workers'
compensation new case determinations (see, e.g., Exs. 15: 38, 119,
136, 137, 141, 224, 266, 278), that the approach would not work in the case
of chronic injury (see, e.g., Exs. 33; 15: 176, 199, 231, 273, 299,
301, 305, 308, 337, 346, 348, 375), or that the proposed 45-day rule would
result in over-reporting of occupational injuries and illnesses (see, e.g.,
Exs. 15: 119, 127, 136, 137, 141, 171, 199, 224, 266, 278, 305, 337, 424,
425). The comments of the NYNEX Corporation (Ex. 15: 199) illustrate the
general concerns of these commenters: We
do not agree, however, with the second criterion of a symptom free 45 day
period following medical treatment, restriction, or days away from work. This
criterion fails to take into account the persistent nature of many chronic or
recurring conditions, i.e., back strains, musculoskeletal disorders, where
the symptoms may disappear for a period of time, but the underlying
conditions are still present. If adopted, this criterion could cause injury
and illness data to be artificially inflated with the onset of
"new" cases, which in fact are recurrences of existing conditions.
This in turn could lead to false epidemics and a diversion of resources from
more legitimate workplace concerns. On
the other hand, William K. Principe of Constangy, Brooks & Smith, LLC
(Ex. 15: 428) was concerned that the proposed method would result in fewer
recordable cases: Since
many employees will report that they continued to experience symptoms or that
they continue to have good days and bad days, the new rule will result in
many fewer recordable CTD [cumulative trauma disorder] cases. In fact, at
some hand-intensive manual operations, the number of CTD cases should be
drastically reduced under the proposal that 45 days must elapse since the
last symptom. There is something fundamentally wrong with a recordkeeping
system that one year shows a high incidence of CTDs and the next shows a
dramatic decline, when the underlying conditions remain virtually identical. United
Parcel Service (Ex. 15: 424) stated that there should be no time limit to
determining whether or not a case is a recurrence: In
UPS's experience, however, it is a simple process to determine, by medical
referral or by examining prior medical history, whether a condition is a recurrence.
This has long been the practice, and indeed the [proposal] contemplates it
will remain the practice through the first 44 days. It does not become any
more complex on the 45th, 50th, or 100th day; and if in an individual
employer's judgment it does, then the employer may of course report the
condition as a new injury. Three
commenters disapproved of OSHA's approach because it would have been
applicable to all recurrences and they believe that each case must be
evaluated on its own merits (Exs. 15: 78, 184, 203). The International Dairy
Foods Association (IDFA) described this concern succinctly: "Each injury
has its own resolution based on the injury, illness, degree, and numerous
other factors that are characteristic of the individual. As such, it is
impossible for OSHA or anyone else to set a valid number of days even if the
resolution period is set on the basis of the type of illness/injury"
(Ex. 15: 203). In
addition, the proposed 45-day approach was interpreted differently by
different commenters. For example, David E. Jones of the law firm Ogletree,
Deakins, Nash, Smoak & Stewart (ODNSS) suggested: The
words "either" and "or" * * * should be deleted because
an aggravation of the previously recorded injury or illness brought about
within the 45-day period would require the entry of a new case at that time,
thus negating the 45-day rule, leading to the adverse result that the 45-day
rule otherwise would rectify. Accordingly, ODNSS recommends * * * "A
recurrence of a previous work-related injury or illness is a new case when it
(1) results from a new work event or exposure and (2) 45 days have
elapsed since medical treatment, restricted work activity, or days away from
work (as applicable) were discontinued and the employee has been symptom-free
(including both subjective symptoms and physical findings) (emphasis added)
(Ex. 15: 406). In
the final rule, OSHA has decided against the proposed approach of determining
case resolution based on a certain number of days during which the injured or
ill employee did not lose time, receive treatment, have signs or symptoms, or
be restricted to light duty. OSHA agrees with those commenters who argued
that the proposed approach was too prescriptive and did not allow for the
variations that naturally exist from one injury and illness case to the next.
Further, the record contains no convincing evidence to support a set number
of days as appropriate. OSHA thus agrees with those commenters who pointed
out that adoption of a fixed time interval would result in the overrecording
of some injury and illness cases and the underrecording of others, and thus
would impair the quality of the records. Further,
OSHA did not intend to create an "injury free" time zone during
which an injury or illness would not be considered a new case, regardless of
cause, as ODNSS suggested. Instead, OSHA proposed that a case be considered a
new case if either condition applied: the case resulted from a new
event or exposure or 45 days had elapsed without signs, symptoms, or medical
treatment, restricted work, or days away from work. There are clearly cases
where an event or exposure in the workplace would be cause for recording a
new case. A new injury may manifest the same signs and symptoms as the
previous injury but still be a new injury and not a continuation of the old
case if, for example, an employee sustains a fall and fractures his or her
wrist, and four months later falls again and fractures the wrist in the same
place. This occurrence is not a continuation of the fracture but rather a new
injury whose recordability must be evaluated. The final rule's approach to
recurrence/new case determinations avoids this and other recording problems
because it includes no day count limit and relies on one of the basic
principles of the recordkeeping system, i.e., that injuries or illnesses
arising from events or exposures in the workplace must be evaluated for
recordability. In
response to those commenters who raised issues about inconsistency between
the OSHA system and workers' compensation, OSHA notes that there is no reason
for the two systems, which serve different purposes (recording injuries and
illnesses for national statistical purposes and indemnifying workers for
job-related injuries and illnesses) to use the same definitions. Accordingly,
the final rule does not rely on workers' compensation determinations to
identify injuries or illness cases that are to be considered new cases for
recordkeeping purposes. Another
group of commenters argued that the 45-day recording requirement would lead
employers to spend money on unnecessary and costly health care (see, e.g.,
Exs. 15: 136, 137, 141, 224, 266, 278, 305, 346, 348, 375). The views of the
American Petroleum Institute (API) are representative: "OSHA's proposal
would also add substantially to employers' costs since it could require
employees to make frequent trips to a health care professional, even if
symptom free, just to avoid being recorded repeatedly on the OSHA log as new
cases" (Ex. 15: 375). Union Carbide Corporation (Ex. 15: 396) also remarked
on the proposed approach's potential incentive for medical follow-up, but
viewed such an incentive as a positive phenomenon, stating "One benefit
[of the proposed approach] is that it encourages medical follow-up for the
employee." Although the proposed approach would not have
"required" an employer to send a worker to a physician or other
licensed health care professional, and OSHA is not persuaded that employers
would choose to spend money in this way merely to avoid recording an occasional
case as a new case, elimination of any set day-count interval from the final
rule will also have made the concerns of these commenters moot. OSHA
also received a number of suggestions about the role of physicians and other
licensed health care professionals (HCP) in new case determinations. A number
of commenters recommended that the decision to record should be based solely
on the opinions of a physician or other licensed health care professional
(see, e.g., Exs. 33: 15: 39, 95, 107, 119, 127, 133, 225, 289, 332,
335, 341, 387, 424, 440). The National Grain and Feed Association, the
National Oilseed Processors Association, and the Grain Elevator and
Processing Society (Ex. 15: 119) commented as a group and recommended that
"[r]elying on a physician's opinion rather than an arbitrary timeframe
would simplify recordkeeping and help ensure that the records are consistent
with existing and accepted workers' compensation plans." Other
commenters recommended that, if OSHA adopted a day count time limit, the rule
should specifically allow a physician's opinion to be used to refute a new
case determination (see, e.g., Exs. 15: 65, 181, 184, 203). Several
others simply asked OSHA to provide more guidance on what type of medical
evidence could be used in new case determinations (see, e.g., Exs. 15:
176, 231, 273, 301, 430). The National Wholesale Druggists' Association
(NWDA) suggested that "OSHA should also include a provision that the
employee obtain written approval from a doctor that the employee's condition
has been resolved before going back to work. Determining the end of treatment
should be left in the hands of a medical professional and OSHA should require
some type of documentation to that effect" (Ex. 15: 185). OSHA
has not included any provisions in the final rule that require an employer to
rely on a physician or other licensed health care professional or that tell a
physician or other licensed health care professional how to treat an injured
or ill worker, or when to begin or end such treatment. In the final rule OSHA
does require the employer to follow any determination a physician or other
licensed health care professional has made about the status of a new case.
That is, if such a professional has determined that a case is a new case, the
employer must record it as such. If the professional determines that the case
is a recurrence, rather than a new case, the employer is not to record it a
second time. In addition, the rule does not require the employee, or the
employer, to obtain permission from the physician or other licensed health
care professional before the employee can return to work. OSHA believes that
the employer is capable of, and often in the best position to, make
return-to-work decisions. Southern
California Edison (Ex. 15: 111) expressed concern that imposing a day limit
would not take differences between types of injuries and illnesses into
account, stating "A recurrence of a previous work-related injury or
illness should only be considered a new case when the injury or illness has
completely healed. Severe muscle and nerve damage can take many weeks or
months to properly heal." The final rule takes such differences into
account, as follows. If the previous injury or illness has not healed (signs
and symptoms have not resolved), then the case cannot be considered resolved.
The employer may make this determination or may rely on the recommendation of
a physician or other licensed health care professional when doing so.
Clearly, if the injured or ill employee is still exhibiting signs or symptoms
of the previous injury or illness, the malady has not healed, and a new case
does not have to be recorded. Similarly, if work activities aggravate a
previously recorded case, there is no need to consider recording it again
(although there may be a need to update the case information if the
aggravation causes a more severe outcome than the original case, such as days
away from work). The
Quaker Oats Company (Ex. 15: 289) suggested that employers should be
permitted by the rule to decide whether a given case was a new case or not,
without requirements in the rule: The
45 day interval on determining if a case is a new one or should be counted
under a previous injury should be left to the discretion of the employer.
They have the most intimate knowledge of the work environment, medical
treatment of the affected employee and the status of their work-related
injury or illness. I will agree that it is a difficult matter to decide and
to assure consistency throughout industry * * * I believe that any number of
days would simply be an arbitrary attempt at quantifying something that is
best left to the medical judgment of a healthcare professional. Under
the OSHA recordkeeping system, the employer is always the responsible party
when it comes to making the determination of the recordability of a given
case. However, if OSHA did not establish consistent new case determination
criteria, a substantial amount of variability would be introduced into the
system, which would undermine the Agency's goals of improving the accuracy
and consistency of the Nation's occupational injury and illness data.
Accordingly, OSHA has not adopted this suggested approach in the final rule. A
number of commenters argued that the occurrence of a new event, exposure, or
incident should be required to trigger the recording of a new case (see, e.g.,
Exs. 33, 15: 102, 171, 176, 231, 273, 301, 307, 308, 405, 410, 413, 425).
Representative of these comments was one from the Voluntary Protection
Programs Participants' Association (VPPPA), which recommended that OSHA
"adopt a definition for new case that requires the occurrence of a new
work-related event to trigger a new case. In the absence of this, the case
would be considered recurring" (Ex. 15: 425). OSHA agrees with the VPPPA
that if no further event or exposure occurs in the workplace to aggravate a
previous injury or illness, a new case need not be recorded. However, if
events or exposures at work cause the same symptoms or signs to recur, the
final rule requires employers to evaluate the injury or illness to see if it
is a new case and is thus recordable. The
OSHA statistical system is designed to measure the incidence, rather than
prevalence, of occupational injury and illness. Incidence measures capture
the number of new occupational injuries and illnesses occurring in a given
year, while prevalence measures capture the number of such cases existing in
a given year (prevalence measures thus capture cases without regard to the
year in which they onset). Prevalence measures would therefore capture all
injuries and illnesses that occurred in a given year as well as those
unresolved injuries and illnesses that persist from previous years. The
difference is illustrated by the following cases: (1) A worker experiences a
cut that requires sutures and heals completely before the year ends; this
injury would be captured both by an incidence or prevalence measure for that
particular year. (2) Another worker retired last year but continues to
receive medical treatment for a work-related respiratory illness that was first
recognized two years ago. This case would be captured in the year of onset
and each year thereafter until it resolves if a prevalence measure is used,
but would be counted only once (in the year of onset) if an incidence measure
is used. Because
the OSHA system is intended to measure the incidence of occupational injury
and illness, each individual injury or illness should be recorded only once
in the system. However, an employee can experience the same type of injury or
illness more than once. For example, if a worker cuts a finger on a machine
in March, and is then unfortunate enough to cut the same finger again in
October, this worker has clearly experienced two separate occupational
injuries, each of which must be evaluated for its recordability. In other
cases, this evaluation is not as simple. For example, a worker who performs
forceful manual handling injures his or her back in 1998, resulting in days
away from work, and the case is entered into the records. In 1999 this worker
has another episode of severe work-related back pain and must once again take
time off for treatment and recuperation. The question is whether or not the
new symptoms, back pain, are continuing symptoms of the old injury, or
whether they represent a new injury that should be evaluated for its
recordability as a new case. The answer in this case lies in an analysis of
whether or not the injured or ill worker has recovered fully between
episodes, and whether or not the back pain is the result of a second event or
exposure in the workplace, e.g., continued manual handling. If the
worker has not fully recovered and no new event or exposure has occurred in
the workplace, the case is considered a continuation of the previous injury
or illness and is not recordable. One
reason for the confusion that is apparent in some of the comments on the
proposal's approach to the recording of recurrences may be the custom that
developed over the years of referring to recordable recurrences of
work-related injuries and illnesses as "new cases." See for
example, 61 FR 4037/1 ("employers may be dealing with a re-injury or
recurrence of a previous case and must decide whether the recurrence is a
"new case" or a continuation of the original case.") The term
"new case" tends to suggest to some that the case is totally
original, when in fact new cases for OSHA recordkeeping purposes include
three categories of cases; (1) totally new cases where the employee has never
suffered similar signs or symptoms while in the employ of that employer, (2)
cases where the employee has a preexisting condition that is significantly
aggravated by activities at work and the significant aggravation reaches the
level requiring recordation, and (3) previously recorded conditions that have
healed (all symptoms and signs have resolved) and then have subsequently been
triggered by events or exposures at work. Under
the former rule and the final rule, both new injuries and recurrences must be
evaluated for their work-relatedness and then for whether they meet one or
more of the recording criteria; when these criteria are met, the case must be
recorded. If the case is a continuation of a previously recorded case but
does not meet the "new case" criteria, the employer may have to
update the OSHA 300 Log entry if the original case continues to progress,
i.e., if the status of the case worsens. For example, consider a case where
an employee has injured his or her back lifting a heavy object, the injury
resulted in medical treatment, and the case was recorded as a case without
restricted work or days away. If the injury does not heal and the employer
subsequently decides to assign the worker to restricted work activity, the
employer is required by the final rule to change the case classification and
to track the number of days of restricted work. If the case is a previous
work-related injury that did not meet the recording criteria and thus was not
recorded, future developments in the case may require it to be recorded. For
example, an employee may suffer an ankle sprain tripping on a step. The
employee is sent to a health care professional, who does not recommend
medical treatment or restrictions, so the case is not recorded at that time.
If the injury does not heal, however, and a subsequent visit to a physician
results in medical treatment, the case must then be recorded. OSHA
and employers and employees need data on recurring cases because recurrence
is an important indicator of severity over the long term. Just as the number
of days away is a useful indicator of health and safety risk at a particular
establishment, so is the total number of injury and illness events and of
exposures resulting in health consequences that occur in an establishment or
industry. Further, any realistic assessment of occupational safety and health
conditions should reflect the fact that some but not all injuries and
illnesses have long-term consequences. In other words, a safety and health
analysis should give less weight to an injury or illness that has a clear and
relatively quick recovery without impairment of any kind and an injury or
illness that is chronic in nature or one that involves recurring episodes
that are retriggered by workplace events or exposures. Ignoring
the fact that an occupational injury or illness is a recurrence occasioned by
an event or exposure in the workplace would result in an underestimate of the
true extent of occupational injury and illness and deprive employers,
employees, and safety and health professionals of essential information of
use in illness prevention. The other extreme, requiring employers to record
on-going signs or symptoms repeatedly, even in the absence of an event or
exposure in the workplace, would result in overstating the extent of illness.
In terms of the recordkeeping system, deciding how most appropriately to handle
new cases requires a balanced approach that minimizes both overrecording and
underrecording. OSHA has dealt with this problem in the final rule by
carefully defining the circumstances under which a chronic and previously
recorded injury or illness must be considered closed and defining the
circumstances under which a recurrence is to be considered a new case and
then evaluated to determine whether it meets one or more of the recordability
criteria. OSHA's
proposal to apply a single criterion to the determination of the
recordability of all recurrences of previously recorded injuries and
illnesses received support from several commenters (see, e.g., Exs.
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria for
determining whether any injury or illness, including a musculoskeletal
disorder, is to be treated as a new case or as the continuation of an
"old" injury or illness. First, if the employee has never had a
recorded injury or illness of the same type and affecting the same part of the
body, the case is automatically considered a new case and must be evaluated
for recordability. This provision will handle the vast majority of injury and
illness cases, which are new cases rather than recurrences or case
continuations. Second, if the employee has previously had a recorded injury
or illness of the same type and affecting the same body part, but the
employee has completely recovered from the previous injury or illness, and a
new workplace event or exposure causes the injury or illness (or its signs or
symptoms) to reappear, the case is a recurrence that the employer must
evaluate for recordability. The
implementation section of § 1904.6 describes these requirements and includes
explanations applying to two special circumstances. In the first case,
paragraph 1904.6(b)(1) the employee has experienced a chronic injury or
illness of a type that will progress regardless of further workplace
exposure. Cases to which this provision applies are serious, chronic illness
conditions such as occupational cancer, asbestosis, silicosis, chronic
beryllium disease, etc. These occupational conditions generally continue to
progress even though the worker is removed from further exposure. These
conditions may change over time and be associated with recurrences of
symptoms, or remissions, but the signs (e.g., positive chest
roentgenogram, positive blood test) generally continue to be present
throughout the course of the disease. The
second kind of case, addressed in paragraph 1904.6(b)(b)(2), requires
employers to record chronic illness cases that recur as a result of exposures
in the workplace. These conditions might include episodes of occupational
asthma, reactive airways dysfunction syndrome (RADS), or contact allergic
dermatitis, for example. Paragraph
1904.6(b)(3) recognizes the role of physicians and other licensed health care
professionals that the employer may choose to rely on when tracking a
"new case" or making a continuation of an old case determination.
If a physician or other licensed health care professional determines that an
injury or illness has been resolved, the employer must consider the case to
be resolved and record as a new case any episode that causes the signs and
symptoms to recur as a result of exposure in the workplace. On the other hand,
if the HCP consulted by the employer determines that the case is a chronic
illness of the type addressed by paragraph 1904.6(b)(1), the employer would
not record the case again. In either case, the employer would evaluate it for
work-relatedness and then determine whether the original entry requires
updating or the case meets the recording criteria. Paragraph (b)(3) also
recognizes that the employer may ask for input from more than one HCP, or the
employer and employee may each do so, and in such cases, the rule requires
the employer to rely on the one judged by the employer to be most
authoritative. Adding
a Recurrence Column to the OSHA 300 Log In
the proposal, OSHA asked commenters whether the Log should include a column
with a check-box that could be marked if a case was a recurrence of a
pre-existing condition (61 FR 4037). Some commenters supported the proposed
approach (see, e.g., Exs. 15: 27, 39, 61, 65, 89, 154, 186, 214, 235,
277, 299, 305, 332, 336). For example, the National Association of Manufacturers
(NAM) suggested that, in lieu of adopting a 45-day time limit, OSHA should
add a column to the Log: "If the Agency believes there is a need to
track the number of recurring cases, we believe the better approach would be
to add a column to the log which would permit the original entry for each
injury or illness to be updated in the event of a recurrence" (Ex. 15:
305). The American Association of Homes and Services for the Aging (AAHSA)
agreed: [t]here
should be a column on the injury and illness log for employers to check for
reoccurring injuries. This addition would help the employer to identify
possible patterns or problems associated with a specific job and find
solutions. Recommendation: Add a column to the injury and illness log
allowing the employer to check when an employee is having a repetitive injury
or illness (Ex. 15: 214). Other
commenters did not support the proposal's approach to tracking recurrences
(see, e.g., Exs. 15: 70, 78, 136, 137, 141, 151, 152, 179, 180, 194,
224, 266, 278). The comments of Kathy Lehrman, RN, Occupational Health Nurse
(Ex. 15: 136) are representative of these comments: The
addition of a column to record recurrent conditions would not reduce the
stigma and would lead to increased health care provider visits to avoid
having an ongoing case labeled as a new case. * * * I do not see the value of
including a new category of case designation. This runs counter to the
simplification objective. After
a review of the comments on this issue, OSHA has decided not to include such
a check-box on the Log. The final rule adds several columns to the OSHA 300
form to collect data on the number of restricted workdays and on various
types of occupational injuries and illnesses. The addition of these columns,
and the decision to provide more space on the Log to add information on the
case, has used up the available space on the form. Requiring employers to
record recurrences would also be burdensome and make the rule more complex.
Further, OSHA did not propose such a requirement, and this issue raises
questions not adequately aired in the record. For example, if an employee has
recurring episodes of low back pain, should the employer be required to
record each day the employee experiences such pain as a recurring injury?
OSHA is also unsure how recurrence data should be captured and used in the
Nation's injury and illness statistics. For example, would a separate data
set on recurrences, similar to data on injuries and illnesses, be produced by
the BLS? OSHA
has therefore decided that it is not appropriate to add a column to the Log
to capture data on recurring injuries and illnesses. However, OSHA recognizes
that data on injury and illness recurrence may be useful to employers and
employees at individual worksites and encourages employers who wish to
collect this additional information to do so; however, the final rule does
not require employers to provide recurrence data on the Log. Section 1904.7 General Recording Criteria Section
1904.7 contains the general recording criteria for recording work-related
injuries and illnesses. This section describes the recording of cases that
meet one or more of the following six criteria: death, days away from work,
restricted work or transfer to another job, medical treatment beyond first
aid, loss of consciousness, or diagnosis as a significant injury or illness
by a physician or other licensed health care professional. Paragraph
1904.7(a) Paragraph
1904.7(a) describes the basic requirement for recording an injury or illness
in the OSHA recordkeeping system. It states that employers must record any
work-related injury or illness that meets one or more of the final rule's
general recording criteria. There are six such criteria: death, days away
from work, days on restricted work or on job transfer, medical treatment
beyond first aid, loss of consciousness, or diagnosis by a physician or other
licensed heath care professional as a significant injury or illness. Although
most cases are recorded because they meet one of these criteria, some cases
may meet more than one criterion as the case continues. For example, an
injured worker may initially be sent home to recuperate (making the case
recordable as a "days away" case) and then subsequently return to
work on a restricted ("light duty") basis (meeting a second
criterion, that for restricted work). (see the discussion in Section 1904.29
for information on how to record such cases.) Paragraph
1904.7(b) Paragraph
1904.7(b) tells employers how to record cases meeting each of the six general
recording criteria and states how each case is to be entered on the OSHA 300
Log. Paragraph 1904.7(b)(1) provides a simple decision table listing the six
general recording criteria and the paragraph number of each in the final
rule. It is included to aid employers and recordkeepers in recording these
cases. 1904.7(b)(2)
Death Paragraph
1904.7(b)(2) requires the employer to record an injury or illness that
results in death by entering a check mark on the OSHA 300 Log in the space
for fatal cases. This paragraph also directs employers to report work-related
fatalities to OSHA within 8 hours and cross references the fatality and
catastrophe reporting requirements in § 1904.39 of the final rule, Reporting
fatalities and multiple hospitalizations to OSHA. Paragraph
1904.7(b)(2) implements the OSH Act's requirements to record all cases
resulting in work-related deaths. There were no comments opposing the
recording of cases resulting in death. However, there were several comments
questioning the determination of work-relatedness for certain fatality cases
and the appropriateness of reporting certain kinds of fatalities to OSHA.
These comments are addressed in the sections of this preamble devoted to
work-relationship and fatality reporting (sections 1904.5 and 1904.39,
respectively). Paragraph
1904.7(b)(3) Days Away From Work Paragraph
1904.7(b)(3) contains the requirements for recording work-related injuries
and illnesses that result in days away from work and for counting the total
number of days away associated with a given case. Paragraph 1904.7(b)(3)
requires the employer to record an injury or illness that involves one or
more days away from work by placing a check mark on the OSHA 300 Log in the
space reserved for day(s) away cases and entering the number of calendar days
away from work in the column reserved for that purpose. This paragraph also
states that, if the employee is away from work for an extended time, the
employer must update the day count when the actual number of days away
becomes known. This requirement continues the day counting requirements of
the former rule and revises the days away requirements in response to
comments in the record. Paragraphs
1904.7(b)(3)(i) through (vi) implement the basic requirements. Paragraph
1904.7(b)(3)(i) states that the employer is not to count the day of the
injury or illness as a day away, but is to begin counting days away on the
following day. Thus, even though an injury or illness may result in some loss
of time on the day of the injurious event or exposure because, for example, the
employee seeks treatment or is sent home, the case is not considered a
days-away-from-work case unless the employee does not work on at least one
subsequent day because of the injury or illness. The employer is to begin
counting days away on the day following the injury or onset of illness. This
policy is a continuation of OSHA's practice under the former rule, which also
excluded the day of injury or onset of illness from the day counts. Paragraphs
1904.7(b)(3)(ii) and (iii) direct employers how to record days-away cases
when a physician or other licensed health care professional (HCP) recommends
that the injured or ill worker stay at home or that he or she return to work
but the employee chooses not to do so. As these paragraphs make clear, OSHA
requires employers to follow the physician's or HCP's recommendation when
recording the case. Further, whether the employee works or not is in the
control of the employer, not the employee. That is, if an HCP recommends that
the employee remain away from work for one or more days, the employer is
required to record the injury or illness as a case involving days away from
work and to keep track of the days; the employee's wishes in this case are
not relevant, since it is the employer who controls the conditions of work.
Similarly, if the HCP tells the employee that he or she can return to work,
the employer is required by the rule to stop counting the days away from
work, even if the employee chooses not to return to work. These policies are
a continuation of OSHA's previous policy of requiring employees to follow the
recommendations of health care professionals when recording cases in the OSHA
system. OSHA is aware that there may be situations where the employer obtains
an opinion from a physician or other health care professional and a
subsequent HCP's opinion differs from the first. (The subsequent opinion
could be that of an HCP retained by the employer or the employee.) In this
case, the employer is the ultimate recordkeeping decision-maker and must
resolve the differences in opinion; he or she may turn to a third HCP for
this purpose, or may make the recordability decision himself or herself. Paragraph
1904.7(b)(3)(iv) specifies how the employer is to account for weekends,
holidays, and other days during which the employee was unable to work because
of a work-related injury or illness during a period in which the employee was
not scheduled to work. The rule requires the employer to count the number of
calendar days the employee was unable to work because of the work-related
injury or illness, regardless of whether or not the employee would have been
scheduled to work on those calendar days. This provision will ensure that a
measure of the length of disability is available, regardless of the
employee's work schedule. This requirement is a change from the former
policy, which focused on scheduled workdays missed due to injury or illness
and excluded from the days away count any normal days off, holidays, and
other days the employee would not have worked. Paragraph
1904.7(b)(3)(v) tells the employer how to count days away for a case where
the employee is injured or becomes ill on the last day of work before some
scheduled time off, such as on the Friday before the weekend or the day
before a scheduled vacation, and returns to work on the next day that he or
she was scheduled to work. In this situation, the employer must decide if the
worker would have been able to work on the days when he or she was not at
work. In other words, the employer is not required to count as days away any
of the days on which the employee would have been able to work but did not
because the facility was closed, the employee was not scheduled to work, or
for other reasons unrelated to the injury or illness. However, if the
employer determines that the employee's injury or illness would have kept the
employee from being able to work for part or all of time the employee was
away, those days must be counted toward the days away total. Paragraph
1904.7(b)(3)(vi) allows the employer to stop counting the days away from work
when the injury or illness has resulted in 180 calendar days away from work.
When the injury or illness results in an absence of more than 180 days, the
employer may enter 180 (or 180+) on the Log. This is a new provision of the
final rule; it is included because OSHA believes that the "180"
notation indicates a case of exceptional severity and that counting days away
beyond that point would provide little if any additional information. Paragraph
1904.7(b)(3)(vii) specifies that employers whose employees are away from work
because of a work-related injury or illness and who then decide to leave the
company's employ or to retire must determine whether the employee is leaving
or retiring because of the injury or illness and record the case accordingly.
If the employee's decision to leave or retire is a result of the injury or
illness, this paragraph requires the employer to estimate and record the
number of calendar days away or on restricted work/job transfer the worker
would have experienced if he or she had remained on the employer's payroll.
This provision also states that, if the employee's decision was unrelated to
the injury or illness, the employer is not required to continue to count and
record days away or on restricted work/job transfer. Paragraph
1904.(b)(3)(viii) directs employers how to handle a case that carries over
from one year to the next. Some cases occur in one calendar year and then
result in days away from work in the next year. For example, a worker may be
injured on December 20th and be away from work until January 10th. The final
rule directs the employer only to record this type of case once, in the year
that it occurred. If the employee is still away from work when the annual
summary is prepared (before February 1), the employer must either count the
number of days the employee was away or estimate the total days away that are
expected to occur, use this estimate to calculate the total days away during
the year for the annual summary, and then update the Log entry later when the
actual number of days is known or the case reaches the 180-day cap allowed in
§ 1904.7(b)(3)(v). Comments
on the Recording of Days Away From Work OSHA
received a large number of comments on how days away should be counted. The
issues addressed by commenters included (1) whether to count scheduled
workdays or calendar days, (2) whether the day counts should be
"capped," and, if so, at what level, (3) how to count days away or
restricted when employees are terminated or become permanently disabled, and
(4) how to handle cases that continue to have days away/ restricted from one
year to the next. Scheduled or calendar work days. OSHA proposed to count scheduled workdays,
consistent with its long-standing policy of excluding normal days off such as
weekends, holidays, days the facility is closed, and prescheduled vacation
days (61 FR 4033). The proposal asked the public for input on which counting
method -- calendar days or scheduled work days -- would be better, stating
that "OSHA is considering a modification to the concept of days away
from work to include days the employee would normally not have worked (e.g.
weekends, holidays, etc.). OSHA believes this change to calendar days would
greatly simplify the method of counting days away by eliminating the need to
keep track of, and subtract out, scheduled days off from the total time
between the employee's first day away and the time the employee was able to
return to full duty" (61 FR 4033). The proposal also discussed the
potential benefits and pitfalls of counting calendar days: Another
potential benefit of changing to calendar days would be that the day count
would more accurately reflect the severity of the injury or illness. The day
count would capture all the days the employee would not have been able to
work at full capacity regardless of work schedules. For example, if an
employee, who normally does not work weekends, is injured on a Friday and is
unable to work until the following Tuesday, the "days away from
work" would be three (3), using calendar days, rather than one (1) day,
using work days. If the same injury occurred on a Monday, the day count would
be three (3) using either calendar or workdays. Changing the day count to
calendar days would eliminate discrepancies based upon work schedules. Thus,
the day counts would be easier to calculate and potentially more meaningful. One
of the potential problems with this change would be that economic information
on lost work time as a measure of the impact of job related injuries and
illnesses on work life would no longer be available. Employers could,
however, estimate work time lost by applying a work day/calendar day factor
to the recorded day counts. OSHA solicits comment on the idea of counting
calendar days rather than work days, in particular, what potential do these
methods have for overstating (i.e. counting calendar days) or understating
(i.e. counting work days) the severity of injuries and illnesses? (61 FR
4034) OSHA
received a large number of comments on the calendar day/ scheduled day issue.
Many commenters suggested that OSHA track days away from work using its
former method of counting scheduled workdays (see, e.g., Exs. 21; 30;
37; 15: 10, 16, 30, 42, 44, 48, 61, 66, 69, 78, 79, 89, 100, 107, 108, 119,
121, 122, 127, 130, 133, 146, 151, 152, 154, 159, 163, 170, 172, 179, 180,
200, 203, 204, 213, 214, 219, 226, 246, 260, 262, 265, 281, 287, 297, 299,
300, 304, 305, 307, 308, 341, 346, 356, 363, 364, 368, 373, 378, 384, 385,
387, 389, 390, 397, 401, 404, 410, 413, 414, 424, 426, 427, 431, 440, 443).
Many commenters also suggested that OSHA use calendar days instead of
scheduled workdays to track days away from work (see, e.g., Exs. 19;
44; 15: 26, 27, 31, 34, 44, 71, 75, 82, 105, 111, 119, 127, 136, 137, 138,
141, 153, 181, 182, 188, 198, 205, 218, 224, 233, 242, 263, 266, 269, 270,
271, 278, 310, 316, 326, 337, 345, 347, 350, 359, 369, 377, 391, 396, 405,
407, 409, 415, 418, 423, 425, 428, 429, 434, 438). The arguments of each
group fall loosely into two categories: which counting method provides the
most meaningful data and which method is least burdensome. Arguing
against counting calendar days, a number of commenters stated that calendar
days would overstate lost workdays and artificially inflate or distort
severity rates (see, e.g., Exs. 15: 10, 16, 42, 44, 69, 108, 119, 127,
130, 133, 146, 159, 163, 170, 195, 203, 213, 219, 281, 287, 297, 300, 304,
305, 307, 341, 356, 364, 373, 385, 389, 390, 397, 404, 410, 414, 424, 426,
431, 440, 443). Some commenters also argued that the information would be
"false and misleading" (see, e.g., Exs. 15: 287, 443),
"would not indicate true severity" (Ex. 15: 108), or would make it
difficult to compare data from the old rule with data kept under the new
rules (see, e.g., Exs. 37; 15: 44, 61, 130, 146, 226, 281, 297, 299,
300, 304, 341, 378, 384, 385, 397, 404, 426, 440). Typical of these views was
the one expressed by the American Trucking Associations (Ex. 15: 397), which
stated that: This
provision serves no useful purpose. Its proponents exaggerate the difficulty
in computing days away from work under the current regulation. Instead, it
will only serve the purpose of artificially increasing incidence and severity
rates which would falsely designate a given worksite as unsafe or delineate
it as a high hazard workplace. This false delineation of high hazardousness
would also result in the workplace being unfairly targeted by OSHA for
enforcement activities. In addition, this change would make it difficult, if
not impossible, for employers to compare previous lost work day incidence
rates with current rates. Such trend data is invaluable to employers in
tracking progress made in eliminating workplace injuries and illnesses. Other
commenters, however, argued that calendar days would be a better statistical
measure (see, e.g., Exs. 15: 71, 75, 347, 425, 434, 438). For example,
the American Waterways Shipyard Conference (Ex. 15: 75) stated: AWSC
would also urge that "days away from work" be counted by calendar
days rather than work days. This would ease the burden on establishments in
their recordkeeping and would also make the data more useful. For example, an
employee injured on Friday who does not return to work until Tuesday is
currently counted as one-day off the job. If "days away from work" are
calculated by calendar days, then this same injury would be counted as three
days. The three day injury ruling is a more accurate indicator of the
seriousness of the injury. The
United Auto Workers (UAW) argued that: "Calendar days are a much better
measure of severity or disability than actual days which are adjusted for
work schedule, vacations, layoffs and other extraneous disruptions. Frankly,
counting actual days is a waste of effort, subject to manipulation and serves
no public health purpose. It is relic and should be eliminated. The only
reason some employers might wish to retain this measure is because they can
generate a lower number" (Ex. 15: 438). Other
commenters were concerned that the change to counting calendar days would
have an unfair effect on firms that rely more heavily on part-time workers,
use alternative schedules, and/or use planned plant shutdowns (see, e.g.,
Exs. 15: 42, 96, 121, 159, 163, 213, 219, 200, 262, 281, 299). For example,
Dayton Hudson Corporation (Ex. 15: 121) stated that: DHC
questions the concept of counting calendar days versus the proposed scheduled
work days in documenting days away from work. Both methods have their value
and also potential problems. The calendar method would make it much easier
for a company to record the severity of an accident. However, this method
would have a significant effect on an industry such as retailing, since the
majority of our work force is part-time. If OSHA decides to go with the
calendar method, there needs to be clearly defined examples referenced in the
standard dealing with part-time workers. Northrop
Grumman Corporation (Ex. 15: 42) asserted that: "[c]ounting calendar
days for days away from work would have an adverse impact on those companies,
such as aerospace companies, which routinely have shut downs for one or more
weeks at a time. Employees injured on the day prior to shut down would have
to be recorded as being injured, off work, for the entire time of the shut
down." The Texas Chemical Council (Ex. 15: 159) expressed concern about
the impact the change to calendar days might have on day counts involving
alternative schedules: We
believe the value of the reduced burden is not worth the skewed data that may
result. OSHA's proposal may yield accurate data and better reflect severity when
applied to work schedules following an 8 hour day, Monday through Friday.
However, many industries utilize a 12 hour shift that provides periods of
time off longer than the normal two day weekends. The proposed method of
counting days could, for example, turn an injury requiring two days
recuperation time into a case requiring four or more days to be counted. This
would skew severity analysis utilizing days off data. However,
the Eli Lilly Company (Ex. 15: 434) argued that calendar days would help
equalize day counts: "[a] calendar day count would ensure employer
consistency and comparability even when employers have unique and variable
shift works." Other
commenters argued that scheduled workdays are a better measurement because
they measure economic impact and lost productivity (see, e.g., Exs.
15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364, 367, 397). The
Fertilizer Institute (Ex. 15: 154) argued that: "Although such a change
might simplify the counting of days, it will make comparisons difficult for
companies, trade and professional associations, and government agencies that
are trying to measure the severity of injuries and illnesses in terms of
productivity. In addition to the health and safety of its employees, industry
is primarily concerned with the cost of work-related injuries and illnesses,
as they relate to lost productivity. Thus, the basis of the lost work day,
not the lost calendar day, is the most appropriate measurement to use."
The Society of the Plastics Industry, Inc. (Ex. 15: 364) urged OSHA to retain
the scheduled days system because of its usefulness in measuring the economic
impact of job-related accidents and the incentive such information provides
for prevention efforts. In
addition to arguments about the preferred way of counting days away,
commenters discussed the issues of simplification and the burden of counting
days away from work with both methods. A number of commenters supported using
calendar days because doing so would simplify the process and reduce burden
(see, e.g., Exs. 15: 71, 75, 82, 136, 137, 141, 224, 242, 263, 266,
269, 270, 278, 347, 377, 415, 418, 423, 434). Two commenters made the point
that using calendar days would make it easier to use computer software to
calculate days away from work (Exs. 15: 347, 423). Representative of the
comments supporting the use of calendar days to reduce the recording burden
was the view of the Ford Motor Company (Ex. 15: 347): The
single most significant change that could be made to simplify and reduce the
burden of the current recordkeeping system would be a change to a calendar
count for days away from work. This would eliminate the need to keep track of
and subtract out any scheduled days off from the time of the employee's first
day away until the time the employee was able to return to work. Of
additional importance, a calendar count approach would provide a more
accurate reflection of the severity of injuries and illnesses. Currently,
tracking days away from work is a particular problem in that many individuals
no longer work a traditional eight hours a day, Monday through Friday. Some
individuals work four days a week, ten hours a day, others work every
Saturday and/or Sunday, and some individuals have their scheduled days off
during the week. Different employees in the same establishment commonly have
different work schedules. Different departments are commonly on "down
time" while the rest of the establishment may be in full operation. A
calendar count will simplify the calculation of days away from work for
alternative work schedules. In
comparison to the current system, a calendar count will provide meaningful,
consistent, and useful data, as well as provide an accurate reflection of
severity. The calendar day count will also enhance the ability to develop
software to standardize the recordkeeping process. In
addition, the change to a calendar day count would enable Ford Motor Company
to free up highly trained personnel for more productive and effective
pursuits rather than tracking lost workdays under the current system. The
cost of these resources to track lost workdays cases exceeds one million
dollars per year. Even
some of the commenters who argued against OSHA's adoption of a calendar day
approach in the final rule acknowledged that counting calendar days would be simpler
but emphasized that this added simplicity and reduction in burden would not
offset the deleterious effect of this change on the data (see, e.g.,
Exs. 15: 44, 61, 69, 121, 154, 159, 170, 195). The Institute for
Interconnecting and Packaging Electronic Circuits (IPC) said that:
"According to IPC member companies, the potential simplification gains
that may be achieved by this proposal would not outweigh the gross
overreporting and, therefore, inaccurate data that would result" (Ex.
15: 69). Other
commenters arguing against calendar days stated that counting scheduled
workdays is not difficult or onerous (see, e.g., Exs. 15: 107, 146,
387), that counting calendar days would not simplify the counting of lost
workdays (see, e.g., Exs. 15: 16, 119, 146, 281, 299, 304, 308, 341,
364, 367, 424), that counting calendar days would add to the administrative
burden (see, e.g., Exs. 15: 42, 146, 304, 308, 341, 364, 367, 431),
that counting calendar days would add confusion (see, e.g., Exs. 15:
204, 431), or that employers already report scheduled workdays to workers'
compensation and thus this information is already available (see, e.g.,
Exs. 15: 367, 384). Commenters also cited the need to change computer
software systems if a shift to calendar days was made (Ex. 15: 122) and
argued that retaining scheduled workdays would require less training than
moving to calendar days (see, e.g., Exs. 15: 37, 122, 133, 304, 384).
The BF Goodrich Company (Ex. 15: 146) summed up these views: BF
Goodrich's business systems are set up to count and track work days and work
hours. We do not agree with the suggestion of counting calendar days rather
than actual work days for Days Away From Work cases. Counting calendar days
would improperly inflate the severity incidence rates which are calculated
based on actual hours worked and defeat any efforts to perform trend analysis
against previous years. Use of calendar days would also require unnecessary
analysis of work capability for days that would not be worked anyway. There
would be no reduction in burden in a calendar day system and there would be
loss of severity trend analysis capability. A
number of commenters pointed to the difficulty of analyzing days away for
injuries that occur just before scheduled time off, such as before the weekend
(see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179, 226, 281, 299, 341,
363, 389, 414, 424). The Institute for Interconnecting and Packaging
Electronic Circuits (IPC) described the following scenario: [i]f
a worker is injured on Friday, is sent home, and returns to work on Monday,
the alternative [calendar day] proposal would require employers to count
weekend days in the lost workday count. IPC believes that this alternative
proposal would not accurately reflect the severity of the injury since, if the
same injury had occurred on a Monday, the worker might have been able to
return to work on Tuesday. (Ex. 15: 69) United
Parcel Service (UPS) was concerned about the accuracy of employee reporting
of injuries and illnesses under the calendar day system: [t]he
cessation of the effects of an employee's injury or illness cannot reliably
be determined in the case of a worker who "heals" on the weekend.
Thus, the number of days away from work and their impact on the perception of
serious incidents will be substantially inflated. Indeed, it has been UPS's
experience that a disproportionate number of injuries are reported on Friday
and Monday; inclusion of claimed weekend injury, therefore, would greatly
inflate OSHA statistics with factors that honest observers know to be linked,
to some degree, with the universal attraction of an extended weekend. The
risk, moreover, is not merely inflated numbers, but inflation of the apparent
severity of those conditions that are difficult to verify and that are
therefore the most likely resort of employees who would misreport a condition
for time off (Ex. 15: 424). Another
issue noted by commenters was the difficulty of getting medical attention
over the weekend. For example, the American Ambulance Association (Ex. 15:
226) cautioned that "The common practice of a health care provider is to
defer an employee's return to work until after a weekend or holiday, due to
limited staff resources for evaluating employee status on those days,"
and the Sandoz Corporation (Ex. 15: 299) noted that "This change [to
calendar days] would lead to overstatement of the severity in cases of
part-time employees due to the difficulty of getting return-to-work clearance
from medical personnel." Two
commenters (Exs. 15: 69, 15: 363) objected to counting calendar days based on
a belief that counting these days would raise their workers' compensation
insurance rates. For example, the Institute for Interconnecting and Packaging
Electronic Circuits (IPC) stated that "Lost time is a major factor in insurance
premiums for facilities. As a result, a definition that would over-estimate
lost time would significantly raise facility insurance costs" (Ex. 15:
69). Patrick
R. Tyson, a partner in the law firm of Constangy, Brooks & Smith, LLC
(Ex. 55X, pp. 99-100), strongly favored moving to a calendar-day-count
system, for the following reason: [w]hat
we've seen in some audits is companies that attempt to try to control the
number of days that would be counted as lost work days by controlling the
number of days that otherwise would be worked.* * * We
* * * encountered one company that announced proudly in its newsletter that
one particular employee should be congratulated because when she had to have
surgery for carpal tunnel syndrome, clearly work related * * * she chose to
have that surgery during her vacation so that the company's million man hours
of work without a lost time accident would not be interrupted. That doesn't
make any sense where we encourage those kinds of things * * * We ought to
consider a calendar count if only to address those kinds of situations. I
understand that would cause problems with respect to those companies who use
lost work days as a measure of the economic impact of injuries and illnesses
in the workplace, but I suspect that a better measure of that would be
worker's compensation. If it's a lost work day, you're going to pay comp on
it. * * * OSHA
agrees with some of the points made by those in favor of, and those opposed
to, changing over to calendar day counts. After a thorough review of the
arguments for each alternative, however, OSHA has decided to require
employers to count calendar days, both for the totals for days away from work
and the count of restricted workdays. OSHA does not agree with those
commenters who argued that the counting of calendar days away from work would
be a significant burden. The Agency finds that counting calendar days is
administratively simpler than counting scheduled days away and thus will
provide employers who keep records some relief from the complexities of
counting days away from work (and days of restricted work) under the old
system. For the relatively simple injury or illness cases (which make up the
great majority of recorded cases) that involve a one-time absence from work
of several days, the calendar-day approach makes it much easier to compare
the injury/illness date with the return-to-work date and compute the
difference. This process is easier than determining each employee's normal
schedule and adjusting for normal days away, scheduled vacations, and days
the facility was not open. The calendar method also facilitates computerized
day counts. OSHA recognizes that, for those injuries and illnesses that
require two or more absences, with periods of work between, the advantages of
the calendar day system are not as significant; OSHA notes, however, that
injuries and illnesses following this pattern are not common. Changing
to a calendar day counting system will also make it easier to count days away
or restricted for part-time workers, because the difficulties of counting
scheduled time off for part-time workers will be eliminated. This will, in
turn, mean that the data for part-time workers will be comparable to that for
full-time workers, i.e., days away will be comparable for both kinds of workers,
because scheduled time will not bias the counting method. Calendar day counts
will also be a better measure of severity, because they will be based on the
length of disability instead of being dependent on the individual employee's
work schedule. This policy will thus create more complete and consistent data
and help to realize one of the major goals of this rulemaking: to improve the
quality of the injury and illness data. OSHA
recognizes that moving to calendar day counts will have two effects on the data.
First, it will be difficult to compare injury and illness data gathered under
the former rule with data collected under the new rule. This is true for day
counts as well as the overall number and rate of occupational injuries and
illnesses. Second, it will be more difficult for employers to estimate the
economic impacts of lost time. Calendar day counts will have to be adjusted
to accommodate for days away from work that the employee would not have
worked even if he or she was not injured or ill. This does not mean that
calendar day counts are not appropriate in these situations, but it does mean
that their use is more complicated in such cases. Those employers who wish to
continue to collect additional data, including scheduled workdays lost, may
continue to do so. However, employers must count and record calendar days for
the OSHA injury and illness Log. Thus,
on balance, OSHA believes that any problems introduced by moving to a
calendar-day system will be more than offset by the improvements in the data
from one case to the next and from one employer to another, and by the
resulting improvements in year-to-year analysis made possible by this change
in the future, i.e., by the improved consistency and quality of the data. The
more difficult problem raised by the shift to calendar days occurs in the
case of the injury or illness that results on the day just before a weekend
or some other prescheduled time off. Where the worker continues to be off
work for the entire time because of the injury or illness, these days are
clearly appropriately included in the day count. As previously discussed, if
a physician or other licensed health care professional issues a medical
release at some point when the employee is off work, the employer may stop
counting days at that point in the prescheduled absence. Similarly, if the
HCP tells the injured or ill worker not to work over the scheduled time off,
the injury was severe enough to require days away and these must all be
counted. In the event that the worker was injured or became ill on the last
day before the weekend or other scheduled time off and returns on the
scheduled return date, the employer must make a reasonable effort to
determine whether or not the employee would have been able to work on any or
all of those days, and must count the days and enter them on the Log based on
that determination. In this situation, the employer need not count days on
which the employee would have been able to work, but did not, because the
facility was closed, or the employee was not scheduled to work, or for other
reasons unrelated to the injury or illness. Accordingly,
the final rule adopts the counting of calendar days because this approach
provides a more accurate and consistent measure of disability duration
resulting from occupational injury and illness and thus will generate more
reliable data. This method will also be easier and less burdensome for
employers who keep OSHA records and make it easier to use computer programs
to keep track of the data. Capping
the Count of Lost Workdays OSHA
proposed to limit, or cap, the total number of days away from work the
employer would be required to record. This would have been a departure from
OSHA's former guidance for counting both days away from work and restricted
workdays. The former rule required the employer to maintain a count of lost
workdays until the worker returned to work, was permanently reassigned to new
duties, had permanent work restrictions, or was terminated (or retired) for
reasons unrelated to the workplace injury or illness (Ex. 2, pp. 47-50). OSHA's
proposed regulatory text stated that "[f]or extended cases that result
in 180 or more days away from work, an entry of "180" or
"180+" in the days away from work column shall be considered an
accurate count" (61 FR 4058). In the preamble to the proposal, OSHA
explained that day counts of more than 180 days would add negligible
information for the purpose of injury and illness case analysis but would
involve burden when updating the OSHA records. The proposed preamble also
asked several questions: "Should the days away from work be capped? Is
180 days too short or long of a period? If so, should the count be capped at
60 days? 90 days? 365 days? or some other time period?" (61 FR 4033) A
large number of commenters supported a cap on day counts (see, e.g.,
Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, 85, 89, 95, 105, 108, 111, 119, 120,
121, 127, 132, 133, 136, 137, 141, 146, 153, 159, 170, 173, 176, 180, 182,
185, 188, 194, 195, 198, 199, 203, 205, 213, 224, 231, 233, 239, 242, 260,
262, 263, 265, 266, 269, 270, 271, 273, 278, 283, 287, 288, 289, 297, 298,
301, 304, 307, 310, 316, 317, 321, 332, 334, 335, 336, 341, 345, 346, 347,
348, 351, 368, 373, 374, 375, 377, 378, 384, 385, 387, 389, 390, 392, 397,
401, 404, 405, 434, 437, 440, 442). The most common argument was that capping
the counts would reduce the burden on employers (see, e.g., Exs. 21;
33; 15: 82, 95, 111, 146, 154, 159, 170, 176, 182, 188, 213, 231, 260, 262,
265, 273, 288, 289, 297, 301, 304, 305, 310, 341, 345, 346, 373, 389, 390,
401, 442) and simplify the OSHA recordkeeping system (see, e.g., Exs.
21; 15: 188, 297, 373). Several commenters argued that such a change would
produce a "significant" reduction in burden and cost (see, e.g.,
Exs. 15: 154, 159, 203, 297). The Miller Brewing Company comment (Ex. 15:
442) was representative: "We endorse this cap on the days away from work
(DAFW) calculation. Once a case reaches 180 days, it is clearly recognized as
a serious case. The requirement to calculate days away from work beyond 180
is a time consuming administrative exercise which provides no value-added
information relative to the severity of a given case. Again, we support this
rule change and OSHA's attempt to simplify the recordkeeping process." Commenters
also pointed out that limiting the day counts would make it easier to count
days for cases that span two calendar years (see, e.g., Exs. 15: 153,
194, 195, 289). Other commenters stated that it was difficult to modify the
former year's records (Ex. 15: 153) and that the day count cap would ease the
burden of tracking cases that span two calendar years (Ex. 15: 289). Several
commenters stated that the benefits of recording extended day counts were
insignificant (see, e.g., Exs. 15: 111, 159, 176, 184, 260, 262, 265,
288, 297, 373, 401, 430, 434, 442), that they added negligible information
for case analysis or safety and health program evaluation (Ex. 15: 434), and
that there was no "value added information" from high day counts
(see, e.g., Exs. 15: 260, 262, 265, 401, 442). Others stated that
capping the day counts would provide "adequate data" (see, e.g.,
Exs. 15: 111, 159, 304, 345) and that there would be no loss of significant
data for analysis (see, e.g., Exs. 15: 170, 184, 297, 341, 373). The
McDonnell Douglas Corporation (Ex. 15: 297) argued that a cap "[w]ould
allow industry to avoid the significant and costly paperwork burdens
associated with tracking lost workdays, without any appreciable reduction in
OSHA's ability to identify significant workplace injuries and illnesses or to
assure continuing improvement in workplace safety and health." Support
for capping the count of days away from work was not unanimous, and several
commenters opposed a day count cap (see, e.g., Exs. 15: 31, 62, 197,
204, 225, 277, 294, 302, 350, 359, 369, 379). The National Safety Council
stated that "[n]o cap on counting lost workdays is necessary provided
that the count automatically ends with termination, retirement, or entry into
long-term disability. Only a small proportion of cases have extended lost
workday counts so there is little additional recordkeeping burden. The
additional information gained about long-term lost workday cases is important
and keeps employers aware of such cases" (Ex. 15: 359). Other commenters
stressed that it was important to obtain an accurate accounting of days away
to assess the severity of the case (see, e.g., Exs. 15: 294, 379, 429,
440), that the counts were needed to make these cases visible (see, e.g.,
Exs. 15: 294, 440), and that the counts demonstrate the impact of long term
absences (Ex. 15: 62). For example, the Boeing Company (Ex. 15: 294) argued
that If
the count is suspended after 180 days (or any other arbitrary number), an
employer will lose valuable information regarding the true amount of lost
work days and their associated costs. The experience of The Boeing Company
indicates that there are a small number of cases that have many more than 180
days. The result is a disproportionate amount of total costs. Not having
visibility of these cases would be a mistake. The
United Steelworkers of America (USWA) offered several reasons for not
adopting a day count cap: "The USWA also strongly opposes capping lost
work day cases at 180. We believe that no cap is necessary or desirable. Only
a very small proportion of cases have extended lost workdays recorded so
there is little additional recordkeeping burden. The additional information
gained about long-term lost workday cases is important in evaluating the
severity of the injury and it keeps attention on such cases" (Ex. 15:
429). The
International Brotherhood of Teamsters (IBT) opposed the capping of day
counts on the basis that the OSH Act requires "accurate" records,
stating that: The
IBT opposes the elimination of counting the days of restricted work activity
and opposes capping the count of "days away from work" at 180 days.
The IBT uses the restricted work activity day count to gauge the severity of
an injury or illness. We are supported by the OSH Act, section 24(a)
"the Secretary shall compile accurate statistics on work injuries and
illnesses which shall include all disabling, serious, or significant injuries
or illnesses. * * *. The International Brotherhood of Teamsters maintains
that the recording of restricted work activity day counts and counting of
days away from work enables OSHA to compile accurate data on serious and
significant injuries. (Ex. 15: 369) After
a review of the evidence submitted to the record, OSHA has decided to include
in the final rule a provision that allows the employer to stop counting days
away from work or restricted workdays when the case has reached 180 days.
OSHA's primary reason for this decision is that very few cases involve more
than 180 days away or days of restricted work, and that a cap of 180 days
clearly indicates that such a case is very severe. Continuing to count days
past the 180-day cap thus adds little additional information beyond that
already indicated by the 180-day cap. Selection
of the Day Count Cap A
large number of commenters specifically supported the 180 day cap proposed by
OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121, 127, 136,
137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260, 262, 263, 265,
266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368, 377, 385, 401, 404,
423, 430, 437, 442). The Chemical Manufacturers Association (CMA) stated that
"CMA supports the use of a cap on the number of days away from work that
must be counted. Once an employee misses more than 180 days from work * * *
due a workplace injury or illness, the relative seriousness of the incident
is determined and little benefit is derived from continuing to count the
number of days for OSHA's recordkeeping system." The Fertilizer
Institute (Ex. 15: 154) supported 180 days because it "is consistent
with most corporate long-term disability plans." Many
commenters who supported a cap on counting days away recommended that OSHA
adopt a number of days other than 180 (see, e.g., Exs. 21; 37; 15: 60,
71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182, 185, 188, 194, 195, 198,
199, 203, 213, 239, 246, 271, 272, 287, 289, 297, 303, 304, 305, 307, 308,
317, 336, 347, 348, 351, 375, 378, 384, 385, 404, 405, 407, 409, 410, 414,
425, 431, 434). The most common argument against capping at 180 days was that
a few very serious cases would skew the statistical data (see, e.g.,
Exs. 15: 75, 180, 246, 271, 385, 409). Hoffman-La Roche, Inc. argued for 90
days on the grounds that "90 days is more than sufficient to get a read
on the severity of the injury/illness. This would enable employers to obtain
meaningful data that is not skewed by one or two cases" (Ex. 15: 271). Commenters
suggested a number of alternatives, including 30 days (see, e.g., Ex.
15: 414); 60 days (see, e.g., Exs. 15: 60, 108, 119, 194, 203, 246,
287, 405); 60 or 90 (Ex. 15: 407); 90 days (see, e.g., Exs. 21; 15:
75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303, 317, 336, 347, 378,
409, 410, 425, 431); 50 to 100 days (see, e.g., Exs. 37; 15: 384); 90
to 120 days (Ex. 15: 71); 90 or 180 days (Ex. 15: 434); 120 days (Ex. 15:
198); the equivalent of six months (see, e.g., Exs. 15: 82, 188, 199,
213, 304, 307, 308, 351, 375); one year (Ex. 15: 122); and 60 days after the
beginning of the new year (see, e.g., Ex. 15: 195). The
most common alternative recommended by commenters was 90 days (see, e.g.,
Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303, 317,
336, 347, 378, 409, 410, 425, 431). These commenters argued that 90 days
would reduce the burden without a loss of information (see, e.g., Exs.
15: 75, 85, 239, 297, 425), that 90 days is sufficient to determine severity
(see, e.g., Exs. 15: 85, 105, 271 272, 289, 303, 410), that 90 days
matches existing labor agreements (see, e.g., Exs. 15: 378), and that
90 days limits the problems caused by a case that extends over 2 years (see, e.g.,
Exs. 15: 407, 431). NIOSH
(Ex. 15: 407) commented that: NIOSH
agrees with OSHA that "day counts greater than 180 days add negligible
information while entailing significant burden on employers when updating OSHA
records." Therefore, NIOSH agrees with the concept of capping the count
of days away from work at a maximum of 180 days, and recommends that OSHA
also consider caps of 60 or 90 days away from work. Currently,
the Annual Survey of Occupational Injuries and Illnesses reports
distributional data for the number of days away from work and the median
number of days away from work for demographic (age, sex, race, industry, and
occupation) and injury/ illness (nature, part of body, source, and event)
characteristics. The largest category of days away from work reported by the
BLS for days away from work is "31 days or more." In 1992, the
Annual Survey reported median days away from work that ranged from 1 day to
236 days [U.S. Department of Labor 1995]. For most demographic and
injury/illness categories, capping the count of days away from work at 180
days will not alter the values for either the percent of injuries in the
"31 days or more" category or median days away from work. OSHA
may wish to consider capping the count of days away from work at either the
60 or the 90 day level. Employers could be instructed to enter a value of
61+(or 91+) to indicate that the recorded injury or illness condition existed
beyond the cap on the count of days away from were based on the 1992 Annual
Survey data, no reported industry and only one reported occupation had a
median of greater than 60 days (dental hygienist, median = 71). There was
also a very small number of injury/illness characteristics with medians
between 60 and 90 days or with medians exceeding 90 days. Eleven of the 13
instances in which the median exceeded 60 days away from work were based on
distributions involving a small number of estimated cases i.e., only 100 to
400 nationally. Capping the count of days away from work at either 60 or 90
days would still allow the reporting of the proportion of cases involving
days away from work in the "31 days or more category" that is
currently being reported by the BLS. A minor limitation of capping the count of
days away from work at 60 or 90 days is that for a very small number of
characteristics, the median would have to be reported as exceeding the cap. Two
commenters suggested that OSHA use months instead of days as the measurement
(Exs. 15: 304, 404), and a number of commenters pointed out that OSHA's
proposed 180 days should be 125 if based on 6 months of actual workdays
instead of calendar days (see, e.g., Exs. 15: 199, 213, 307, 308,
348). After
careful consideration, OSHA has decided to cap the day counts at 180 days and
to express the count as days rather than months. The calendar month is simply
too large and unwieldy a unit of measurement for this purpose. The
calendar-day method is the simplest method and will thus produce the most
consistent data. OSHA
has decided to cap the counts at 180 days to eliminate any effect such
capping might have on the median days away from work data reported by BLS.
This cap will continue to highlight cases with long periods of disability,
and will also reduce the burden on employers of counting days in excess of
180. Using a shorter threshold, such as 90 or even 120 days, could impact the
injury and illness statistics published by the BLS, and could thus undermine
the primary purpose of this regulation: to improve the quality and utility of
the injury and illness data. Using a shorter time frame would also make it
harder to readily identify injuries and illnesses involving very long term
absences. The rule also does not require the employer to use the designation
of 180+ or otherwise require cases extending beyond 180 days to be marked
with an asterisk or any other symbol, as suggested by various commenters
(see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407, 425). Employers who
wish to attach such designations are free to do so, but OSHA does not believe
such designations are needed. Counting
Lost Workdays When Employees Are No Longer Employed by the Company The
proposed rule contained a provision that would have allowed the employer to
stop counting the days away from work when the worker was terminated for
reasons unrelated to an injury or illness (61 FR 4058). This provision would
have continued OSHA's former policy on this matter, which allowed the
employer to stop counting days away or restricted workdays when the
employee's employment was terminated by retirement, plant closings, or like
events unrelated to the employee's work-related injury or illness (Ex. 2, pp.
49, 50). The final rule, at paragraph 1904.7(b)(3)(vii), permits employers to
stop counting days away if an injured or ill employee leaves employment with
the company for a reason unrelated to the injury or illness. Examples of such
situations include retirement, closing of the business, or the employee's
decision to move to a new job. Paragraph
1904.7(b)(3)(vii) also requires employers whose employees have left the
company because of the injury or illness to make an estimate of the total
days that the injured or ill employee would have taken off work to
recuperate. The provisions in paragraph 1904.7(b)(3)(vii) also apply to the
counting of restricted or transferred days, to ensure that days are counted
consistently and to provide the simplest counting method that will collect
accurate data. OSHA's reasoning is that day counts continue to be relevant
indicators of severity in cases where the employee was forced to leave work
because of the injury or illness. Handling
Cases That Cross Over From One Year to the Next A
special recording problem is created by injury and illness cases that begin
in one year but result in days away from work or days of restricted work in
the next year. Under the former rule, the employer was to record the case
once, in the year it occurred, and assign all days away and restricted days
to that case in that year (Ex. 2, p. 48). Under the rule being published
today, this policy still applies. If the case extends beyond the time when
the employer summarizes the records following the end of the year as required
by § 1904.32, the employer is required by paragraph 1904.7(b)(3)(viii) to
update the records when the final day count is known. In other words, the
case is entered only in the year in which it occurs, but the original Log
entry must subsequently be updated if the day count extends into the
following year. In
addition to the NIOSH (Ex. 15: 407) comments on the day counts summarized
above, the Society for Human Resource Management (Ex. 15: 431) urged OSHA to
adopt a lower day count cap to limit the "crossover" problem. Two
commenters urged OSHA to take a new approach to cases that extend over two or
more years. Both the Laborers' Health & Safety Fund of North America (Ex.
15: 310) and the Service Employees International Union (Ex. 15: 379)
recommended that these cases be recorded in each year, with the days for each
year assigned to the appropriate case. The Laborers' Health & Safety Fund
of North America (Ex. 15: 310) stated: One
concern with a large number of days away from work is how to record the lost
days which begin in one calendar year and end in a following calendar year.
We suggest that it is best to record the number of days lost from the date of
the injury to the end of the calendar year, and to enter the injury again on
the following year's OSHA 300 with the remaining days of lost time up to the
180 day maximum. A box should be available to indicate that the entry is a
continuation from the prior year. As
stated earlier, OSHA has decided on the 180 day cap for both days away and
days of restricted work cases to ensure the visibility of work-related
injuries and illnesses with long periods of disability. The final rule also
requires the employer to summarize and post the records by February 1 of the
year following the reference year. Therefore, there will be some cases that
have not been closed when the records are summarized. Although OSHA expects
that the number of cases extending over two years will be quite small, it
does not believe that these cases warrant special treatment. A policy that
would require the same case to be recorded in two years would result in
inaccurate data for the following year, unless special instructions were
provided. Accordingly, the final rule requires the employer to update the Log
when the final day count is known (or exceeds 180 days), but to record the
injury or illness case only once. This approach is consistent with OSHA's
longstanding practice and is thus familiar to employers. Miscellaneous
Day Counting Issues Two
commenters provided additional comments for OSHA to consider on the issue of
counting days away from work. The Laborers' Health & Safety Fund of North
America (Ex. 15: 310) recommended that OSHA require employers to enter a
count of 365 days away from work on the Log for any fatality case: In
a recent project we used OSHA 200 data from road construction and maintenance
employers to determine the causes and relative severities of serious
injuries. The number of lost workdays plus restricted work activity days for
an injury event or type was used as a measure of severity. In quite a few
individual injury cases, the number of days away from work entry was not
available because of the severity of the injury or because the injury
resulted in a fatality. For recordkeeping purposes, we would suggest a
maximum cap of 180 days for a non-fatal serious injury of long duration, and
an automatic entry of 365 for fatalities. Using this method, the most severe
cases would be weighted appropriately, with fatalities carrying the heaviest
weight. Also, entering a lost workday number for fatalities would enable
fatalities to count in a single and simple "severity-weighted Lost Work
Day Injury and Fatality (LWDIF) rate". OSHA
has not adopted the Laborers' Health & Safety Fund of North America
recommendation. OSHA believes that fatalities must be considered separately
from non-fatal cases, however severe the latter may be. When an employee dies
due to a work-related injury or illness, the outcome is so severe and so
important that it must be treated separately. Merging the two types of cases
would diminish the importance of fatality entries and make the days away data
less useful for determining the severity of days away injury cases.
Accordingly, the final rule being published today does not reflect this
recommendation. The
Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look at days of
hospitalization as a measure of severity, stating "[t]he number of days
hospitalized does provide a more objective indication of the seriousness of
injury or illness, if for no other reason than cost control by insurance
companies. If OSHA can document a legitimate use for an indicator of the
"seriousness" of an injury, it may want to consider hospital stay
time." OSHA has considered the use of hospitalized days, but has
rejected them as a measure of injury or illness severity. Although these day
counts may be a reasonable proxy for severity, they are applicable only in a
relatively small number of cases. Paragraph
1904.7(b)(4) Restricted Work or Transfer to Another Job Another
class of work-related injuries and illnesses that Section 8(c) of the Act
identifies as non-minor and thus recordable includes any case that results in
restriction of work or motion(2) or transfer to another job.
Congress clearly identified restricted work activity and job transfer as
indicators of injury and illness severity. In
the years since OSHA has been enforcing the recordkeeping rule, however,
there has been considerable misunderstanding of the meaning of the term
"restricted work," and, as a result, the recording of these cases
has often been inconsistent. The Keystone Report (Ex. 5), which summarized
the recommendations of OSHA stakeholders on ways to improve the OSHA
recordkeeping system, noted that restricted work was perhaps the least
understood of the elements of the system. This
section of the Summary and Explanation first discusses the former
recordkeeping system's interpretation of the term restricted work, describes
how the proposed rule attempted to revise that interpretation, and then
summarizes and responds to the comments OSHA received on the proposed
approach to the recording of work restriction and job transfer cases.
Finally, this section explains the final rule's restricted work and job
transfer requirements and OSHA's reasons for adopting them. The
Former Rule The
former recordkeeping rule did not include a definition of restricted work or
job transfer; instead, the definition of these terms evolved on the basis of
interpretations in the BLS Guidelines (Ex. 2, p. 48). The Guidelines
stated that restricted work cases were those cases "where, because of
injury or illness, (1) the employee was assigned to another job on a
temporary basis; or (2) the employee worked at a permanent job less than full
time; or (3) the employee worked at his or her permanently assigned job but
could not perform all the duties connected with it." The key concepts in
this interpretation were that work was to be considered restricted when an
employee experienced a work-related injury or illness and was then unable, as
a result of that injury or illness, to work as many hours as he or she would
have been able to work before the incident, or was unable to perform all the
duties formerly connected with that employee's job. "All duties"
were interpreted by OSHA as including any work activity the employee would
have performed over the course of a year on the job. OSHA's
experience with recordkeeping under the former system indicated that
employers had difficulty with the restricted work concept. They questioned
the need for keeping a tally of restricted work cases, disagreed with the
"less than full time" concept, or were unsure about the meaning of
"all the duties connected with [the job]." (In OSHA's experience,
employers have not generally had difficulty understanding the concept of
temporary job transfer, which are treated in the same way as restricted work
cases for recordkeeping purposes. The following discussion thus focuses on
restricted work issues.) The changes OSHA proposed to make to the work
restriction concept (61 FR 4033) were intended to address these employer
concerns. The
Proposed Rule The
proposal would have changed restricted work recordkeeping practices markedly.
For example, the proposal would have required employers to acknowledge that
the case involved restricted work by placing a check in the restricted work
column on the Log but would no longer have required them to count the number
of restricted work days associated with a particular case. At the time of the
proposal, OSHA believed that dropping the requirement to count restricted
days was appropriate because the Agency lacked data showing that restricted
work day counts were being used by employers in their safety and health
programs. In addition, the proposal would have limited the work activities to
be considered by the employer in determining whether the injured or ill worker
was on restricted work. Under the former rule, employers had to consider
whether an injured or ill employee was able to perform "all the
duties" normally connected with his or her job when deciding if the
worker's job was restricted; OSHA interpreted "all the duties" to
include any work activity the employee performed at any time within a year.
Under the proposal, the duties that the employer would have been required to
consider were narrowed to include only (1) those work activities the employee
was engaged in at the time of injury or illness onset, or (2) those
activities the employee would have been expected to perform on that day (61
FR 4059). OSHA also requested comment in the proposal on the appropriateness
of limiting the activities to be considered and on other definitions of work
activities that should be considered, e.g., would it be appropriate
not to consider an employee to be on restricted work if he or she is able to
perform any of his or her former job activities? (61 FR 4059). Comments
on the Proposed Rule's Restricted Work and Job Transfer Provisions The
comments OSHA received on these provisions were extensive. Commenters offered
a wide variety of suggestions, including that OSHA eliminate restricted work
activity cases from the recordkeeping system altogether, that the proposed
definition of restricted work activity be changed, that the proposed approach
be rejected, that it be adopted, and many other recommendations. These
comments are grouped under topic headings and are discussed below. Eliminate
the Recording of Restricted Work Cases Several
commenters recommended that OSHA completely eliminate the recording of
restricted work cases because, in the opinion of these commenters, the
concept confused employers, created disincentives to providing light duty
work or return-to-work programs, and provided no useful information (see, e.g.,
Exs. 15: 119, 203, 235, 259, 336, 414, 427). For example, the American Bakers
Association said, "We believe that the concept and definitions of
'restricted work activity' should be eliminated. That term and its proposed
definition is so ambiguous as to be unworkable, and information gleaned from
that terminology would have little reliability or usefulness" (Ex. 15:
427). The
National Grain and Feed Association agreed, arguing that the recording of
restricted work cases should be eliminated on the following grounds: [w]e
agree with the conclusion of the Keystone Report that "the recording of
restricted work is perhaps the least understood and least accepted concept in
the recordkeeping system." We disagree with OSHA, however, that the
concept of restricted work is meaningful. For example, there is a wide range
of restrictions that may be placed on an injured employee's activity after
returning to work depending on the nature of the injury (e.g., the
range of work possible for an employee who has experienced a slight sprain
versus an employee with a broken bone). Additionally, the concept of
restricted work is greatly dependent on individual employee motivation and
job description. * * * Importantly, we believe the concepts embodied in the
proposed restricted work definition run counter to modern work practices that
encourage workers to return to productive work at the worksite. Workers who
have experienced minor injuries on the job can return to productive work
under employer "return-to-work" programs. For this reason, the
concept of restricted work is arbitrary and ultimately of little use to
either evaluating the effectiveness of an employer's safety and health programs
or determining the exposure of workers to a hazard at a specific worksite.
We, therefore, recommend that the Agency delete the category of restricted
work injuries from the proposed changes to 29 CFR 1904. Removal of this
section will simplify the recordkeeping system and make it more "user
friendly." We support deletion of this category of injury because we
think it will make the system more complex and is inconsistent with current
practices of returning employees back to productive work at the earliest date
(Ex. 15: 119). Revise
the Proposed Definition of a Restricted Work Case Most
of the remaining comments recommended either that the definition of
restricted work in the final rule be revised to include a more inclusive set
of job activities or functions or a less inclusive set. For example, the
Small Business Administration (Ex. 51) was concerned that: [t]he
new definition for classifying "restricted work activity" could
increase the number of cases that would be subject to this standard, and
subsequently, classified as a recordable incident. Small businesses would
face increased recordkeeping. Under the proposed definition, a case would be
determined as a "restricted work activity" if the employee cannot
perform what he or she was doing at the time of the illness or injury, or he
or she could not perform the activities scheduled for that day. While this
would be a very simple method, it would encompass more recordable incidents.
Many workers have a myriad of tasks associated with their job. If an employee
can return to work and perform functions within their job description, this
should not be considered "restricted work activity". * * * Several
commenters recommended that OSHA rely on a definition of restricted work that
would focus on "non productive work" and exclude the recording of
any case where the employee was still productive (see, e.g., Exs. 15:
9, 45, 46, 67, 80, 89, 247, 437). For example, Countrymark Cooperative, Inc.
(Ex. 15: 9) stated: [w]e
disagree with a portion of the definition for restricted work activity. We
agree that this should include injuries or illnesses where the worker is not
capable of performing at full capacity for a full shift. However, by
addressing the task that they were engaged in at the time of the injury will
create problems. Most employees today have numerous assignments and
responsibilities. They move from one task to another during a given day and
during a given week. What they are doing at the time they are injured may not
be the assignment for the next day or the next week. In these cases, they may
be back at work in a fully productive role, but not doing the same task as
when they were hurt. If they are performing a fully productive role within
the same job description, but cannot perform the role of the job they were
doing at the time, they should not be penalized. In many cases, this job task
may not be active at the time they return. * * * It should be very clear that
the ability to return an employee to a productive role (whether 50% or 100%)
is extremely important to any "Return-to-Work" Program. If that
person is returned to work and is performing at full capacity in a given task
within their job description, this should not be recorded unless it meets
other criteria such as medical treatment. If we return to the days of
recording these and penalizing the employer, they may be inclined to return
to the days of only allowing employees to return to work when they are 100%
in all given tasks within their job description. If this occurs, we all lose.
* * * We do agree that any time an employee is returned to work and is
restricted to only perform certain jobs, can only return for a limited
duration, or must be reassigned to another task, this should be recorded as a
restricted work case (Ex. 15: 9). Others
recommended that OSHA adopt the Keystone Report's definition of restricted
work (see, e.g., Exs. 15: 123, 129, 145, 225, 359, 379, 418). For
example, the National Safety Council recommended: [t]he
concept of restricted work activity as described on page 4046 [of the Federal
Register] is one with which the Council concurs, but the specific wording
in proposed section 1904.3 is less clear. The colon following the opening
clause of the definition "at full capacity for a full shift:" seems
to mean that the employee must be able to perform the task during which
he/she was injured and the other tasks he/she performed or would have
performed that day not only for the normal frequency or duration, but
"at full capacity for a full shift." For example, if the employee
were required to open a valve at the start of a shift and close it at the end
of the shift, the current wording seems to say that if the employee could not
spend the entire shift opening and closing the valve, then his/her work
activity is restricted. * * * The Council also believes that the concept of
restricted work activity as formulated by the Keystone Report is appropriate
in that it represents a consensus among the various stakeholder groups. For
this reason, we also recommend that the task limitations refer to the week's
activities rather than the day's activities (Ex. 15: 359). The
Union of Needletrades, Industrial and Textile Employees (UNITE) agreed with
the National Safety Council that a different time period should be used in
determining what job activities to consider. UNITE suggested that OSHA use
the employee's monthly, rather than daily or weekly, duties to define
restricted work activity (Ex. 15: 380). A
few commenters expressed concern that use of the proposed restricted work
definition could lead employers to include unusual, extraordinary or rarely
performed duties in the "work activities" to be considered when
determining whether a case was a restricted work case (see, e.g., Exs.
15: 80, 247). For example, the Arizona Public Service Company said: [d]etermining
restricted duty days should remain as it currently is in the Guidelines. The
restriction should focus on the ability of the employee to perform all or any
part of his or her normal job duties. Focusing on what specifically they were
doing at the time of injury could incorrectly base this determination on an
activity that is performed rarely. Also, focusing on what they were scheduled
to do for that week would not be useful for those whose schedules can change
daily (Ex. 15: 247). Adopt
the Americans With Disabilities Act Definition of Essential Duties The
Laboratory Corporation of America's comment (Ex. 15: 127) was typical of
those of several commenters who suggested that OSHA use the concept of
essential job duties that is also used for the administration of the
Americans with Disabilities Act (ADA) (see, e.g., Exs. 15: 127, 136,
137, 141, 224, 266, 278, 431): [t]he
definition used by the Americans with Disability Act (ADA) would be very
useful here. That definition indicates that restricted work exists if an
employee is unable to perform the essential functions of his/her job. Since
these essential functions are identified in the employee's job description,
the employer would have a consistent "yardstick" with which to make
this determination for each employee. Adoption
of the Proposed Approach Will Lead to Underreporting Some
commenters, such as the AFL-CIO, opposed the proposed approach to restricted
work on the grounds that it would result in underreporting: [w]e
believe this proposed provision would entice employers to manipulate records
and lead to further under-reporting. We strongly suggest that the Agency
adopt the Keystone Report recommendation of restricted work which requires an
employer to record if the employee is (1) unable to perform the task he or
she was engaged in at the time of injury or onset of illness (task includes
all facets of the assignment the employee was to perform); or (2) unable to
perform any activity that he or she would have performed during the week (Ex.
15: 418). Other
commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For example,
the United Brotherhood of Carpenters (UBC) Health & Safety Fund of North
America argued in favor of a broader definition to avoid this problem: [t]he
majority of workers represented by the UBC, such as carpenters and
millwrights, routinely perform a wide variety of tasks during their normal
workdays in either construction or industrial settings. Therefore, OSHA
should not limit the classification of "restricted work activity"
to either "the task he or she was engaged in at the time of the
injury" or his or her daily work activity (daily work activity includes
all assignments the employee was expected to perform on the day of the injury
or onset of illness)" as proposed. The UBC feels that the current
proposal would allow for manipulation of the records and will lead to serious
under reporting. Many workplaces have armies of "walking wounded"
rather than reporting lost or restricted work activity. OSHA should at the
very least adopt the position of the Keystone Report which recommended that
restricted work activity should be recorded if the employee is "(1)
unable to perform the task he or she was engaged in at the time of the injury
or onset of illness, or (2) unable to perform any activity that he or she
would have performed during the week." The UBC believes that the best
definition of restricted work activity would be any illness or injury which
inhibits, interferes with, or prevents a worker from performing any or all of
the functions considered to be a normal part of his or her trade or
occupation as defined in the applicable job description (Ex. 20). Do
Not Count Incidents Involving Only One or a Few Days as Restricted Work A
number of commenters recommended that restricted work activity involving only
the day of injury/illness onset should not trigger an OSHA recordable case
(see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 364, 374, 391).
Typical of these comments is one from the Society of the Plastics Industry,
Inc.: [e]mployers
have had problems with OSHA's definition of restricted work activity because
OSHA's interpretation that having any work restriction, even one which lasts
only for the remainder of the shift and which imposes no significant
limitations on the employee's ability to perform his or her job, makes a case
recordable. OSHA should adopt the administratively simple and common-sense
rule that restricted work activity on the day of the case report does not
make the case recordable. . . . The definition of "restricted work
activity" should be clarified to state that the criteria apply only to
days following the day of injury or onset of the illness. An employee's
inability to work a full shift on the actual date of injury or onset of
illness should not require recording as a restricted work case. As noted
above, because OSHA's interpretation that having any work restriction, even
one which lasts only for the remainder of the shift and which imposes no
significant limitations on the employee's ability to perform his or her job,
makes a case recordable, many non-serious, non-disabling cases are now
recorded. Cases which do not otherwise meet the recordability criteria should
not be recordable. Therefore, as recommended above, OSHA should eliminate the
current requirement to record cases in which restricted work activity occurs
only on the day of the case report (Ex. 15: 364). The
Kodak Company urged OSHA not to count cases involving restrictions lasting
only for three days as restricted work cases on the grounds that such cases
are "minor": "Restricted work activity allows employers and
employees to remain at work. This is a win-win situation for both. Kodak
suggests restricted work activity be counted only if the restriction lasts
longer than 3 working days. Hence, only serious cases would be recorded"
(Ex. 15: 322). Adopt
the Proposed Approach A
large number of commenters supported OSHA's proposed definition, however
(see, e.g., Exs. 27, 15: 26, 61, 70, 133, 159, 171, 185, 199, 204,
242, 263, 269, 270, 272, 283, 303, 305, 307, 317, 318, 324, 334, 347, 351,
373, 375, 377, 378, 384, 390, 392, 405, 409, 413, 425, 430). Typical of these
were comments from the New Jersey Department of Labor (Ex. 15: 70), which
commented: [p]roviding
a clear definition of what constitutes restricted work and an item to
indicate that an injured employee has been shifted to restricted work
activity should improve the accuracy and completeness of case reporting.
Identifying the actual number of cases in which employees are shifted to
alternate work, which are thought to be under reported, and adding the date
when the employee returned to his/her usual work will help to assess the
impact of these incidents. The
American Petroleum Institute, which believed that the proposed definition
would be easy to interpret and would therefore improve recording consistency,
stated: "API strongly supports OSHA's proposed definition of restricted
activity. Because it is much more logical and easy to understand than the
current definition, API believes it will lead to greater consistency"
(Ex. 15: 375). Use
Different Triggers Than Those Proposed The
Commonwealth Edison Company recommended that restricted work be defined only
in terms of the hours the employee is able to work, not the functions the
employee is able to perform: [C]omEd
disagrees with OSHA on its definition of "restricted work
activity". We propose that OSHA consider that restricted work activity
simply state "Restricted work activity means the worker, due to his or
her injury or illness, is unable to work a full shift." OSHA's proposed
definition of restricted work activity is even more confusing than the
current one. ComEd's proposed definition will allow quantifiable, direct cost
tracking for this category of injury or illness. Workers will more than
likely have some kind of meaningful work waiting for them if the injury is
not disabling. If he or she is able to work the required normal shift hours,
don't count the case as restricted. If they miss the entire shift, count is
as a day away from work. If they miss part of the shift, count it as
restricted (Ex. 15: 277). Two
commenters suggested that a case should only be considered restricted when it
involves both medical treatment and work restrictions (Exs. 15: 9, 348). For
example, the E. I. du Pont de Nemours & Company (DuPont) said that the "Restricted
Work Activity" definition is a definite improvement over the current
one. Suggest making treatment AND restriction the criteria. An insignificant
injury can result in being told not to climb ladders. This does not negate
the ability to do the job; it just limits the job to levels where ladder
climbing is not required. * * * Restricted work activity is more dependent on
timing and job than on injury severity. It doesn't necessarily focus on
hazardous conditions. Certainly the definition in the proposed guidelines is
far more specific and appropriate than the current one. We suggest
consideration be given to dropping the Restricted category where medical
treatment is not also given. For example, a slight muscle strain will result
in advice not to climb ladders. The case would be in the restricted category
although the treatment, if any, would be at the first aid level. Injury
severity is the equivalent of a cut finger" (Ex. 15: 348). Other
comments sought a broader, more inclusive definition of restricted work, one
that relies on job descriptions (see, e.g., Exs. 15: 41, 62, 198,
426). For example, Robert L. Rowan, Jr. stated: [t]he
definition of "restricted work activity" also concerns me and I
believe it is unsuitable. The definition refers to an employee who is not
capable of performing at full capacity for a full shift the "task"
that he or she was engaged in at the time of the injury or onset of illness.
The definition should include "any and all tasks" within the
employee's clearly defined job description" (Ex. 15: 62). The
Maine Department of Labor, however, preferred the former rule's
interpretation, with some modifications: [w]e
agree that there should be no mention of "normal" duties in the
definition. Include: temporary transfer to a position or department other
than the position or department the worker was working at when he/she was
injured. Some of these can be detected on payroll records; only being able to
work part of their workday. Time forms could raise suspicion here; a health
care provider puts the person on written restrictions unless the employer can
show that the restrictions listed do not impact the employee's ability to do
his or her scheduled job during the time period of the restrictions. Keep a
copy of the restrictions in the file. The doctor's name on the OSHA 301
serves as another possible check (Ex. 15:41). Miscellaneous
Comments and Questions There
were also a variety of miscellaneous comments and questions about the
proposed approach to the recording of restricted work cases. For example, Bob
Evans Farms suggested that: [w]hen
considering this proposal, OSHA needs to keep in mind the special nature of
the restaurant business. It is not uncommon for a cook to cut himself or
herself, apply a Band-Aid, and then temporarily be reassigned to janitorial
work for a day or two to keep the cut dry while it heals. This could be
considered work duty modification and would then need to be reported to OSHA.
As you can see, this type of minor occurrence would clog the system with
needless paper (Exs. 15: 3, 4, 5, 6). Phibro-Tech,
Inc. offered this comment: [a]
factory employee who normally performs heavy labor may be assigned office
work as a restricted work activity, and may not actually be contributing
anything meaningful to the job. Will employers be required to limit what is
considered "light duty" tasks? Will there be directives as to when
an employee should really be off work or when he can be on "light
duty"? Occupational physicians all have different opinions as to when an
employee can return for light or full duty. It would be helpful to have more
direction on this issue so employees aren't sent back to work too soon or
kept off on lost time too long (Ex. 15: 35). The
law firm of Constangy, Brooks & Smith, LLC, asked, "[w]ould a
restriction of piece rate or production rate be considered restricted duty
under the proposed definition even though it is not considered restricted
duty under the present guidelines?" (Ex. 15: 428). Miller Brewing Company
added, "[w]ould also recommend that OSHA attempt to clarify whether a
treating physician's [non-specific] return to work instructions such as
"8 hours only," "self restrict as needed," and "work
at your own pace" will constitute restricted work activity under the
proposed recordkeeping rule" (Ex. 15: 442). The
Pacific Maritime Association stated: This
is another example where the ILWU/PMA workforce does not fit into the
proposed recordkeeping system. The regulation as written pertains to
employers who assign their employees to work tasks. As previously mentioned,
in our industry it is the employee who selects the job they will perform.
This dispatch system, or job selection process, presents many problems when
the maritime industry is required to conform to requirements established for
traditional employee/employer relationships found in general industry. At the
present time there is no method available to determine why an individual
longshoreman selects a specific job. Therefore, the requirement to identify,
track, and record "restricted work activity" may be impossible to
accomplish [in the maritime industry] (Ex. 15: 95). Preventive
Job Transfers Several
commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged OSHA to make
some accommodation for "preventive transfers" and medical removals.
Many transfers and removals of this nature are related to work-related
musculoskeletal disorders and are used to prevent minor musculoskeletal
soreness from becoming worse. The following comments are representative of
the views of these commenters. The Ogletree, Deakins, Nash, Smoak &
Stewart (ODNSS) coalition commented: [t]his
definition [the proposed definition of restricted work] is overly broad,
penalizes employers who have a light duty program in place, and fails to take
into account that (1) today's employees increasingly are cross trained and
perform varied tasks, and (2) the ability of an employee to perform
alternative meaningful work mitigates the seriousness of the inability to
perform work in the two categories set out in the definition as proposed. The
ODNSS Coalition recommends curing these defects by adding the following
proviso to the proposed definition: "The case should be recorded as a
restricted work case UNLESS the restrictive work activity is undertaken to
relieve minor soreness experienced by a newly hired or transferred employee
during a break-in phase to prevent the soreness from worsening, or the
employee otherwise is able to perform other existing full-time duties."
The appropriate nature of the recommended proviso is underscored by a
baseball analogy where the right fielder and the center fielder change
positions. They both continue to play on the same team and make substantial
contributions, but the strain on the new right fielder is less because he
doesn't have as much ground to cover (Ex. 15: 406). The
National Association of Manufacturers (NAM) summed up its views as follows: [a]
preventive or prophylactic measure such as medical removal (as opposed to a
restorative or curative measure) is not and should not be deemed medical
treatment, a job transfer or restricted activity for purposes of
recordability, in the absence of a substantial impairment of a bodily
function (Ex. 25). Although
Organization Resource Counselors (ORC) generally endorsed the proposed
approach to the treatment of restricted work cases, it did express concern
about how medical removal cases would be treated under the proposed
definition: [t]he
proposed definition of restricted work is a significant improvement over the
current [former] one, which was considered by many employers to be unfair and
confusing. It is no secret that many employers did not understand the current
restricted work rules and, as a result, did not follow them consistently.
Additionally, the [proposed] elimination of the count of restricted workdays
is appropriate and is a recognition by OSHA that the recording of this count
is of little value to either the Agency or employers in program evaluation or
program development. * * * Additionally, requirements for the recording of
either voluntary or mandatory medical removals where no additional symptoms
are present are examples of appropriate action taken by employers to prevent
harm to employees and not of a recordable injury or illness. * * *" (Ex.
15: 358). Final
Rule's Restricted Work and Job Transfer Provisions, and OSHA's Reasons for
Adopting Them Paragraph
1904.7(b)(4) contains the restricted work and job transfer provisions of the
final rule. These provisions clarify the definition of restricted work in
light of the comments received and continue, with a few exceptions, most of
the former rule's requirements with regard to these kinds of cases. OSHA
finds, based on a review of the record, that these provisions of the final
rule will increase awareness among employers of the importance of recording
restricted work activity and job transfer cases and make the recordkeeping
system more accurate and the process more efficient. OSHA
believes that it is even more important today than formerly that the
definition of restricted work included in the final rule be clear and widely
understood, because employers have recently been relying on restricted work
(or "light duty") with increasing frequency, largely in an effort
to encourage injured or ill employees to return to work as soon as possible.
According to BLS data, this category of cases has grown by nearly 70% in the
last six years. In 1992, for example, 9% of all injuries and illnesses (or a
total of 622,300 cases) recorded as lost workday cases were classified in
this way solely because of restricted work days, while in 1998, nearly 18% of
all injury and illness cases (or a total of 1,050,200 cases) were recorded as
lost workday cases only because they involved restricted work [BLS Press
Release 99-358, 12-16-99). The return-to-work programs increasingly being
relied on by employers (often at the recommendation of their workers'
compensation insurers) are designed to prevent exacerbation of, or to allow
recuperation from, the injury or illness, rehabilitate employees more
effectively, reintegrate injured or ill workers into the workplace more
rapidly, limit workers' compensation costs, and retain productive workers. In
addition, many employees are eager to accept restricted work when it is
available and prefer returning to work to recuperating at home. The
final rule's requirements in paragraph 1904.10(b)(4) of the final rule state: (4)
How do I record a work-related injury or illness that involves restricted
work or job transfer? When
an injury or illness involves restricted work or job transfer but does not
involve death or days away from work, you must record the injury or illness
on the OSHA 300 Log by placing a check mark in the space for job transfer or
restricted work and entering the number of restricted or transferred days in
the restricted work column. (i)
How do I decide if the injury or illness resulted in restricted work? Restricted
work occurs when, as the result of a work-related injury or illness: (A)
You keep the employee from performing one or more of the routine functions of
his or her job, or from working the full workday that he or she would
otherwise have been scheduled to work; or (B)
A physician or other licensed health care professional recommends that the
employee not perform one or more of the routine functions of his or her job,
or not work the full workday that he or she would otherwise have been
scheduled to work. (ii)
What is meant by "routine functions"? For
recordkeeping purposes, an employee's routine functions are those work
activities the employee regularly performs at least once per week. (iii)
Do I have to record restricted work or job transfer if it applies only to the
day on which the injury occurred or the illness began? No.
You do not have to record restricted work or job transfers if you, or the
physician or other licensed health care professional, impose the restriction
or transfer only for the day on which the injury occurred or the illness
began. (iv)
If you or a physician or other licensed health care professional recommends a
work restriction, is the injury or illness automatically recordable as a
"restricted work" case? No.
A recommended work restriction is recordable only if it affects one or more
of the employee's routine job functions. To determine whether this is the case,
you must evaluate the restriction in light of the routine functions of the
injured or ill employee's job. If the restriction from you or the physician
or other licensed health care professional keeps the employee from performing
one or more of his or her routine job functions, or from working the full
workday the injured or ill employee would otherwise have worked, the
employee's work has been restricted and you must record the case. (v)
How do I record a case where the worker works only for a partial work shift
because of a work-related injury or illness? A
partial day of work is recorded as a day of job transfer or restriction for
recordkeeping purposes, except for the day on which the injury occurred or
the illness began. (vi)
If the injured or ill worker produces fewer goods or services than he or she
would have produced prior to the injury or illness but otherwise performs all
of the activities of his or her work, is the case considered a restricted
work case? No.
The case is considered restricted work only if the worker does not perform
all of the routine functions of his or her job or does not work the full
shift that he or she would otherwise have worked. (vii)
How do I handle vague restrictions from a physician or other licensed health
care professional, such as that the employee engage only in "light
duty" or "take it easy for a week"? If
you are not clear about a physician or other licensed health care
professional's recommendation, you may ask that person whether the employee
can perform all of his or her routine job functions and work all of his or
her normally assigned work shift. If the answer to both of these questions is
"Yes," then the case does not involve a work restriction and does
not have to be recorded as such. If the answer to one or both of these
questions is "No," the case involves restricted work and must be
recorded as a restricted work case. If you are unable to obtain this
additional information from the physician or other licensed health care
professional who recommended the restriction, record the injury or illness as
a case involving job transfer or restricted work. (viii)
What do I do if a physician or other licensed health care professional
recommends a job restriction meeting OSHA's definition but the employee does
all of his or her routine job functions anyway? You
must record the injury or illness on the OSHA 300 Log as a restricted work
case. If a physician or other licensed health care professional recommends a
job restriction, you should ensure that the employee complies with that
restriction. If you receive recommendations from two or more physicians or
other licensed health care providers, you may make a decision as to which
recommendation is the most authoritative, and record the case based upon that
recommendation. The
concept of restricted work activity in the final rule falls somewhere between
the commenters' broadest and narrowest definitions of the work activities
that should be considered in determining whether a particular case involves
work restriction. The final rule's concept of restricted work is based both
on the type of work activities the injured or ill worker is able to perform
and the length of time the employee is able to perform these activities. The
term "routine functions of the job" in paragraphs 1904.7(b)(4)(i)
and (b)(4)(ii) clarifies that OSHA considers an employee who is unable,
because of a work-related injury or illness, to perform the job activities he
or she usually performs to be restricted in the work he or she may perform.
Use of the term "routine functions of the job" should eliminate the
concern of some commenters who read the proposed definition as meaning that
an employee had to be able to perform every possible work activity, including
those that are highly unusual or performed only very rarely, in order for the
employer to avoid recording the case as a restricted work case (see, e.g.,
Exs. 15: 80, 247). In other words, OSHA agrees that it makes little sense to
consider an employee who is prevented by an injury or illness from performing
a particular job function he or she never or rarely performed to be
restricted (see, e.g., Exs. 15: 80, 247). For example, OSHA finds
that, for the purposes of recordkeeping, an activity that is performed only
once per month is not performed "regularly." This approach is
consistent with OSHA interpretations under the former rule. Limiting the
definition to "essential functions," the ADA term recommended by
several commenters (see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266,
278, 431), would be inappropriate, because OSHA needs information on all
restricted work cases, not just those that interfere with the essential
functions of the job (29 U.S.C. 657(c)(2)). On
the other hand, OSHA agrees with those commenters who argued that the
proposed definition, to limit the definition of restricted activity to the
specific functions or tasks the employee was engaged in on the day of injury
or onset of illness would be unsatisfactory, because doing so could fail to
capture activities that an employee regularly performs (see, e.g.,
Exs. 20; 15: 17, 129, 380, 418). In the final rule, OSHA has decided that
defining restricted work as work that an employee would regularly have
performed at least once per week is appropriate, i.e., OSHA believes that the
range of activities captured by this interval of time will generally reflect
the range of an employee's usual work activities. Activities performed less
frequently than once per week reflect more uncommon work activities that are
not considered routine duties for the purposes of this rule. However, the
final rule does not rely on the duties the employee actually performed during
the week when he or she was injured or became ill. Thus, even if an employee
did not perform the activity within the last week, but usually performs the
activity once a week, the activity will be included. OSHA believes that this
change in definition will foster greater acceptance of the concept of
restricted work among employers and employees because of its common sense
approach. Use
of the term "partial work shift" in paragraph 1904.7(b)(4)(v)
covers restrictions on the amount of time an employee is permitted to work
because of the injury or illness. This interpretation of restricted work was
not generally disputed by commenters, although some argued that the
restriction on the hours worked should last for a specific number of days
before the case becomes recordable as a restricted work case (see, e.g.,
Exs. 15: 19, 44, 146, 154, 156, 198, 364, 374, 391). The
final rule's restricted work provisions also clarify that work restriction
must be imposed by the employer or be recommended by a health care
professional before the case is recordable. Only the employer has the
ultimate authority to restrict an employee's work, so the definition is clear
that, although a health care professional may recommend the restriction, the
employer makes the final determination of whether or not the health care
professional's recommended restriction involves the employee's routine
functions. Restricted work assignments may involve several steps: an HCP's
recommendation, or employer's determination to restrict the employee's work,
the employers analysis of jobs to determine whether a suitable job is
available, and assignment of the employee to that job. All such restricted work
cases are recordable, even if the health care professional allows some
discretion in defining the type or duration of the restriction, an occurrence
noted by one commenter (Ex. 15:442). However, the final rule's provisions
make it clear that the employee is not the person making the determination
about being placed on restricted work, as one commenter (Ex. 15: 97) feared. A
number of commenters suggested that OSHA cease to require the recording of
restricted work cases entirely (see, e.g., Exs. 15: 119, 427).
However, the Congress has directed that the recordkeeping system capture data
on non-minor work-related injuries and illnesses and specifically on
restricted work cases, both so that the national statistics on such injuries
and illnesses will be complete and so that links between the causes and
contributing factors to such injuries and illnesses will be identified (29
U.S.C. 651(b)). Days away and restricted work/job transfer cases together
constitute two of the most important kinds of job-related injuries and
illnesses, and it would be inappropriate not to record these serious cases.
OSHA also cannot narrow the definition of restricted work to those cases
where the employee is at work but cannot do productive work, as several
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because
the Congress clearly intended that workers whose work-related injuries and
illnesses were so severe as to prevent them from doing their former work or
from working for a full shift had experienced an injury or illness that was
non-minor and thus worthy of being recorded. OSHA does not believe that
requiring employers to record such injuries and illnesses as restricted work
cases will in any way discourage the use of restricted work or return-to-work
programs, and the marked shift in the number of restricted work cases
reported to the BLS in the last few years bears this out. It would also not
be appropriate for OSHA to require that employers only record as restricted
work cases those cases in which the injured or ill worker requires medical
treatment and is placed on restricted work, as some commenters
suggested (see, e.g., Exs. 15: 9, 348). The OSH Act clearly requires
the recording of all work-related cases that require either medical treatment
or restricted work. Under
the final rule, employers are not required to record a case as a restricted
work case if the restriction is imposed on the employee only for the day of
the injury or onset of illness. OSHA thus agrees with a number of commenters
(see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 364, 374, 391) that
restricted activity only on the day the injury occurred or the illness began
does not justify recording. This represents a change in the treatment of
restricted work cases from OSHA's practice under the former rule. OSHA has
made this change to bring the recording of restricted work cases into line
with that for days away cases: under the final rule, employers are not
required to record as days away or restricted work cases those injuries and
illnesses that result in time away or time on restriction or job transfer
lasting only for the day of injury of illness onset. Several
commenters recommended that cases involving medical removal under the lead or
cadmium standards or cases involving "voluntary" preventive
actions, such as cases involving job transfer or restricted work activity,
not be considered recordable under the final rule; these participants argued
that requiring employers to record voluntary transfers or removals would
create a disincentive for employers to take these protective actions (see, e.g.,
Exs. 25, 15: 69, 156, 358, 406). Under the final rule (see section 1904.9),
mandated removals made in accordance with an OSHA health standard must be
recorded either as days away from work or as days of restricted work
activity, depending on the specific action an employer takes. Since these
actions are mandated, no disincentive to record is created by this
recordkeeping rule. Some
commenters, however, urged OSHA to make an exception from the recording requirements
for cases where the employer voluntarily, or for preventive purposes,
temporarily transfers an employee to another job or restricts an employee's
work activities. OSHA does not believe that this concept is relevant to the
recordkeeping rule, for the following reasons. Transfers or restrictions
taken before the employee has experienced an injury or illness do not
meet the first recording requirement of the recordkeeping rule, i.e., that a
work-related injury or illness must have occurred for recording to be
considered at all. A truly preventive medical treatment, for example, would
be a tetanus vaccination administered routinely to an outdoor worker.
However, transfers or restrictions whose purpose is to allow an employee to
recover from an injury or illness as well as to keep the injury or illness
from becoming worse are recordable because they involve restriction or work
transfer caused by the injury or illness. All restricted work cases and job
transfer cases that result from an injury or illness that is work-related are
recordable on the employer's Log. As
the regulatory text for paragraph (b)(4) makes clear, the final rule's
requirements for the recording of restricted work cases are similar in many
ways to those pertaining to restricted work under the former rule. First,
like the former rule, the final rule only requires employers to record as
restricted work cases those cases in which restrictions are imposed or
recommended as a result of a work-related injury or illness. A work
restriction that is made for another reason, such as to meet reduced
production demands, is not a recordable restricted work case. For example, an
employer might "restrict" employees from entering the area in which
a toxic chemical spill has occurred or make an accommodation for an employee
who is disabled as a result of a non-work-related injury or illness. These
cases would not be recordable as restricted work cases because they are not
associated with a work-related injury or illness. However, if an employee has
a work-related injury or illness, and that employee's work is restricted by
the employer to prevent exacerbation of, or to allow recuperation from, that
injury or illness, the case is recordable as a restricted work case because
the restriction was necessitated by the work-related injury or illness. In
some cases, there may be more than one reason for imposing or recommending a
work restriction, e.g., to prevent an injury or illness from becoming
worse or to prevent entry into a contaminated area. In such cases, if the
employee's work-related illness or injury played any role in the
restriction, OSHA considers the case to be a restricted work case. Second,
for the definition of restricted work to apply, the work restriction must be
decided on by the employer, based on his or her best judgment or on the
recommendation of a physician or other licensed health care professional. If
a work restriction is not followed or implemented by the employee, the injury
or illness must nevertheless be recorded on the Log as a restricted case.
This was also the case under the former rule. Third,
like the former rule, the final rule's definition of restricted work relies
on two components: whether the employee is able to perform the duties of his
or her pre-injury job, and whether the employee is able to perform those
duties for the same period of time as before. The
principal differences between the final and former rules' concept of
restricted work cases are these: (1) the final rule permits employers to cap
the total number of restricted work days for a particular case at 180 days,
while the former rule required all restricted days for a given case to be
recorded; (2) the final rule does not require employers to count the
restriction of an employee's duties on the day the injury occurred or the
illness began as restricted work, providing that the day the incident
occurred is the only day on which work is restricted; and (3) the final rule
defines work as restricted if the injured or ill employee is restricted from
performing any job activity the employee would have regularly performed at
least once per week before the injury or illness, while the former rule
counted work as restricted if the employee was restricted in performing any
activity he or she would have performed at least once per year. In
all other respects, the final rule continues to treat restricted work and job
transfer cases in the same manner as they were treated under the former rule,
including the counting of restricted days. Paragraph 1904.7(b)(4)(xi)
requires the employer to count restricted days using the same rules as those
for counting days away from work, using § 1904.7(b)(3)(i) to (viii), with one
exception. Like the former rule, the final rule allows the employer to stop
counting restricted days if the employee's job has been permanently modified
in a manner that eliminates the routine functions the employee has been
restricted from performing. Examples of permanent modifications would include
reassigning an employee with a respiratory allergy to a job where such
allergens are not present, or adding a mechanical assist to a job that
formerly required manual lifting. To make it clear that employers may stop
counting restricted days when a job has been permanently changed, but not to
eliminate the count of restricted work altogether, the rule makes it clear
that at least one restricted workday must be counted, even if the restriction
is imposed immediately. A discussion of the desirability of counting days of
restricted work and job transfer at all is included in the explanation for
the OSHA 300 form and the § 1904.29 requirements. The revisions to this
category of cases that have been made in the final rule reflect the views of
commenters, suggestions made by the Keystone report (Ex. 5), and OSHA's
experience in enforcing the former recordkeeping rule. Paragraph
1904.7(b)(5) Medical Treatment Beyond First Aid The
definitions of first aid and medical treatment have been central to the OSHA
recordkeeping scheme since 1971, when the Agency's first recordkeeping rule
was issued. Sections 8(c)(2) and 24(a) of the OSH Act specifically require
employers to record all injuries and illnesses other than those
"requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or transfer
to another job." Many injuries and illnesses sustained at work do not
result in death, loss of consciousness, days away from work or restricted
work or job transfer. Accordingly, the first aid and medical treatment
criteria may be the criteria most frequently evaluated by employers when
deciding whether a given work-related injury must be recorded. In
the past, OSHA has not interpreted the distinction made by the Act between
minor (i.e., first aid only) injuries and non-minor injuries as applying to
occupational illnesses, and employers have therefore been required to record
all occupational illnesses, regardless of severity. As a result of this final
rule, OSHA will now apply the same recordability criteria to both injuries
and illnesses (see the discussion of this issue in the Legal Authority
section of this preamble). The Agency believes that doing so will simplify
the decision-making process that employers carry out when determining which
work-related injuries and illnesses to record and will also result in more
complete data on occupational illness, because employers will know that they
must record these cases when they result in medical treatment beyond first
aid, regardless of whether or not a physician or other licensed health care
professional has made a diagnosis. The
former recordkeeping rule defined first aid as "any one-time treatment
and any follow-up visit for the purpose of observation, of minor scratches,
cuts, burns, splinters, and so forth, which do not ordinarily require medical
care." Medical treatment was formerly defined as "treatment
administered by a physician or by registered professional personnel under the
standing orders of a physician." To
help employers determine the recordability of a given injury, the Recordkeeping
Guidelines, issued by the Bureau of Labor Statistics (BLS) in 1986,
provided numerous examples of medical treatments and of first aid treatments
(Ex. 2). These examples were published as mutually exclusive lists, i.e., a
treatment listed as a medical treatment did not also appear on the first-aid
list. Thus, for example, a positive x-ray diagnosis (fractures, broken bones,
etc.) was included among the treatments generally considered medical
treatment, while a negative x-ray diagnosis (showing no fractures) was
generally considered first aid. Despite the guidance provided by the Guidelines,
OSHA continued to receive requests from employers for interpretations of the
recordability of specific cases, and a large number of letters of
interpretation addressing the distinction between first aid and medical
treatment have been issued. The following sections discuss the definitions of
medical treatment and first aid proposed by OSHA, the comments received in
response to the proposal, and the definition of medical treatment that OSHA
has decided to include in the final rule. In
the proposed rule, OSHA presented a simplified approach: to define as first
aid anything on a list of first aid treatments, and to define as medical
treatment any treatment not on that list. Specifically, medical treatment was
defined as "any medical cure or treatment beyond first aid" (61 FR
4059). The
proposal contained a comprehensive list of all treatments that would be
considered "first aid" regardless of the provider: (1)
Visit(s) to a health care provider limited to observation (2)
Diagnostic procedures, including the use of prescription medications solely
for diagnostic purposes (e.g. eye drops to dilate pupils) (3)
Use of nonprescription medications, including antiseptics (4)
Simple administration of oxygen (5)
Administration of tetanus or diphtheria shot(s) or booster(s) (6)
Cleaning, flushing or soaking wounds on skin surface (7)
Use of wound coverings such as bandages, gauze pads, etc. (8)
Use of any hot/cold therapy (e.g. compresses, soaking, whirlpools,
non-prescription skin creams/lotions for local relief, etc.) except for
musculoskeletal disorders (see Mandatory Appendix B to Part 1904) (9)
Use of any totally non-rigid, non-immobilizing means of support (e.g.
elastic bandages) (10)
Drilling of a nail to relieve pressure for subungual hematoma (11)
Use of eye patches (12)
Removal of foreign bodies not embedded in the eye if only irrigation or
removal with a cotton swab is required (13)
Removal of splinters or foreign material from areas other than the eyes by
irrigation, tweezers, cotton swabs or other simple means (61 FR 4059) OSHA
also solicited comment on three specific definitional questions: (A)
Should any treatments on the proposed first aid list be excluded and should
any treatments be added? (B)
Should a list of medical treatments also be provided? Which treatments? (C)
Should simple administration of oxygen be defined to exclude more severe
procedures such as Intermittent Positive Pressure Breathing (IPPB)? If so, how? OSHA
received many comments on the general approach taken in the proposal, i.e.,
that employers rely on a comprehensive list of first aid treatment and define
any treatment not on that list as medical treatment. The Agency also received
many comments on the individual items on the proposed first aid list. The
following discussion addresses comments on the general approach adopted in
the final rule and then deals with comments on specific items and OSHA's
responses to each issue. A
large number of commenters agreed with OSHA's proposal to rely on a finite
list of treatments considered first aid and to consider all other treatments
medical treatment (see, e.g., Exs. 15: 9, 13, 26, 27, 74, 76, 87, 95,
122, 127, 156, 163, 185, 188, 199, 204, 218, 242, 263, 269, 270, 283, 297,
324, 332, 338, 347, 357, 359, 377, 378, 385, 386, 387, 395, 397, 405, 407,
414, 434). Several commenters wanted no change to the proposal (see, e.g.,
Exs. 15: 26, 76, 204, 385, 378), while others agreed with the general
approach but stated that the first aid list should be more comprehensive
(see, e.g., Exs. 15: 199, 332, 338, 357, 386, 387). Commenters
supported the proposed approach for a variety of reasons. For example, some
stated that a finite list would improve the clarity of the definition, reduce
confusion for employers, and reduce inaccuracy in the data (see, e.g.,
Exs. 15: 87, 95, 122, 127, 163, 185, 188, 395, 338, 242, 270, 269, 263, 347,
377, 386). The statement of the American Iron and Steel Institute exemplified
these comments: Consistent
with its statutory mandate, OSHA's proposal would also require the recording
of all work-related injuries and illnesses that result in medical treatment
beyond first aid. The expanded and finite list of treatments that constitute
first aid would clarify the task of deciding what to record, because any
treatment that does not appear on this list will be considered a medical
treatment. (Ex. 15: 395) The
Ford Motor Company agreed, stating: Ford
supports that the definition of first aid be modified to consist of a
comprehensive list of treatments. Treatments not found on the first aid list
would be considered medical treatment for recordkeeping purposes. Assuming
that the list will be comprehensive, it will reduce confusion, lead to
consistent recordkeeping, and greatly simplify the decision making process
(Ex. 15: 347). Some
commenters stated that the proposed approach would be simpler for employers,
generate more consistent records, and facilitate better comparisons of injury
and illness data over time (see, e.g., Exs. 15: 13, 122, 127, 242,
270, 269, 263, 283, 297, 347, 359, 377, 405, 407). According to the Southern
Nuclear Operating Company: "Providing a comprehensive list of all
first-aid treatments will remove the current ambiguity in deciding if a case
involves first aid only or if it is medical treatment. This should provide
more consistent recordkeeping and allow for more meaningful comparisons of
accident histories" (Ex. 15: 242, p. 2). A
number of commenters, however, disagreed that defining first aid by listing
first aid treatments was appropriate (see, e.g., Exs. 15: 18, 63, 83,
87, 96, 119, 123, 129, 145, 159, 171, 173, 176, 182, 201, 225, 229, 247, 260,
262, 265, 272, 281, 303, 307, 308, 335, 337, 338, 341, 348, 349, 357, 364,
375, 380, 382, 389, 396, 401, 413, 418, 430, 434). Several of these
commenters argued that it would not be possible to list every first aid
treatment (see, e.g., Exs. 15: 225, 335, 337, 396, 430). Some
commenters stated that the proposed approach would not provide sufficient
clarity, would involve a definition of medical treatment that was overly
vague, and would not be helpful to employers without additional definitions
(see, e.g., Exs. 15: 159, 171, 176, 229, 281, 348, 357, 396). Another
group of commenters stated that the approach did not provide flexibility to
adapt to changing medical practice, and would not be capable of responding to
changes in technology (see, e.g., Exs. 15: 18, 63, 96, 335, 348). The
comments of the Dow Chemical Corporation are representative of these views: Dow
believes that OSHA should provide non-exhaustive lists for both first aid and
medical treatment, rather than defining one solely by the exclusion of the
other. Dow believes this suggested approach is necessary to take into account
that these lists cannot be comprehensive or all-inclusive as it is impossible
to list every possible contingency. Moreover, technology is constantly
changing and cannot be accounted for in a static list. For example, one can
now obtain Steri-Strips over the counter where previously it would have been
considered "medical treatment." Since exhaustive lists do not allow
the flexibility to take these technologies into account nor capture every
possible situation, much would still be left to supposition. By providing an
illustrative list for both first aid and medical treatment, OSHA would be
giving adequate guidance for the regulated community. Dow recommends OSHA
make this modification in the final rule. (Ex. 15: 335) A
number of commenters urged OSHA to use the definition of medical treatment as
a way to focus primarily on the seriousness of the injury or illness (see, e.g.,
Exs. 15: 147, 201, 308, 341, 375, 395, 418). For example, the American
Petroleum Institute remarked "* * * the fundamental issue is the seriousness
of the injury or illness, not the treatment" (Ex. 375-A, p. 7). The
Caterpillar Corporation provided lengthy comments on the definition of
medical treatment, including the following criticism of the proposed
approach: Insignificant
injuries for which medical treatment is provided do not provide valuable
information for safety and health analysis. This proposal attempts to
oversimplify the recordkeeping process which will result in many
insignificant injuries and illnesses being recorded because of the unnecessarily
restrictive definitions for first aid and medical treatment. The definition
and listing of first aid cannot be a comprehensive or exclusive listing and
definition. Medical treatment may be provided for insignificant injuries and
significant injuries may receive little or no medical treatment. The medical
treatment process and options are too complicated to be adequately described
by one list which makes the treatments mutually exclusive. OSHA should
continue the current practice with lists for both first aid and medical
treatment. Further, the treatments cannot be mutually exclusive since
treatment does not necessarily recognize the severity of the injury or
illness (Ex. 15: 201, p. 4). Some
commenters who disagreed with the proposed approach provided suggestions and
alternative definitions. A number of commenters suggested that OSHA keep its
former definitions of first aid and medical treatment (see, e.g., Exs.
15: 83, 119, 123, 129, 145, 225, 337, 380, 389, 418, 430). Several commenters
urged OSHA to update the former rule's definitions using the proposed rule's
listing of first aid treatments (see, e.g., Exs. 15: 83, 380, 418).
Other commenters urged OSHA not to change the definition in any way because
it would produce a break in the historical series of occupational injury and
illness data (see, e.g., Exs. 15: 123, 145, 389). Several
commenters made suggestions that they believed would introduce flexibility
into the proposed rule's first aid definition. The National Restaurant
Association suggested that OSHA add a "catchall" category to the
list to include "any similar type of treatment" (Ex. 15: 96, p. 5).
The General Electric Company urged that the following language be added:
"Other treatments may be considered first aid so long as they are recognized
as first aid actions and [are] not listed in the definition of medical
treatment" (Ex. 15: 349, p. 8). Some commenters suggested allowing the
health care professional to determine whether the activity was properly
classified as first aid or medical treatment (see, e.g., Exs. 27; 15:
131, 173, 176, 201, 334, 382, 392, 434). A typical comment along these lines
was one from the American Forest and Paper Association, which stated that
"* * * we believe a qualified health care professional should have the
authority to determine what is properly characterized as first aid and what
should be properly characterized as medical treatment" (Ex. 15:334, p.
7). Two commenters suggested that the health care professional be allowed to
decide whether an action constituted first aid or medical treatment only if
the treatment was not on either the first aid or medical treatment lists
(see, e.g., Exs. 27; 15: 382, 392, 434). One
commenter, the American Network of Community Options and Resources, supported
the development of a finite first aid list, but suggested that OSHA define
medical treatment as "any treatment that requires professional medical
intervention" (Ex. 15: 393, p. 8). A
number of commenters agreed with OSHA that the first aid definition should
focus on the type of treatment given, and not on the provider (see, e.g.,
Exs. 15: 185, 308, 338, 349, 364, 443). Other comments argued that a
distinction between first aid and medical treatment could be made on the
basis of the number of times a particular treatment had been given. The
AFL-CIO expressed a concern that, absent some consideration of the number of
times a treatment was administered, many serious injuries and illnesses would
no longer be recordable and valuable data would be lost. The AFL-CIO stated that
longer term treatments are more likely than shorter ones to be indicative of
medical treatment: The
proposed change in definition would seem to exclude cases where there are
continued instances of the listed first aid treatments from the recordkeeping
requirements. Those conditions which require continued treatments, including
continued use of non-prescription drugs and repeated cleaning, flushing or
soaking of wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the current
practice, so that serious conditions which require multiple treatments are
recorded on the log. We strongly urge OSHA to maintain the definition of
first aid in the current recordkeeping guidelines and to use the listed
conditions as examples of first aid. (Ex. 15: 418). Similarly,
the TIMEC group of companies believed that any one-time treatment should be
considered first aid, saying: It
is also TIMEC's perspective that the exclusion of a "one time medical
treatment" provision from the list of first aids is unduly restrictive.
Any condition that can be resolved or treated in one visit to the doctor
should be considered minimal or negligible in the context of record keeping
for industrial injuries. Under the proposed regulation, a condition that
results in a one time medical treatment theoretically could be given the same
weight, in terms of OSHA recordability, as a broken or severed limb. This
seems unduly restrictive. Further, it may inhibit some employers from taking injured
employees to the doctor in the first instance, in order to avoid a "OSHA
recordable injury." An employer may otherwise hope that the matter will
heal itself without infection. This seems contrary to the goal of the
Occupational Safety and Health Act, to ensure appropriate and prompt medical
treatment and safety services to employees (Ex. 15: 18, p. 2). In
response to these comments and the evidence in the record of this rulemaking,
the final rule essentially continues the proposed approach, i.e., it includes
a list of first-aid treatments that is inclusive, and defines as medical
treatment any treatment not on that list. OSHA recognizes, as several
commenters pointed out, that no one can predict how medical care will change
in the future. However, using a finite list of first aid treatments --
knowing that it may have to be amended later based on new information --
helps to limit the need for individual judgment about what constitutes first
aid treatment. If OSHA adopted a more open-ended definition or one that
relied on the judgment of a health care professional, employers and health
care professionals would inevitably interpret different cases differently,
which would compromise the consistency of the data. Under the system adopted
in the final rule, once the employer has decided that a particular response
to a work-related illness or injury is in fact treatment, he or she can
simply turn to the first aid list to determine, without elaborate analysis,
whether the treatment is first aid and thus not recordable. OSHA finds that
this simple approach, by providing clear, unambiguous guidance, will reduce
confusion for employers and improve the accuracy and consistency of the data. The
need for clear and unambiguous guidance is also OSHA's reason for not considering
treatments from the first aid list to be medical treatment if carried out for
a lengthier time, as suggested by the AFL-CIO. If an injured or ill employee
is given first-aid treatment, such as non-prescription medications (at
non-prescription strength), hot or cold therapy, massage therapy, or some
other treatment on the first aid list, the treatment should not be considered
medical treatment for OSHA recordkeeping purposes, regardless of the length
of time or number of applications used. This approach will ensure that the
recordkeeping system excludes truly minor injuries and illnesses, and capture
the more serious cases that require treatment beyond first aid. In
the final rule, OSHA has adopted the approach taken in the proposal, in a
slightly modified form. Under the final rule, employers will be able to rely
on a single list of 14 first aid treatments. These treatments will be
considered first aid whether they are provided by a lay person or a licensed
health care professional. However, the final rule includes the following
definition of medical treatment; "management and care of a patient for
the purpose of combating disease or disorder;" this definition excludes
observation and counseling, diagnostic procedures, and the listed first aid
items. OSHA believes that providing a definition of medical treatment for
recordkeeping purposes will help employers who are uncertain about what
constitutes medical treatment. OSHA will also provide examples of medical
treatments covered by this definition in compliance assistance documents
designed to help smaller businesses comply with the rule. The following
discussion describes the definitions of first aid and medical treatment in
the final rule and explains the Agency's reasons for including each item on the
first aid list. Final
Rule The
final rule, at § 1904.7(b)(5)(i), defines medical treatment as the management
and care of a patient for the purpose of combating disease or disorder. For
the purposes of Part 1904, medical treatment does not include: (A)
Visits to a physician or other licensed health care professional solely for
observation or counseling; (B)
The conduct of diagnostic procedures, such as x-rays and blood tests,
including the administration of prescription medications used solely for
diagnostic purposes (e.g., eye drops to dilate pupils); or (C)
"first aid" as defined in paragraph (b)(5)(ii) of this section. The
final rule, at paragraph (b)(5)(ii), defines first aid as follows: (A)
Using a nonprescription medication at nonprescription strength (for
medications available in both prescription and non-prescription form, a
recommendation by a physician or other licensed health care professional to
use a non-prescription medication at prescription strength is considered
medical treatment for recordkeeping purposes). (B)
administering tetanus immunizations (other immunizations, such as hepatitis B
vaccine or rabies vaccine, are considered medical treatment). (C)
Cleaning, flushing or soaking wounds on the surface of the skin; (D)
Using wound coverings, such as bandages, Band-Aids, gauze pads, etc.; or
using butterfly bandages or Steri-Strips (other wound closing devices, such
as sutures, staples, etc. are considered medical treatment); (E)
Using hot or cold therapy; (F)
Using any non-rigid means of support, such as elastic bandages, wraps,
non-rigid back belts, etc. (devices with rigid stays or other systems
designed to immobilize parts of the body are considered medical treatment for
recordkeeping purposes); (G)
Using temporary immobilization devices while transporting an accident victim
(e.g. splints, slings, neck collars, back boards, etc.) (H)
Drilling of a fingernail or toenail to relieve pressure, or draining fluid
from a blister; (I)
Using eye patches; (J)
Removing foreign bodies from the eye using only irrigation or a cotton swab; (K)
Removing splinters or foreign material from areas other than the eye by
irrigation, tweezers, cotton swabs, or other simple means; (L)
Using finger guards; (M)
Using massages (physical therapy or chiropractic treatment are considered
medical treatment for recordkeeping purposes); (N)
Drinking fluids for relief of heat stress. This
list of first aid treatments is comprehensive, i.e., any treatment not
included on this list is not considered first aid for OSHA recordkeeping
purposes. OSHA considers the listed treatments to be first aid regardless of
the professional qualifications of the person providing the treatment; even
when these treatments are provided by a physician, nurse, or other health
care professional, they are considered first aid for recordkeeping purposes. The
definition of medical treatment in the final rule differs both from the
definition used in the former rule ("treatment administered by a
physician or by registered professional personnel under the standing orders
of a physician") and the proposed definition ("medical treatment
includes any medical care or treatment beyond first aid"). The medical
treatment definition in the final rule is taken from Dorland's Illustrated
Medical Dictionary, and is thus consistent with usage in the medical
community. The
three listed exclusions from the definition -- visits to a health care
professional solely for observation or counseling; diagnostic procedures,
including prescribing or administering of prescription medications used
solely for diagnostic purposes; and procedures defined in the final rule as
first aid -- clarify the applicability of the definition and are designed to
help employers in their determinations of recordability. OSHA
received several comments on the proposed definition of medical treatment.
These dealt primarily with the general approach OSHA was proposing, i.e., the
use of an all-inclusive list of first aid applications, and defining any
treatment not on the list as medical treatment. The remaining comments (see, e.g.,
Exs. 15: 87, 171, 173, 176, 182, 229, 247, 260, 262, 265, 272, 303, 307, 357,
338, 375, 382, 396, 401, 413) urged OSHA to develop an all-inclusive list of
medical treatments, to provide examples of some medical treatments, or to provide
a non-mandatory appendix with such examples. OSHA
has not adopted the suggestions made by these commenters because the Agency
finds that simplicity and clarity are best served by adopting a single,
all-inclusive first aid list and explicitly stating that any treatment not on
the list is considered, for recordkeeping purposes, to be medical treatment.
Employers will thus be clear that any condition that is treated, or that
should have been treated, with a treatment not on the first aid list is a recordable
injury or illness for recordkeeping purposes. This
simplified approach addresses the concerns expressed by several commenters,
who emphasized that the distinction between first aid and medical treatment
made in the Act was meant to ensure that all occupational injuries and
illnesses that were other than minor be captured by OSHA's recordkeeping
system but that minor conditions not be recorded (see, e.g., Exs.
15-308, 375A, p. 7). As the American Petroleum Institute commented (Ex.
375A), "* * * the fundamental issue is the seriousness of the injury or
illness, not the treatment." OSHA concludes, based on its review of the
record, that the final rule's definitions of medical treatment and first aid
will work together to achieve Congress's intent, as specified in sections 8
and 24 of the Act. In
making its decisions about the items to be included on the list of first aid
treatments, OSHA relied on its experience with the former rule, the advice of
the Agency's occupational medicine and occupational nursing staff, and a
thorough review of the record comments. In general, first aid treatment can
be distinguished from medical treatment as follows: §
First aid is usually
administered after the injury or illness occurs and at the location (e.g.,
workplace) where the injury or illness occurred. §
First aid generally consists
of one-time or short-term treatment. §
First aid treatments are
usually simple and require little or no technology. §
First aid can be administered
by people with little training (beyond first aid training) and even by the
injured or ill person. §
First aid is usually
administered to keep the condition from worsening, while the injured or ill
person is awaiting medical treatment. The
final rule's list of treatments considered first aid is based on the record
of the rulemaking, OSHA's experience in implementing the recordkeeping rule
since 1986, a review of the BLS Recordkeeping Guidelines, letters of
interpretation, and the professional judgment of the Agency's occupational
physicians and nurses. Specific
Items on the Proposed First Aid List in the NPRM Item
1 listed in the NPRM definition of first aid was "Visit(s) to a health
care provider limited to observation." Two commenters raised the issue
of counseling with regard to the recording of mental disorders (Exs. 15: 226,
395). The American Ambulance Association (AAA) stated that: "This is and
should be considered preventive treatment aimed at preventing stress-related
illnesses. OSHA's adoption of such a policy will allow and encourage
employers to provide CISD (critical incident stress debriefing)
counseling" (Ex. 15: 226, p. 3). The AAA recommended that OSHA add
preventive counseling, such as critical incident stress debriefing, to the
first aid listing. OSHA
agrees that counseling should not be considered medical treatment and has
expressly excluded it from the definition of medical treatment. Counseling is
often provided to large groups of workers who have been exposed to
potentially traumatic events. Counseling may be provided on a short-term
basis by either a licensed health care professional or an unlicensed person
with limited training. OSHA believes that capturing cases where counseling
was the only treatment provided do not rise to the level of recording; other
counseling cases, where prescription medications, days away from work, or
restricted work activity is involved, would be captured under those criteria. The
Brookhaven National Laboratory recommended that the first aid list include
any return visit to evaluate diagnostic decisions (Ex. 15: 163). Caterpillar,
Inc. suggested that visits for observation, testing or diagnosis of injuries
should also be considered first aid (Ex. 15: 201). The Chemical Manufacturers
Association and Marathon Oil Company encouraged OSHA to add visits to the
hospital for observation to the first-aid list (Exs. 15: 308, 310) OSHA
generally agrees with these commenters. OSHA believes that visits to a health
care professional for observation, testing, diagnosis, or to evaluate
diagnostic decisions should be excluded from the definition of medical
treatment in the final rule. Visits to a hospital, clinic, emergency room,
physician's office or other facility for the purpose of seeking the advice of
a health care professional do not themselves constitute treatment. OSHA believes
that visits to a hospital for observation or counseling are not, of and by
themselves, medical treatment. Accordingly, the final rule excludes these
activities from the definition of medical treatment. Item
2 listed in the NPRM definition of first aid was "Diagnostic procedures,
including the use of prescription medications solely for diagnostic purposes
(e.g. eye drops to dilate pupils)." Several commenters believed
that diagnostic procedures such as x-rays and blood tests should not be
considered medical treatment (see, e.g., Exs. 15: 176, 301, 347, 349,
375, 443). For example, General Electric (GE) stated "Diagnostic tests
should not be considered medical treatment. Considering a diagnostic test to
be a recordable injury without consideration of the test results is illogical
and will establish a disincentive to test. GE's position is that a definition
of medical treatment should also be included in the proposed regulation.
Proposed wording is as follows: "Medical treatment" includes any
medical care or treatment beyond "first aid" and does not include
diagnostic procedures." Two
commenters opposed the exclusion of diagnostic procedures. The National
Institute for Occupational Safety and Health (NIOSH) said "the term
diagnostic procedures" in item #2 is too broad, and the example given is
vague. These procedures should not be considered first aid" (Ex. 15:
407, p. 17). The United Steelworkers of America stated " * * * delete
the use of prescription drugs for diagnostic purposes. This will be abused by
the company" (Ex. 15: 429). OSHA
disagrees with NIOSH that the exclusion for diagnostic procedures is overly
vague. It is the experience of the Agency that employers generally understand
the difference between procedures used to combat an injury or illness and
those used to diagnose or assess an injury or illness. In the event that the
employer does not have this knowledge, he or she may contact the health care
professional to obtain help with this decision. If the employer does not have
this knowledge, and elects not to contact the health care professional, OSHA
would expect the employer to refer to the first aid list and, if the
procedure is not on the list, to presume that the procedure is medical
treatment and record the case. OSHA also does not believe that this provision
will be subject to abuse, because the procedures used for diagnosis are
generally quite different from those involving treatment. OSHA
agrees with those commenters who recommended the exclusion of diagnostic
procedures from the definition of medical treatment. Diagnostic procedures
are used to determine whether or not an injury or illness exists, and do not
encompass therapeutic treatment of the patient. OSHA has included such
procedures on the first aid list in the final rule with two examples of
diagnostic procedures to help reduce confusion about the types of procedures
that are excluded. Item
3 listed in the NPRM definition of first aid was "Use of nonprescription
medications, including antiseptics." This issue received a large number
of comments, more than any other issue related to the proposed definition of
medical treatment and first aid. Most of the comments requested that OSHA
consider some uses of prescription drugs to be first aid treatment (see, e.g.,
Exs. 15: 13, 60, 147, 159, 201, 218, 225, 246, 247, 297, 308, 332, 335, 336,
348, 349, 359, 374, 375, 386, 387, 395, 405, 414, 430, 434). The most common
reason given by commenters for treating some prescription drugs as first aid
was their use when they were given for preventive rather than therapeutic
intervention. Several commenters asked for a broad exception from medical
treatment for prescription drugs taken for preventive or prophylactic
purposes (see, e.g., Exs. 55X 15: 247, 336, 375, 395). For example,
the American Iron and Steel Institute stated "AISI encourages OSHA to
make one change: add the use of prescription medications for prophylactic
reasons to the first aid list. In many instances, a health care professional
will prescribe antibiotics as a precaution against a possible infection. An
employer should not be required to record a minor injury solely because a
health care professional opted to respond aggressively" (Exs. 15: 395;
55X). Several
commenters asked for an exception from the medical treatment for antibiotics
and antiseptics (see, e.g., Exs. 15: 218, 246, 332, 349, 375, 395,
414, 430). Raytheon Constructors, Inc. commented: "We believe the
following treatments should be added [to the first aid list]: Application of
antiseptics, as often as needed. This is for prevention of infection after an
injury. Infection is not caused by the work environment. Treatment for an
infection, such as prescription drugs. Again, infection is not the result of
the work environment" (Ex. 15: 414). A
number of employers asked OSHA to define the use of prescription drugs for
comfort, or to relieve pain or inflammation, as first aid (see, e.g.,
Exs. 15: 60, 147, 201, 225, 247, 308, 348, 349). The American Gas Association
stated that: we propose that 'prescription medications for comfort' be added
to the list. Medical practitioners frequently "prescribe drugs to
comfort people after an injury" (Ex. 15: 225), and the Proctor and
Gamble Company stated "[p]rescription medication to prevent
complications or reduce pain should not be a sole basis for recording
injuries and illnesses. It is our view that preventive measures or action
taken to reduce pain should not in themselves be the basis for
recording" (Ex. 15: 147). Entergy Services Inc. suggested that OSHA
include Benadryl shots as first aid since they are often given to prevent
allergic reactions to insect bites and poison oak/ivy/sumac (Ex. 15: 13). The
Arizona Public Service Company remarked: "Treatment for bee stings
should be addressed (perhaps listed on the First Aid list). For instance, if
a doctor administers the same treatment that an employee could have
administered themselves it should not be considered medical treatment"
(Ex. 15: 247). Another
set of comments suggested that prescription medications should be considered
first aid if they were used only once or for a limited period of time. A
number of comments requested that OSHA continue to treat a single dose of
prescription medication as first aid. (see, e.g., Exs. 15: 201, 332,
348, 349, 359, 374, 386, 387, 405, 430, 434). Typical of these comments was
one from the National Safety Council: [t]hat
administration of a single dose of prescription medication on first visit for
minor injury or discomfort remain first aid. For example, minor muscle aches
and pains may occasionally be eased with a single dose of 800 mg ibuprofen.
This is currently considered first aid and should remain so. Another example
would be the treatment of first degree burns. This is currently considered
first aid treatment, even though treatment frequently involves the
application of a single dose of prescription-strength ointment. (Ex.15: 359,
p. 12) Other
commenters suggested that prescription medications used for 24 hours, 48
hours, or five days be considered first aid (see, e.g., Exs. 15: 159,
246, 297, 308, 335, 375). In
the final rule, OSHA has not included prescription medications, whether given
once or over a longer period of time, in the list of first aid treatments.
The Agency believes that the use of prescription medications is not first aid
because prescription medications are powerful substances that can only be
prescribed by a licensed health care professional, and for the majority of
medications in the majority of states, by a licensed physician. The
availability of these substances is carefully controlled and limited because
they must be prescribed and administered by a highly trained and
knowledgeable professional, can have detrimental side effects, and should not
be self-administered. Some
commenters asked whether a case where a prescription was written by a
physician and given to the injured or ill employee but was not actually
filled or taken would be recordable. In some instances the employee, for
religious or other reasons, refuses to fill the prescription and take the
medicine. In other cases, the prescriptions are issued on a
"take-as-needed" basis. In these cases, the health care
professional gives the patient a prescription, often for pain medication, and
tells the patient to fill and take the prescription if he or she needs pain
relief. OSHA's long-standing policy has been that if a prescription of this
type has been issued, medical treatment has been provided and the case must
therefore be recorded. Numerous commenters asked OSHA to reverse or clarify
its policy and consider these prescriptions to be first aid in the final rule
(see, e.g., Exs. 15: 13, 105, 247, 260, 262, 279, 281, 295, 300, 308,
359, 362, 386, 414). For example, the National Safety Council requested that
"OSHA should specify whether the treatment must actually be given or
merely be appropriate or normal for the injury or illness. For example, is
medical treatment given when a prescription is written or when it is filled
or when it is taken by the employee" (Ex. 15: 359). OSHA
has decided to retain its long-standing policy of requiring the recording of
cases in which a health care professional issues a prescription, whether that
prescription is filled or taken or not. The patient's acceptance or refusal
of the treatment does not alter the fact that, in the health care professional's
judgment, the case warrants medical treatment. In addition, a rule that
relied on whether a prescription is filled or taken, rather than on whether
the medicine was prescribed, would create administrative difficulties for
employers, because such a rule would mean that the employer would have to
investigate whether a given prescription had been filled or the medicine had
actually been taken. Finally, many employers and employees might well
consider an employer's inquiry about the filling of a prescription an
invasion of the employee's privacy. For these reasons, the final rule
continues OSHA's longstanding policy of considering the giving of a
prescription medical treatment. It departs from former practice with regard
to the administration of a single dose of a prescription medicine, however,
because there is no medical reason for differentiating medical treatment from
first aid on the basis of the number of doses involved. This is particularly
well illustrated by the recent trend toward giving a single large dose of
antibiotics instead of the more traditional pattern involving several smaller
doses given over several days. Yet
another issue raised by commenters about medications involved the use of
non-prescription medications at prescription strength. In recent years, many
drugs have been made available both as prescription and
"over-the-counter" medications, depending on the strength or dosage
of the product. Some examples include various non-steroidal anti-inflammatory
drugs (NSAIDs), such as ibuprofen, and cortisone creams. OSHA's policy has
been that if these drugs are used in the over-the-counter form they are first
aid, but if they are used in prescription form, they are medical treatment.
Some commenters stated that these drugs should always be considered first aid
(see, e.g., Exs. 15: 300, 308, 414). For example, Heritage
Environmental Services, Inc. stated: While
the proposed rule includes the use of non-prescription medications in the
definition of first aid, it fails to address the use of prescription
quantities of over-the-counter medications (i.e., Tylenol, Motrin). It has
been Heritage's experience that the requirement of the current rule to record
cases where physicians have prescribed over the counter medications has
resulted in the inclusion of a broad range of minor cases, that in all other
respects would not have been recordable. In working with occupational health
care providers for many years, Heritage has found that frequently, physicians
prescribe prescription quantities of over the counter medications for reasons
other than the severity of the injury. Many physicians are unaware that the
distribution of OTC medications in such a manner results in an OSHA
recordable injury/illness.* * * Heritage strongly favors the inclusion of a
statement within the definition of first aid that eliminates the need to
record cases where the sole reason for the recording of the case is the
administration of prescription quantities of over-the-counter medications.
(Ex. 15: 300) Other
commenters stated that the use of nonprescription medications should be
considered medical treatment if they are used at prescription strength (Ex.
15: 279) or that the continued use of non-prescription drugs, especially
anti-inflammatory drugs, should be considered medical treatment (see, e.g.,
Exs. 15: 362, 371, 380, 418). The Union of Needletrades, Industrial and
Textile Employees (UNITE) stated that "the self-administration of
medication, when used on a recurring basis, should trigger the recording of
cases" (Ex. 15: 380), and the United Food and Commercial Workers Union,
pointed out that "When the employee reports pain that has lasted for
over a week, they are given over-the-counter medication for as long as they
ask. These cases, which can go on for a month or longer, are never
recorded" (Ex. 15: 371). One
commenter suggested that health care professionals might prescribe
over-the-counter medications rather than prescription medications for
economic reasons (Ex. 15: 279). The
final rule does not consider the prescribing of non-prescription medications,
such as aspirin or over-the-counter skin creams, as medical treatment.
However, if the drug is one that is available both in prescription and
nonprescription strengths, such as ibuprofen, and is used or recommended for
use by a physician or other licensed health care professional at prescription
strength, the medical treatment criterion is met and the case must be
recorded. There is no reason for one case to be recorded and another not to
be recorded simply because one physician issued a prescription and another
told the employee to use the same medication at prescription strength but to
obtain it over the counter. Both cases received equal treatment and should be
recorded equally. This relatively small change in the recordkeeping rule will
improve the consistency and accuracy of the data on occupational injuries and
illnesses and simplify the system as well. Two
commenters asked OSHA to add non-prescription ointments to item 3 on the
first aid list (Exs. 15: 308, 443). The final rule simply lists
non-prescription medications, and expects non-prescription medications to be
included regardless of form. Therefore, non-prescription medicines at
non-prescription strength, whether in ointment, cream, pill, liquid, spray,
or any other form are considered first aid. OSHA has also removed antiseptics
from the description of non-prescription medications. Following the same
logic used for ointments, there is no need to list the variety of possible
uses of non-prescription medications. Non-prescription medicines are first
aid regardless of the way in which they are used. Item
4 listed in the NPRM definition of first aid was "Simple administration
of oxygen." Some commenters agreed with OSHA's proposal to define the
giving of oxygen as first aid (see, e.g., Exs. 15: 34, 74, 78, 201,
281, 378, 414). Several
commenters, however, asked OSHA to provide more guidance as to what qualified
as the "simple" administration of oxygen (see, e.g., Exs.
15: 13, 170, 188, 229, 260, 262, 265, 272, 303, 374, 401, 405), while others
suggested alternatives that would make some uses of oxygen first aid and
other uses medical treatment. The American Petroleum Institute recommended:
"Simple oxygen administration is standard operating procedure for EMTs
and should remain first aid. Oxygen therapy, if prescribed, should be
considered medical treatment" (15: 375). A group of utilities said
"Simple administration of oxygen should be defined to include the
preventive aspects following an injury. This would include, for example,
administration at the pre-hospital site or while in the emergency room or
hospital for observation. Identifying oxygen administration in this manner
would eliminate the need to identify which of the more advanced uses of
oxygen should be considered as medical treatment" (see, e.g.,
Exs. 15: 260, 262, 265, 401). A
number of commenters opposed the inclusion of oxygen as a first aid treatment
(see, e.g., Exs. 15: 9, 87, 156, 290, 350, 395, 415, 429). The
American Red Cross stated: The
simple administration of oxygen * * * is inappropriately considered first
aid. Simple administration of oxygen is not so simple. If oxygen is
administered to someone with chronic pulmonary disease (a medical condition
not generally recognized by untrained individuals), the victim could die.
Carbon dioxide build-up in the blood forces an individual with this condition
to breathe; therefore, administration of oxygen would obstruct the
involuntary breathing action, resulting in pulmonary arrest. Red Cross would
argue that no administration of oxygen is "simple" (Ex. 15: 290). The
United Brotherhood of Carpenters Health & Safety Fund of North America
(USC H&SF) remarked, "[w]e urge that OSHA remove the simple
administration of oxygen from first aid treatment. This procedure requires considerable
training above what is recognized as First Aid by either the Red Cross's or
National Safety Council's First Aid training courses" (Ex. 15: 350). The
Muscatine Iowa Chamber of Commerce Safety Committee added: We
feel that oxygen administration, as a first aid treatment would extend beyond
the intent of the standards. The training and equipment requirements for the
delivery of oxygen are extensive and beyond the simple first aid kits. We
believe that the delivery of even the most minimal amount of oxygen
constitutes an advanced level of care to an employee. All oxygen
administration should be considered as medical treatment, no matter how
delivered or how much is used, for whatever the reason" (Ex. 15: 87, p.
4). OSHA
is persuaded by the views of the Red Cross and others, which point to the
potential complexities and consequences of the administration of oxygen.
Accordingly, the Agency has decided to remove the use of oxygen from the
first aid list and to consider any use of oxygen medical treatment. Oxygen
administration is a treatment that can only be provided by trained medical
personnel, uses relatively complex technology, and is used to treat serious
injuries and illnesses. The use of any artificial respiration technology,
such as Intermittent Positive Pressure Breathing (IPPB), would also clearly
be considered medical treatment under the final rule. Item
5 listed in the NPRM definition of first aid was "administration of
tetanus or diphtheria shot(s) or booster(s)." These treatments have been
considered first aid by OSHA for some time when they are administered
routinely, i.e., in the absence of an injury or illness (see the
Recordkeeping Guidelines (Ex. 2, p. 43)). Several commenters expressed their
support for continuing to include tetanus and diphtheria shots and boosters
as first aid (see, e.g., Exs. 15: 197, 201, 218, 247, 302, 308, 348,
385, 386, 393). Bell Atlantic commented that "Bell Atlantic supports the
proposed inclusion of tetanus/diphtheria shots on the first aid list. Such
preventative actions should not be considered medical treatment" (Ex.
15: 218). One commenter, Countrymark Cooperative, Inc., agreed that tetanus
shots or boosters should be considered first aid, but did not believe
diphtheria shots or boosters should be (Ex. 15: 9). Two
commenters recommended that tetanus and diphtheria shots be considered
medical treatment, whether or not they are administered in connection with a
work-related injury or illness. The American Red Cross stated,
"inappropriately considered * * * administration of diphtheria and
tetanus shots or boosters cannot be performed without a prescription from a
physician. The person administering the shots must also be cognizant of
potential side effects, i.e., anaphylactic shock, which can result
from such an action, and be prepared to address them" (Ex. 15: 290). The
International Brotherhood of Teamsters added "International Brotherhood
of Teamsters encourages OSHA to discontinue tetanus and diphtheria booster
shots as first aid. They should be considered medical treatment. They are
usually administered both after exposure and before diagnosis. The
International Brotherhood of Teamsters considers it similar to the
prophylaxis medical treatment given after exposure to Hepatitis B Virus"
(Ex. 15: 369). A
number of commenters recommended the addition to the first aid list of other
immunizations, including gamma globulin; vaccines for hepatitis B, hepatitis
C, and rabies; or other prophylactic immunizations (see, e.g., Exs.
15: 197, 201, 218, 302, 308, 347, 348, 386). Caterpillar, Inc. recommended,
"[c]learly exclude any immunizations and inoculations which are
preventative in nature. Immunizations and inoculations are not usually
provided in response to a specific injury or illness and should be excluded
from OSHA records" (Ex. 15: 201). In
the final rule, tetanus immunizations are included as item B on the first aid
list. These immunizations are often administered to a worker routinely to
maintain the required level of immunity to the tetanus bacillus. These immunizations
are thus based not on the severity of the injury but on the length of time
since the worker has last been immunized. The
issue of whether or not immunizations and inoculations are first aid or
medical treatment is irrelevant for recordkeeping purposes unless a
work-related injury or illness has occurred. Immunizations and inoculations
that are provided for public health or other purposes, where there is no
work-related injury or illness, are not first aid or medical treatment, and
do not in themselves make the case recordable. However, when inoculations
such as gamma globulin, rabies, etc. are given to treat a specific injury or
illness, or in response to workplace exposure, medical treatment has been
rendered and the case must be recorded. The following example illustrates the
distinction OSHA is making about inoculations and immunizations: if a health
care worker is given a hepatitis B shot when he or she is first hired, the
action is considered first aid and the case would not be recordable; on the
other hand, if the same health care worker has been occupationally exposed to
a splash of potentially contaminated blood and a hepatitis B shot is
administered as prophylaxis, the shot constitutes medical treatment and the
case is recordable. Item
6 listed in the NPRM definition of first aid was "cleaning, flushing or
soaking wounds on skin surface." OSHA received only one specific comment
on this item. The American Federation of State, County, and Municipal
Employees (AFSCME) commented: "Cleaning, flushing or soaking wounds on
skin surfaces. This is the initial treatment for needle stick injuries.
AFSCME requests that OSHA clarify its position that cleaning, flushing or
soaking of sharps injuries is considered a medical treatment" (Ex. 15:
362). The
AFL-CIO disagreed with OSHA's proposed approach to skin surface wounds, based
on the belief that valuable information about serious work-related injuries
would be lost if the approach were adopted: The
proposed change in definition would seem to exclude cases where there are
continued instances of the listed first aid treatments from the recordkeeping
requirements. Those conditions which require continued treatments, including
continued use of non-prescription drugs and repeated cleaning, flushing or
soaking of wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the current
practice, so that serious conditions which require multiple treatments are
recorded on the log. We strongly urge OSHA to maintain the definition of
first aid in the current recordkeeping guidelines and to use the listed
conditions as examples of first aid (Ex. 15: 418). OSHA
believes that cleaning, flushing or soaking of wounds on the skin surface is
the initial emergency treatment for almost all surface wounds and that these
procedures do not rise to the level of medical treatment. This relatively
simple type of treatment does not require technology, training, or even a
visit to a health care professional. More serious wounds will be captured as
recordable cases because they will meet other recording criteria, such as
prescription medications, sutures, restricted work, or days away from work.
Therefore, OSHA has included cleaning, flushing or soaking of wounds on the
skin surface as an item on the first aid list. As stated previously, OSHA
does not believe that multiple applications of first aid should constitute
medical treatment; it is the nature of the treatment, not how many times it
is applied, that determines whether it is first aid or medical treatment. Item
7 listed in the NPRM definition of first aid was "Use of wound
coverings, such as bandages, gauze pads, etc." These treatments were
considered first aid treatments by the Recordkeeping Guidelines (Ex.
2, p. 43). OSHA received no comments opposing the proposed definition of
wound coverings as first aid. However, the issue of whether or not butterfly
bandages and Steri-stripsTM are first aid was raised. Steri-stripsTM are a
product of the 3M Company, which advertises them as a comfortable adhesive
strip used to secure, close and support small cuts, wounds and surgical
incisions. "Butterfly bandages" is a generic term used for similar
adhesive strips designed for small wounds. All
of the commenters who raised the issue suggested that OSHA add Steri-strips
and butterfly bandages to this first aid item (see, e.g., Exs. 15: 45,
108, 163, 201, 247, 308, 332, 349, 387, 405). Some commenters believed that
the use of Steri-stripsTM and butterfly bandages should always be considered first
aid (see, e.g., Exs. 15: 45, 247, 332, 349, 387), while others
believed they should be considered medical treatment only when used as a
replacement for, or in lieu of, sutures (see, e.g., Exs. 15: 108, 163,
201, 308, 405). The Westinghouse Electric Corporation stated, "Steri-strips
should be added to the list of first-aid treatments, when determined by the
attending medical provider that the Steri-strip™ was not applied in lieu of
sutures. Often medical care providers use a Steri-strip™ rather than a
bandage, even though the injury does not require closure of any type"
(Ex. 15: 405). These
treatments were listed in the 1986 Recordkeeping Guidelines as medical
treatment when applied "in lieu of sutures" (Ex. 2, p. 43). In the
past, this provision in the Guidelines has been the subject of several
letters of interpretation. For example, in a 1993 letter from Ms. Monica
Verros, R.N., C.O.H.N, of the IBP company, Ms. Verros asked, "[a]re all
applications of butterfly adhesive dressing(s) and Steri-strip(s) considered
medical treatment?" OSHA's answer was simply "yes" (Ex. 70:
136). OSHA
agrees with the commenters who suggested that these devices be considered
first aid treatment. They are included in item D of the first aid list. Steri
strips and butterfly bandages are relatively simple and require little or no
training to apply, and thus are appropriately considered first aid. Two
commenters also raised the issue of whether or not sutures or stitches should
be considered first aid (Exs. 15: 229, 348). The National Pest Control
Association (NPCA) stated: NPCA
believes cuts requiring five or less external stitches should also be
categorized as first aid as well unless the employee has to go back to the
medical provider because of the cut or there are more than five external
stitches. Some of the examples the agency has included in its list of first
aid, such as drilling of a nail to relieve pressure for subungual hematoma
and removal of splinters or foreign material from areas other than eyes by
irrigation, tweezers, cotton, swabs or other simple means, seems to be
comparable to cuts requiring a minimal amount of stitches. Therefore, we
believe it should be added to the list (Ex. 15: 229, p. 4). The
Dupont Company suggested: "Expand the 'suture' category to say that any
device used for closure for therapeutic reasons is an automatic MTC (medical
treatment case). Leeway should be given for when a care provider gives
'unnecessary' treatment, for example, sutures for cosmetic reasons instead of
for therapeutic closure, where the doctor provides the documentation"
(Ex. 15: 348). OSHA
believes that including sutures or stitches in the first aid list would not
be appropriate. Performing these procedures requires substantial medical
training, and they are used only for more serious wounds and are generally
considered to go beyond first aid. OSHA has also decided not to provide
exclusions for first aid items based on their purpose or intent. If the
medical professional decides stitches or sutures are necessary and proper for
the given injury, they are medical treatment. Because
OSHA has decided not to include a list of medical treatments in the final
rule, there is no need to articulate that the use of other wound closing
devices, such as surgical staples, tapes, glues or other means are medical
treatment. Because they are not included on the first aid list, they are by
definition medical treatment. Item
8 listed in the proposed definition of first aid was "[u]se of any
hot/cold therapy (e.g. compresses, soaking, whirlpools, non
prescription skin creams/lotions for local relief, etc.) except for
musculoskeletal disorders" (61 FR 4059). The Recordkeeping Guidelines
defined heat therapy, hot or cold therapy compresses or soaking therapy, or
whirlpool bath therapy on a second or subsequent visit to be medical
treatment (Ex. 2, p. 43). OSHA has restated this guidance in numerous letters
of interpretation, most of them related to the issue of the recording of
musculoskeletal disorders (MSDs). A
number of commenters recommended that hot or cold therapy be defined as first
aid regardless of the number of times it is administered or the type of
condition for which it is used (see, e.g., Exs. 15: 39, 45, 95, 109,
156, 163, 199, 201, 218, 246, 308, 347, 348, 359, 386, 414, 430, 443).
Several of the comments cited consistency as an issue (see, e.g., Exs.
15: 39, 109, 347, 348, 430). For example, the Dupont Company stated that
"Item 8 on the 'First Aid Treatment' list considers the same treatment
as either first aid or medical treatment depending on the condition for which
it is applied. The treatment is used for reduction of swelling and
discomfort. The condition for which it is used should not matter. * * *
Exclude the 'except for musculoskeletal disorders * * *' clause from item 8
(Ex. 15: 348, p. 9). Another
issue raised was that hot and cold treatments do not require special training
(Ex. 15: 414). For example, Raytheon Constructors stated "[w]e believe
the following treatments should be added: Soaking, whirlpool and hot/cold
therapy with no limit on the number of times. Many physicians choose this
conservative treatment, plus, any first aid trained person and/or the injured
person can do this" (Ex. 15: 414). Other commenters stated that serious
musculoskeletal disorders would be captured more consistently by other recording
criteria (see, e.g., Exs. 15: 199, 347). The Ford Motor Company
stated: We
have a major disagreement with the proposed rule that the use of any hot or
cold therapy is first aid, except for musculoskeletal disorders. The use of
hot or cold therapy should always be considered first aid. If an individual
has a significant or serious musculoskeletal disorder, it would require
prescription medicine, restriction of work or motion, transfer to another
job, a day away from work, or medical treatment. Considering hot or cold
therapy to always be first aid simplifies the system, reduces confusion, and
does not discourage practitioners from using hot or cold therapy for minor or
insignificant musculoskeletal disorders. If all musculoskeletal disorders
which include two or more applications of hot or cold therapy as directed by
a health care provider are recordable, the data on musculoskeletal disorders
will be absolutely useless (Ex. 15: 347). Several
commenters believed that multiple hot or cold treatments should be considered
medical treatment (see, e.g., Exs. 15: 371, 418). The AFL-CIO
disagreed with OSHA's proposal; it recommended that multiple treatments of
all types be considered medical treatment, based on the belief that valuable
information about serious work-related injuries would otherwise be lost. The
AFL-CIO said: The
proposed change in definition would seem to exclude cases where there are
continued instances of the listed first aid treatments from the recordkeeping
requirements. * * * The AFL-CIO believes that first aid should be limited to
one time treatments as is the current practice, so that serious conditions
which require multiple treatments are recorded on the log. We strongly urge
OSHA to maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first aid (15:
418). The
Tosco Corporation proposed an alternative, recommending that hot/ cold
treatments for musculoskeletal disorders be considered first aid for the
first four treatments (Ex. 15: 246). In
the final rule, OSHA has included hot and cold treatment as first aid
treatment, regardless of the number of times it is applied, where it is
applied, or the injury or illness to which it is applied. The Agency has
decided that hot or cold therapy must be defined as either first aid or
medical treatment regardless of the condition being treated, a decision that
departs from the proposal. It is OSHA's judgment that hot and cold treatment
is simple to apply, does not require special training, and is rarely used as
the only treatment for any significant injury or illness. If the worker has
sustained a significant injury or illness, the case almost always involves
some other form of medical treatment (such as prescription drugs, physical
therapy, or chiropractic treatment); restricted work; or days away from work.
Therefore, there is no need to consider hot and cold therapy to be medical
treatment, in and of itself. Considering hot and cold therapy to be first aid
also clarifies and simplifies the rule, because it means that employers will
not need to consider whether to record when an employee uses hot or cold
therapy without the direction or guidance of a physician or other licensed
health care professional. Item
9 listed in the NPRM definition of first aid was "[u]se of any totally
non-rigid, non-immobilizing means of support (e.g. elastic
bandages)." The proposal reflected OSHA's guidance to employers under
past interpretations. The Recordkeeping Guidelines defined first aid
treatment as "use of elastic bandage(s) during first visit to medical
personnel" (Ex. 2, p. 43). The Guidelines do not provide specific
guidance on the use of other types of orthopedic devices such as splints,
casts, or braces. In response to requests from the public to clarify the
issue of which devices are medical treatment and which are first aid
treatment, OSHA issued several letters of interpretation stating that the use
of wraps or non-constraining devices such as wristlets, tennis elbow bands or
elastic bandages are first aid treatment, regardless of how long or how often
they are used. The use of casts, splints, or orthopedic devices designed to
immobilize a body part to permit it to rest and recover is considered medical
treatment. Generally, orthopedic devices used for immobilization are made
rigid, in whole or in part, through the use of stays or non-bending supports
(see, e.g., Exs. 70: 40, 158). OSHA
received several comments recommending that it provide additional
clarification of this issue (see, e.g., Exs. 15: 176, 290). Several
commenters suggested that OSHA include wrist splints as first aid, on the
grounds that wrist splints are used as a prophylactic treatment (see, e.g.,
Exs. 15: 332, 349, 386, 387). Other commenters recommended that finger
splints be considered first aid (see, e.g., Exs. 15: 201, 349, 386).
The Caterpillar Company suggested that OSHA "[e]xpand item 9 to include
rigid finger splints, which are used only to prevent further injury or to
maintain the cleanliness of finger lacerations and other minor wounds, rather
than as part of the required medical treatment. Only splints that are used to
provide rigidity as part of the required medical treatment should trigger
recordability" (Ex. 15: 201). Several
comments centered on the issue of immobilization for injuries while the
worker is being transported to a medical care facility (see, e.g.,
Exs. 15: 290, 347, 434). The Ford Motor Company remarked, "[t]he first
aid list should be expanded to include the use of any partially or totally
rigid immobilizing means of support when used solely for the purpose of
immobilization during initial transport for medical evaluation. For example,
the use of a back board, stiff neck collar, or air splint" (Ex. 15:
347). The American Red Cross added: While
Red Cross would agree that this is "first aid," it is unclear
whether OSHA intends for use of rigid support to be considered "medical
treatment." In most traditional first aid classes, including those
taught by Red Cross, students are taught that if, for example, a victim has
broken a bone, any rigid means of support that would immobilize the limb
until further medical care can be obtained should be utilized. Examples of
rigid support include newspapers, magazines, sticks, boards, splints, etc.,
anything that is available to prevent further injury. This action may be
performed by anyone who has been trained in first aid, and Red Cross does not
believe that "rigidity" is the appropriate qualification to
consider this action "medical treatment" (15: 290). The
General Electric Corporation (GE) recommended that OSHA rely, not on the
design of the device but on whether or not the device resulted in restricted
activity. GE recommended "the following additions to the list: Use of
rigid or non-rigid immobilization devices, if they don't result in restricted
activity, e.g. wrist braces, finger splints, immobilization for
transport" (Ex. 15: 349). OSHA
has included two items related to orthopedic devices in the final definition
of first aid. Item F includes "[u]sing any non-rigid means of support,
such as elastic bandages, wraps, non-rigid back belts, etc. (devices with
rigid stays or other systems designed to immobilize parts of the body are
considered medical treatment for recordkeeping purposes)." OSHA has
included more examples of the devices (wraps and non-rigid back belts) to
help make the definition clearer. However, OSHA believes that the use of
orthopedic devices such as splints or casts should be considered medical
treatment and not first aid. They are typically prescribed by licensed health
care professionals for long term use, are typically used for serious injuries
and illnesses, and are beyond the everyday definition of first aid. OSHA
believes that it would be inappropriate to rely on "restricted activity,"
as recommended by GE, because there may be situations where orthopedic
devices are prescribed, the worker is not placed on restrictions, but an
injury or illness warranting recording has occurred. However,
OSHA agrees with those commenters who stated that the use of these devices
during an emergency to stabilize an accident victim during transport to a
medical facility is not medical treatment. In this specific situation, a
splint or other device is used as temporary first aid treatment, may be
applied by non-licensed personnel using common materials at hand, and often
does not reflect the severity of the injury. OSHA has included this item as G
on the first aid list: "[u]sing temporary immobilization devices while
transporting an accident victim (e.g. splints, slings, neck collars,
etc.)" Item
10 listed in the proposed definition of first aid was "drilling of a
nail to relieve pressure for subungual hematoma." A subungual hematoma
is an accumulation of blood underneath a finger or toenail that is normally
caused by a sharp blow to the nail. When pressure builds beneath the nail,
pain results. The normal course of treatment for this injury is to drill a
small hole through the nail to relieve the pressure. In the past, OSHA
considered such treatment to be medical treatment and not first aid. For
example, a 1993 letter from IBP, Inc. asked whether "[d]rilling a hole
through a fingernail to relieve pressure (subungual hematoma) is considered
medical treatment?" OSHA's answer was "Yes, the draining of any
fluids or blood is to be considered medical treatment" (Ex. 70: 136). OSHA
received very few comments on this first aid item. Linda Ballas &
Associates stated "The drilling of a nail to relieve pressure for
subungual hematoma should be included as medical treatment and not first
aid" (Ex. 15: 31, p. 5). The American Textile Manufacturers Institute
recommended that OSHA change the item to: "Simple relieving of the
pressure of a subungual hematoma. The use of the word drilling is too
restrictive. There are a number of simple procedures to relieve pressure that
are considered first aid" (Ex. 15:156). OSHA also received a similar
comment from Oxychem Corporation stating that lancing a blister should be
considered first aid (Ex. 15: 386). OSHA
has decided to retain this item on the first aid list and to add the lancing
of blisters as well. These are both one time treatments provided to relieve
minor soreness caused by the pressure beneath the nail or in the blister.
These are relatively minor procedures that are often performed by licensed
personnel but may also be performed by the injured worker. More serious
injuries of this type will continue to be captured if they meet one or more
of the other recording criteria. OSHA has specifically mentioned finger nails
and toenails to provide clarity. These treatments are now included as item H
on the first aid list. Item
11 listed in the proposed definition of first aid was "Use of eye
patches." The Recordkeeping Guidelines did not provide specific
guidance about eye patches. However, in a 1992 letter, OSHA provided an
interpretation that the use of eye patches was first aid treatment; in that
letter, ELB Inc. asked OSHA to "[e]xplain if pressure patches on eyes
are recordable or if a patch over an eye to prevent light from entering is recordable?
Is the use of an eye patch recordable?" OSHA answered " The use of
a normal eye patch is considered to be first aid. However, if the employee is
unable to perform all of his/her normal job duties because of the patch, the
case should be recorded based on restricted work activity. The use of a
pressure eye patch is medical treatment" (Ex. 70: 161) . OSHA
received only one comment specific to this item. The National Institute for
Occupational Safety and Health (NIOSH) stated that the initial use of an eye
patch would generally require medical evaluation and should not be considered
first aid (Ex. 15: 407). In the final rule, OSHA has included the use of eye
patches as first aid in item I of the first aid list. Eye patches can be
purchased without a prescription, and are used for both serious and
non-serious injuries and illnesses. OSHA believes that the more serious
injuries to the eyes will that NIOSH refers to require medical treatment,
such as prescription drugs or removal of foreign material by means other than
irrigation or a cotton swab, and will thus be recordable. Item
12 listed in the proposed definition of first aid was "removal of
foreign bodies not embedded in the eye if only irrigation or removal with a
cotton swab is required." The effect of including this item in the list
of first aid treatments would be to make any case involving a foreign body
embedded in the eye a recordable injury. The
Recordkeeping Guidelines listed "removal of foreign bodies
embedded in the eye" as medical treatment and "removal of foreign
bodies not embedded in eye if only irrigation is required" as first aid
(Ex. 2, p. 43). In subsequent letters of interpretation, the use of a cotton
swab to remove a foreign body from the eye was interpreted to be first aid;
injuries requiring any removal method other than irrigation or a cotton swab
made the case recordable (Ex. 70: 92). OSHA
received few comments on this first aid item. NIOSH stated that any case
involving a foreign body in the eye should be recorded, because "even
though removal of a foreign body from the eye may be a first aid procedure,
the presence of a work-related foreign body in the eye should be recordable.
These procedures should not be considered first aid" (Ex. 15: 407). The
Ford Motor Company asked OSHA to clarify that a foreign body "embedded
in or adhered to" the eye and removed by the methods proposed would be
considered first aid. Ford added that "[t]he use of a prescription
medication to anesthetize the eye for a diagnostic procedure, an assessment
procedure, or flushing to remove a loose foreign body should not be
considered medical treatment" (Ex. 15: 347). Countrymark Cooperative,
Inc. asked that the definition of this item be expanded to include other
means of removal, stating: "We suggest wording such as * * * Removal of
foreign bodies not embedded in the eye if only irrigation or simple removal
techniques are required, or comparable" (Ex. 15: 9). In
the final rule, OSHA has included as item J "Removing foreign bodies
from the eye using only irrigation or a cotton swab." OSHA believes that
it is often difficult for the health care professional to determine if the
object is embedded or adhered to the eye, and has not included this suggested
language in the final rule. In all probability, if the object is embedded or
adhered, it will not be removed simply with irrigation or a cotton swab, and
the case will be recorded because it will require additional treatment. OSHA
believes that it is appropriate to exclude those cases from the Log that
involve a foreign body in the eye of a worker that can be removed from the
eye merely by rinsing it with water (irrigation) or touching it with a cotton
swab. These cases represent minor injuries that do not rise to the level
requiring recording. More significant eye injuries will be captured by the
records because they involve medical treatment, result in work restrictions,
or cause days away from work. Item
13, the last item listed in the proposed definition of first aid, was
"Removal of splinters or foreign material from areas other than the eyes
by irrigation, tweezers, cotton swabs or other simple means." The Recordkeeping
Guidelines distinguished between foreign body removal cases on the basis
of the complexity of the removal technique used. According to the Guidelines,
the "removal of foreign bodies from a wound if the procedure is
complicated because of depth of embedment, size or location" was medical
treatment, while "removal of foreign bodies from wound, if procedure is
uncomplicated, and is, for example, by tweezers or other simple
technique" was first aid (Ex. 2, p. 43). OSHA
received one comment specific to this proposed first aid item. The Muscatine
Iowa Chamber of Commerce Safety Committee stated "The list appears to be
very inclusive of what items are currently understood as first aid
treatments. Our only concern is the ambiguous ending of Number 13. "* *
* or other simple means." This should be further defined. Change number
13 to read: "Removal of splinters or foreign material from areas other
than the eyes by irrigation, tweezers, cotton swabs or by excision not to
exceed the depth of the outer layer of skin" (Ex. 15: 87). In
the final rule, OSHA has decided to retain item 13 essentially as proposed,
and this first aid treatment appears as item K on the first aid list. The
inclusion of the phrase "other simple means" will provide some
flexibility and permit simple means other than those listed to be considered
first aid. Cases involving more complicated removal procedures will be
captured on the Log because they will require medical treatment such as
prescription drugs or stitches or will involve restricted work or days away
from work. OSHA believes that cases involving the excision of the outer layer
of skin are not appropriately considered first aid, as suggested by the
Muscatine Iowa Chamber of Commerce; excision of tissue requires training and
the use of surgical instruments. Additions
to the First Aid List Suggested by Commenters In
addition to comments about the first aid items OSHA proposed to consider
first aid, a number of commenters asked for additional clarifications or
recommended additions to the first aid list. The items suggested included
exercise, chiropractic treatment, massage, debridement, poison ivy, bee
stings, heat disorders, and burns. Exercise:
Several commenters requested adding exercise, performed either at home or at
work, to the list (see, e.g., Exs. 15: 201, 308, 349, 396). For
example, Caterpillar suggested that OSHA "[a]dd a listing for range of
motion exercises and minor physical therapy performed at home" (Ex. 15:
201). These comments described exercises that amount to self-administered
physical therapy, and are normally recommended by a health care professional
who trains the worker in the proper frequency, duration and intensity of the
exercise. Physical therapy treatments are normally provided over an extended
time as therapy for a serious injury or illness, and OSHA believes that such
treatments are beyond first aid and that cases requiring them involve medical
treatment. Chiropractic treatment: A few commenters believe that chiropractic treatment should be
treated as first aid (see, e.g., Exs. 15: 154, 299, 396). For example,
the Sandoz Corporation stated "[i]t would simplify our record keeping if
there were better definition of the use of chiropractors. Is one visit
counted or do you have to have multiple visits" (Ex. 15: 299). OSHA does
not distinguish, for recordkeeping purposes, between first aid and medical
treatment cases on the basis of number of treatments administered. OSHA also
does not distinguish between various kinds of health care professionals,
assuming they are operating within their scope of practice. If a chiropractor
provides observation, counseling, diagnostic procedures, or first aid
procedures for a work-related injury or illness, the case would not be
recordable. On the other hand, if a chiropractor provides medical treatment
or prescribes work restrictions, the case would be recordable. Massage therapy: The Union Carbide company recommended the addition of massages and
prescribed physical therapy to the first aid list (Ex. 15: 396). OSHA
believes that massages are appropriately considered first aid and has
included them as item M in the final rule's first aid list. However, physical
therapy or chiropractic manipulation are treatments used for more serious
injuries, and are provided by licensed personnel with advanced training and
therefore rise to the level of medical treatment beyond first aid. Debridement:
Several commenters recommended that OSHA include debridement as a first aid
treatment (see, e.g., Exs. 15: 201, 332, 349, 387). Debridement is the
surgical excision, or cutting away, of dead or contaminated tissue from a
wound. The Recordkeeping Guidelines listed "cutting away dead
skin (surgical debridement)" as an example of medical treatment (Ex. 2,
p. 43). The Caterpillar Company recommended that OSHA "[a]dd to the
[first aid] listing provisions for the minor removal of nonviable tissue as
first aid treatment" (Ex. 15: 201). OSHA
has decided not to include debridement as a first aid treatment. This
procedure must be performed by a highly trained professional using surgical
instruments. Debridement is also usually performed in conjunction with other
forms of medical treatment, such as sutures, prescription drugs, etc. Intravenous (IV) administration of glucose and saline: Two commenters (Exs. 15: 154,
395) argued that the intravenous administration of saline (salt) and glucose
(sugar) should be considered first aid. In former letters of interpretation,
OSHA considered these treatments first aid in injury cases (see, e.g.,
Exs. 15: 154, 395). In the final rule, however, OSHA has decided not to
include the IV administration of fluids on the first aid list because these
treatments are used for serious medical events, such as post-shock,
dehydration or heat stroke. The administration of IVs is an advanced
procedure that can only be administered by a person with advanced medical
training, and is usually performed under the supervision of a physician. The
Union Carbide Corporation (Ex. 15: 396) also recommended three additions to
the first aid list: UV treatment of blisters, rashes and dermatitis;
acupuncture, when administered by a licensed health care professional; and
electronic stimulation. After careful consideration, OSHA has decided not to
include these treatments as first aid. Each of these treatments must be
provided by a person with specialized training, and is usually administered
only after recommendation by a physician or other licensed health care
professional. Several
commenters asked that treatments for two specific types of disorders be added
to the list: heat disorders and burns. OSHA has not added these types of
conditions to the first aid list because the list includes treatments rather
than conditions. However, OSHA has added fluids given by mouth for the relief
of heat disorders to the list, in response to comments received. Two
commenters asked about the recording of heat disorders and how they relate to
the definition of first aid and medical treatment. Union Carbide recommended
an addition to the first aid list to state "fluids taken internally for
heat stress" (Ex. 15: 396). The Arizona Public Service Company remarked:
"Recordability of heat stress and heat rash should be addressed based on
classification of treatment (first aid vs. medical)" (Ex. 15: 247).
Under OSHA's former recordkeeping system, heat stress was recordable as an
occupational illness because it results from non-instantaneous exposures that
occur over time and all occupational illnesses, including minor ones, were
considered recordable. In
the final rule, OSHA agrees with Union Carbide that drinking fluids for the
relief of heat disorders is a first aid rather than medical treatment and
item N on the final first aid list is "drinking fluids for relief of
heat stress." However, as discussed above, OSHA believes that more
extensive treatment, including the administration of fluids by intravenous
injections (IV), are medical treatment, and more serious cases of heat
disorders involving them must be entered into the records. In addition, any
diagnosis by a physician or other licensed health care professional of heat
syncope (fainting due to heat) is recordable under paragraph 1904.7(b)(6),
Loss of Consciousness. Burns:
Many commenters recommended that OSHA include the treatment of burns on the
first aid list (see, e.g., Exs. 45, 170, 260, 262, 265, 288, 301, 401,
414, 443). Teepak Inc. stated "[s]econd degree burns treated by first
aid measures only, with no infection or complication or prescription
medication, should be considered first aid" (Ex. 15: 45). The Georgia
Power Company argued that "[t]reatment of all first degree burns should
be added to the list of first aid treatments because they are minor injuries
that are exempt from the requirements of the Act. Omission of first degree
and second degree burns receiving only first aid treatment from this list is
inconsistent with the recording criteria listed for burns of the skin in
[proposed] Appendix B" (Ex. 15: 260). The Chemical Manufacturers
Association recommended that OSHA add "[b]urns that require only
one-time treatment. Subsequent observations and changing of bandages does not
constitute medical treatment" (Ex. 15: 301). The
former Recordkeeping Guidelines listed the treatment of first degree
burns as an example of first aid treatment and did not consider such
treatment to be recordable (Ex. 2, p. 43). In the final rule, OSHA has
decided not to include burn treatments on the first aid list. If first,
second, or third degree burns result in days away from work, restricted work
activity, or medical treatment beyond first aid, such as prescription drugs
or complex removal of foreign material from the wound, they will rise to the
level that requires recording. Taking
this approach means that burns will be treated just as other types of injury
are, i.e., minor burn injuries will not be recordable, while more
serious burns will be recorded because they will involve medical treatment.
For example, a small second degree burn to the forearm that is treated with
nothing more than a bandage is not recordable. A larger or more severe second
degree burn that is treated with prescription creams or antibiotics, or
results in restricted work, job transfer, or days away from work is recordable.
The vast majority of first degree burns and minor second degree burns will
not be recorded because they will not meet the recording criteria, including
medical treatment. However, more serious first and second degree burns that
receive medical treatment will be recorded, and third degree burns should
always be recorded because they require medical treatment. Miscellaneous
First Aid and Medical Treatment Issues The
American Association of Occupational Health Nurses (AAOHN) was concerned that
the public might interpret the fact that treatments were listed as first aid
to mean that they did not have to be administered, in some cases, by a health
care professional: OSHA
must clarify that categorizing certain actions as first aid does not
necessarily imply that these actions can be delegated to a non-health care
professional. While a list of actions considered first aid treatment will
offer guidance for employers in determining recordability of incidents,
situations exist that will require the professional judgment of a health care
professional. One example is the administration of tetanus/diphtheria shots.
While it is appropriate to consider these treatments first aid for
recordability, injections pose issues that require the judgment and expertise
of a health care professional. One potential hazard of this treatment is the
risk of side effects. The ability to identify the reaction and take
appropriate measures should be handled by a qualified health care
professional (Ex. 15: 181). OSHA
agrees with the AAOHN that certain treatments and interventions require the
professional judgment of a health care professional. The Agency believes that
these matters are best left to state agencies and licensing boards, and the
final rule's definition of health care professional (see Subpart G) makes
this clear. The
State of New York expressed a concern about the possible confusion some
employers might experience between OSHA's requirements and those of the state
workers' compensation systems. The New York Workers' Compensation Board
stated: The
proposed rule contains a broad list of treatments which will qualify as first
aid, with less emphasis on the number of treatments or the resulting amount
of lost time from work. It is possible that many of the items listed in the
OSHA rule as first-aid treatments which do not require reporting under the
proposed OSHA standard (i.e. use of splints, drilling a nail in a
hematoma, use of compresses and non-prescription medications), may still
require reporting under the WCL because in a particular case the treatment
qualifies as medical treatment or because it has caused lost time from work
beyond the working day. The only problem would be if employers, in complying
with proposed OSHA requirements, failed to continue to comply with New York's
recording and reporting requirements (Ex. 15: 68). OSHA's
reporting requirements do not in any way interfere with or have any impact on
state workers compensation reporting requirements. Employers are required to
record certain injuries and illnesses under the OSHA recordkeeping regulation
and to observe certain other requirements under workers' compensation law.
The two laws have separate functions: workers' compensation is designed to
compensate injured or ill workers, while the OSH Act is designed to prevent
injuries and illnesses and to create a body of information to improve
understanding of their causes. Thus, certain injuries and illnesses may be
reportable under state workers' compensation law but not under the OSHA
recordkeeping rule, and certain injuries and illnesses may be reportable
under the OSHA rule but not under one or more workers' compensation statutes.
OSHA notes that employers have been following the requirements of both
systems for years, and have generally not experienced difficulty in doing so. Several
commenters remarked on the need for OSHA to update the first aid list in the
future (see, e.g., Exs. 234, 247, 384, 407). One commenter remarked:
"The suggested first aid list adds and clarifies some treatments as
first aid. There should be a mechanism for adding or removing treatments to
first aid and medical treatment lists as new information becomes
available" (Ex. 15: 234). The Akzo Nobel Company suggested that
"[w]ith the assistance of occupational physicians, updates could be made
quarterly and distributed via the Internet" (Ex. 15: 384). The National
Institute for Occupational Safety and Health (NIOSH) recommended "[t]he
first aid list, however, should be included as an appendix, rather than in
the rule itself, in order to allow revisions to be made more easily as
medical practice evolves" (Ex. 15: 407). In
response, OSHA notes that the list is part of a definition that sets
mandatory recording and reporting requirements and is a part of the
regulation itself. Including the first aid list as a non-mandatory appendix
would provide additional flexibility for future updates, but doing so would
not meet the purposes for which the list is intended. The list is mandatory,
and making it non-mandatory would only introduce additional confusion about
what is or is not to be entered into the records. As a result, the mechanism
OSHA will use to update or modify the first aid list will be to pursue a
future rulemaking, if and when such a rulemaking is needed. OSHA will
continue to issue letters of interpretation to help employers understand the
requirements as they apply to specific situations. Paragraph
1904.7(b)(6) Loss of Consciousness The
final rule, like the former rule, requires the employer to record any
work-related injury or illness resulting in a loss of consciousness. The
recording of occupational injuries and illnesses resulting in loss of
consciousness is clearly required by Sections 8(c) and 24 of the OSH Act. The
new rule differs from the former rule only in clearly applying the loss of
consciousness criterion to illnesses as well as injuries. Since the former
rule required the recording of all illnesses, illnesses involving loss of
consciousness were recordable, and thus OSHA expects that this clarification
will not change recording practices. Thus, any time a worker becomes
unconscious as a result of a workplace exposure to chemicals, heat, an oxygen
deficient environment, a blow to the head, or some other workplace hazard
that causes loss of consciousness, the employer must record the case. Very
few commenters addressed the issue of loss of consciousness. Three commenters
asked OSHA to make sure that these cases are not recordable unless they are
the result of a work-related injury or illness (see, e.g., Exs. 15:
102, 159, 176). The American Frozen Food Institute (AFFI) stated that
"[l]oss of consciousness should not be reported unless it is the clear
result of a work related injury or illness" (Ex. 15: 102). The Chemical
Manufacturers Association added "OSHA must clearly indicate in the final
recordkeeping rule that loss of consciousness must be induced by an
occupational exposure. For example, if someone faints at work due to
pregnancy or has an epileptic seizure, such loss of consciousness should not
be recordable" (Ex. 15: 176). OSHA
agrees with these commenters that, in order to be a recordable event, a loss
of consciousness must be the result of a workplace event or exposure. Loss of
consciousness is no different, in this respect, from any other injury or
illness. The exceptions to the presumption of work-relationship at §
1904.5(b)(2)(ii) allow the employer to exclude cases that "involve signs
or symptoms that surface at work but result solely from a non-work-related
event or exposure that occurs outside the work environment." This exception
allows the employer to exclude cases where a loss of consciousness is due
solely to a personal health condition, such as epilepsy, diabetes, or
narcolepsy. The
American Crystal Sugar Company (Ex. 15: 363) raised the issue of phobias
resulting in loss of consciousness: I
would also like to suggest exempting an employee's loss of consciousness
based on a fear-based phobia, i.e., fainting at the sight of blood.
Occasionally an OSHA regulation may require blood tests, such as checking
lead levels in blood. There are a few employees that will lose consciousness
at the sight of a needle. These phobias are not limited to medical
procedures, but may include spiders, snakes, etc. In several of our
factories, the occupational health nurse will administer tetanus boosters as
a service to our employees. Employees that have a phobia about injections can
(and do) lose consciousness, which now makes what was intended as a service
an OSHA recordable accident. The
final rule does not contain an exception for loss of consciousness associated
with phobias or first aid treatment. OSHA notes, however, that the exception
at paragraph 1904.5(b)(2)(iii) allows the employer to rebut the presumption
of work relationship if "the injury or illness results solely from voluntary
participation in a wellness program or in a medical, fitness, or recreational
activity such as blood donation, physical, flu shot, exercise class,
racquetball, or baseball." This exception would eliminate the recording
of fainting episodes involving voluntary vaccination programs, blood
donations and the like. However, episodes of fainting from mandatory medical
procedures such as blood tests mandated by OSHA standards, mandatory
physicals, and so on would be considered work-related events, and would be recordable
on the Log if they meet one or more of the recording criteria. Similarly, a
fainting episode involving a phobia stemming from an event or exposure in the
work environment would be recordable. The
Union Carbide Corporation (Ex. 15: 396) asked OSHA to be more precise about
the definition of loss of consciousness, stating that "[m]ost people
generally understand this term without a definition, but it can be open to
interpretation. For example, is 'feeling woozy' for a few seconds considered
to be a loss of consciousness? Perhaps OSHA should define the term to avoid
any confusion." In this final rule, OSHA has not included a separate
definition for the term "loss of consciousness." However, the
language of paragraph 1904.7(b)(6) has been carefully crafted to address two
issues. First, the paragraph refers to a worker becoming
"unconscious," which means a complete loss of consciousness and not
a sense of disorientation, "feeling woozy," or a other diminished
level of awareness. Second, the final rule makes it clear that loss of
consciousness does not depend on the amount of time the employee is
unconscious. If the employee is rendered unconscious for any length of time,
no matter how brief, the case must be recorded on the OSHA 300 Log. Paragraph
1904.7(b)(7) Recording Significant Work-Related Injuries and Illnesses
Diagnosed by a Physician or Other Licensed Health Care Professional Paragraph
1904.7(b)(7) of this final rule requires the recording of any significant
work-related injury or illness diagnosed by a physician or other licensed
health care professional. Paragraph 1904.7(b)(7) clarifies which significant,
diagnosed work-related injuries and illnesses OSHA requires the employer to
record in those rare cases where a significant work-related injury or illness
has not triggered recording under one or more of the general recording
criteria, i.e, has not resulted in death, loss of consciousness, medical
treatment beyond first aid, restricted work or job transfer, or days away
from work. Based on the Agency's prior recordkeeping experience, OSHA
believes that the great majority of significant occupational injuries and
illnesses will be captured by one or more of the other general recording
criteria in Section 1904.7. However, OSHA has found that there is a limited
class of significant work-related injuries and illnesses that may not be
captured under the other § 1904.7 criteria. Therefore, the final rule
stipulates at paragraph 1904.7(b)(7) that any significant work-related
occupational injury or illness that is not captured by any of the general
recording criteria but is diagnosed by a physician or other licensed health
care professional be recorded in the employer's records. Under
the final rule, an injury or illness case is considered significant if it is
a work-related case involving occupational cancer (e.g.,
mesothelioma), chronic irreversible disease (e.g., chronic beryllium
disease), a fractured or cracked bone (e.g., broken arm, cracked rib),
or a punctured eardrum. The employer must record such cases within 7 days of
receiving a diagnosis from a physician or other licensed health care
professional that an injury or illness of this kind has occurred. As
explained in the note to paragraph 1904.7(b)(7), OSHA believes that the great
majority of significant work-related injuries and illnesses will be recorded
because they meet one or more of the other recording criteria listed in §
1904.7(a): death, days away from work, restricted work or job transfer,
medical treatment beyond first aid, or loss of consciousness. However, there
are some significant injuries, such as a punctured eardrum or a fractured toe
or rib, for which neither medical treatment nor work restrictions may be
administered or recommended. There
are also a number of significant occupational diseases that progress once the
disease process begins or reaches a certain point, such as byssinosis,
silicosis, and some types of cancer, for which medical treatment or work
restrictions may not be recommended at the time of diagnosis, although
medical treatment and loss of work certainly will occur at later stages. This
provision of the final rule is designed to capture this small group of
significant work-related cases. Although the employer is required to record
these illnesses even if they manifest themselves after the employee leaves
employment (assuming the illness meets the standards for work-relatedness
that apply to all recordable incidents), these cases are less likely to be
recorded once the employee has left employment. OSHA believes that work-related
cancer, chronic irreversible diseases, fractures of bones or teeth and
punctured eardrums are generally recognized as constituting significant
diagnoses and, if the condition is work-related, are appropriately recorded
at the time of initial diagnosis even if, at that time, medical treatment or
work restrictions are not recommended. As
discussed in the Legal Authority section, above, OSHA has modified the
Agency's prior position so that, under the final rule, minor occupational
illnesses no longer are required to be recorded on the Log. The requirement
pertaining to the recording of all significant diagnosed injuries and
illnesses in this paragraph of the final rule, on the other hand, will ensure
that all significant (non-minor) injuries and illnesses are in fact captured
on the Log, as required by the OSH Act. Requiring significant cases involving
diagnosis to be recorded will help to achieve several of the goals of this
rulemaking. First, adherence to this requirement will produce better data on
occupational injury and illness by providing for more complete recording of
significant occupational conditions. Second, this requirement will produce
more timely records because it provides for the immediate recording of
significant disorders on first diagnosis. Many occupational illnesses
manifest themselves through gradual onset and worsening of the condition. In
some cases, a worker could be diagnosed with a significant illness, such as
an irreversible respiratory disorder, not be given medical treatment because
no effective treatment was available, not lose time from work because the
illness was not debilitating at the time, and not have his or her case
recorded on the Log because none of the recording criteria had been met. If
such a worker left employment or changed employers before one of the other
recording criteria had been met, this serious occupational illness case would
never be recorded. The requirements in paragraph 1904.7(b)(7) remedy this
deficiency and will thus ensure the capture of more complete and timely data
on these injuries and illnesses. The
provisions of paragraph 1904.7(b)(7) are an outgrowth of Appendix B of the
proposed rule, which included provisions for the recording of individual
conditions, such as blood lead levels, musculoskeletal disorders, and various
respiratory ailments. As OSHA explained in the preamble to the proposed rule
(61 FR 4039-4042), the proposed requirements were intended to ensure the
recording of significant non-fatal cases that did not meet the general
criteria (days away, restricted work, medical treatment, etc.). Proposed
Appendix B has not been included in the final rule, which instead includes
additional separate criteria for several of the conditions proposed to be
included in Appendix B; these criteria, which cover tuberculosis cases,
hearing loss cases, and so on, appear in the final rule at § 1904.8 through §
1904.12. The requirements at paragraph 1904.7(b)(7) of the final rule, which
require the recording of significant injuries and illnesses not meeting one
or more of the general recording criteria, will ensure the recording of the
small number of significant conditions that would have been covered by
proposed Appendix B and are not elsewhere addressed in the final rule. Thus,
OSHA believes that cases involving the conditions listed in proposed Appendix
B will be captured either by the requirements in this significant diagnosed
case section or by the other general recording criteria. In
developing the text of paragraph 1904.7(b)(7) of the final rule, OSHA reviewed
the following questions as they related to proposed Appendix B. Each of these
questions, and the comments received, are discussed in greater detail below:
(1) Are additional recording criteria beyond loss of consciousness, medical
treatment, restricted work, job transfer, days away, or death needed in the
final rule?; (2) if so, should these additional criteria address a finite
list of specific conditions or address a broader range of disorders?; (3) how
should the agency define "significant" injuries and illnesses?; and
(4) how should the final rule ensure the work-relatedness of these cases? Are
Additional Recording Criteria Needed? Many
commenters viewed proposed Appendix B as an unnecessary addition to the other
general recording criteria and argued that OSHA should use the general
criteria listed in the OSH Act itself for most if not all of the listed
conditions (see, e.g., Exs. 15: 52, 146, 200, 203, 219, 260, 262, 265,
271, 272, 303, 313, 329, 348, 352, 353, 368, 401, 427). For example, the Atlantic
Richfield Company (ARCO) stated that: [t]his
broadening of the recordability criteria particularly as detailed in
[proposed] mandatory Appendix B dilutes the significant data with marginal
data and does not, in our view, fit with OSHA's stated goals for improved Log
accuracy and utility. ARCO believes that for almost all of these specific
exposures, the appropriate data can be captured through the normal
performance criteria of whether the condition or exposure has caused a day
away from work, restriction on activity, or resulted in medical treatment. It
is, therefore, our opinion that Appendix B is unnecessary and appropriate for
deletion (Ex. 15: 329). However,
other commenters saw a need for and supported the inclusion of additional
recording criteria in the final rule (see, e.g., Exs. 15: 201, 301,
304, 318). For example, the National Federation of Independent Business
(NFIB) agreed that "[t]here are some conditions which are serious enough
to be recorded, but could escape the proposed recordkeeping criteria of
medical treatment, restricted or loss workdays or job transfer" (Ex. 15:
304). Caterpillar agreed "[w]ith the basic concept proposed in Appendix
B that additional guidelines are needed to capture some injuries and
illnesses serious enough to be recorded, which may not be captured by the
basic recordkeeping criteria" (Ex. 15: 201). OSHA
agrees with those commenters who supported the inclusion in the final rule of
an additional mechanism to ensure the capture of significant work-related
injuries and illnesses that are diagnosed by a physician or other licensed
health care professional but do not, at least at the time of diagnosis, meet
the criteria of death, days away from work, restricted work or job transfer,
medical treatment beyond first aid, or loss of consciousness. The recording
of all non-minor injuries and illnesses is consistent with the OSH Act
(see the Legal Authority section) and has been the intent of the
recordkeeping system for many years. The primary goal of the requirement at
paragraph 1904.7(b)(7) is to produce more accurate and complete data on
non-minor work-related injuries and illnesses. Because the number of
significant work-related injuries and illnesses may not be captured by one or
more of the other general recording criteria, OSHA finds that this additional
criterion is needed. However, OSHA believes that most cases will be captured
by the general recording criteria. Should
Additional Criteria Address a Finite List of Specific Conditions or Address a
Broader Range of Disorders? Proposed
Appendix B was composed of a finite list of disorders and their associated
recording criteria. A number of commenters were concerned that an inclusive
list would overlook other conditions that did not meet the general recording
criteria and were not included in proposed Appendix B. For example, OxyChem
wrote: [f]or
example, aniline is a substance having specific effects from occupational
exposure, but it is not listed in Appendix B. How will occupational illness
cases related to aniline be treated? Under OSHA's proposal, employers will
apply the general recordability criteria to make a decision, and the case
will very likely not be recorded unless it involves medical treatment, loss
of consciousness, etc. (Ex. 15: 386) This
issue was also raised by the International Chemical Workers, who wrote that
"[a]ppendix B limits the types of illnesses which are recordable. It
needs to be textually and visually clear that this list is not an all
inclusive list of recordable illnesses " (Ex. 15: 415). Additionally,
the American Industrial Hygiene Association had the following thoughts on
this subject: [a]n
addition should be made to the end of Appendix B to clarify and expand on the
recording of new or emerging occupational illnesses as introduced by OSHA in
Appendix B, second paragraph at the end of page 4063: "Conditions not
included in this Appendix that otherwise meet the criteria in the §
1904.4.(c) must be recorded." Medical diagnoses, including laboratory
and diagnostic tests should be the principal criteria for recording
occupational illnesses. The
above quotation "Conditions not included in this Appendix * * * must be
recorded" should be reworded to include the statement "including
symptomology with a clear workplace link" (Ex. 15: 153). OSHA
generally agrees with these points. Limiting the recording of non-minor
occupational injuries and illnesses to a finite list runs counter to the goal
of this rule, which is to capture comprehensive data on all non-minor
work-related injuries and illnesses, and thus including such a list would not
meet the Agency's statutory mandate to collect such data. OSHA believes there
will be very few injuries and illnesses that are not captured by the general
recording criteria. For example, non-minor acute illnesses, such as the skin
disorders potentially associated with aniline exposure, will be captured by
the other criteria, particularly medical treatment beyond first aid,
restricted work or job transfer, or days away from work. However, to address
the gap in case capture presented by significant injury and illness cases
that escape the general recording criteria, OSHA is requiring employers to
record cases of chronic, irreversible disease under the § 1904.7(b)(7)
criterion. This means that if long-term workplace exposure to aniline results
in a chronic, irreversible liver or kidney disease, the case would be
recordable at the time of diagnosis, even if no medical treatment is
administered at that time and no time is lost from work. The regulatory text
of paragraph 1904.7(b)(7) limits the types of conditions that are recordable,
however, to significant diagnosed injury and illness cases, which are defined
as cancer, chronic irreversible diseases, fractured or cracked bones, and
punctured eardrums. How
Should the Agency Define "Significant" Injury or Illness? Although
there was considerable support in the record for the final rule to include a
list of conditions that might not be captured under the general recordkeeping
criteria, there was far less agreement among commenters on the specific
conditions that should be listed. Many commenters agreed with Amoco, which
testified that "[t]he criteria currently listed in the proposed rule
would require recording of signs, symptoms and laboratory abnormalities;
situations which are not disabling, serious, or significant" (Ex. 22).
Waste Management, Inc., commented that "[t]he definition of an illness
[in the proposal] or injury refers to an adverse change in the individual.
This is interpreted to mean a change which is permanent or a change which is
clinically demonstrable to be adverse to the individual as a result of
occupational exposure in the workplace. Some of the guidance provided in
Appendix B does not meet these criteria" (Ex. 15: 389). The Chemical
Manufacturers Association suggested that only those conditions "[w]hose
seriousness is approximately equal to that of conditions captured by
traditional criteria" be included in Appendix B (Ex. 15: 301), and the
Dupont Company proposed that the conditions listed in Appendix B
"[i]nclude only situations that cause a permanent change to the body
structure where medical treatment may not be given" (Ex. 15: 348).
Dupont also stated that "[O]SHA should provide scientific evidence that
a change in a lab reading [laboratory tests results were also included in
proposed Appendix B] is the equivalent of a serious or significant change to
the body structure" (Ex. 15: 348). Other commenters such as the Marathon
Oil Company questioned whether OSHA had the legal authority "[t]o
require employers to record these non-serious exposures. The OSHA proposed
criteria do not represent serious, significant or disabling
injuries/illnesses as required by Section 24(a) of the Act" (Ex. 15:
308). OSHA
believes that the conditions that are required to be recorded under §
1904.7(b)(7) of the final rule represent significant occupational injuries
and illnesses as described in the OSH Act. Some clearly significant injuries
or illnesses are not amenable to medical treatment, at least at the time of
initial diagnosis. For example, a fractured rib, a broken toe, or a punctured
eardrum are often, after being diagnosed, left to heal on their own without
medical treatment and may not result in days away from work, but they are
clearly significant injuries. Similarly, an untreatable occupational cancer
is clearly a significant injury or illness. The second set of conditions
identified in paragraph 1904.7(b)(7), chronic irreversible diseases, are
cases that would clearly become recordable at some point in the future
(unless the employee leaves employment before medical treatment is provided),
when the employee's condition worsens to a point where medical treatment,
time away from work, or restricted work are needed. By providing for
recording at the time of diagnosis, paragraph 1904.7(b)(7) of the final rule
makes the significant, work-related condition recordable on discovery, a
method that ensures the collection of timely data. This approach will result
in better injury and illness data and also is likely to be more straightforward
for employers to comply with, since there is no further need to track the
case to determine whether, and at what point, it becomes recordable. The
core of the recording requirement codified at § 1904.7(b)(7) is the
employer's determination that a "significant" injury or illness has
been diagnosed. The Agency's former Recordkeeping Guidelines addressed
this issue in interpretations about "non minor" injuries that did
not meet the general recording criteria of death, days away, restricted work,
transfer to another job, medical treatment or loss of consciousness. The Guidelines
stated (Ex. 2, p. 42) that: The
distinction between medical treatment and first aid depends not only on the
treatment provided, but also on the severity of the injury being treated. First
aid is: (1) Limited to one-time treatment and subsequent observation; and (2)
involves treatment of only minor injuries, not emergency treatment of serious
injuries. Injuries are not minor if: (a)
They must be treated only by a physician or licensed medical personnel; (b)
They impair bodily function (i.e., normal use of senses, limbs, etc.); (c)
They result in damage to the physical structure of a nonsuperficial nature (e.g.,
fractures); or (d)
They involve complications requiring followup medical treatment. Many
commenters on the proposal simply stated that the system must include all
serious, significant or disabling injuries, and exclude cases that did not
rise to that level (see, e.g., Exs. 25; 15: 55, 135, 144, 154, 158,
162, 165, 193, 201, 206, 207, 211, 212, 220, 228, 238, 240, 243, 252, 253,
257, 258, 261, 264, 267, 272, 274, 276, 286, 293, 303, 305, 306, 309, 318,
320, 346, 354, 358, 365, 368, 375, 382, 383, 395, 397, 408, 412, 420, 421,
427, 434). The comments of the American Petroleum Institute (API) reflect
this view: "[A]PI is strongly opposed to any provision which would
require a case to be recorded which is not serious or which is not likely to
become serious. API strongly disagrees that non-serious subjective signs,
symptoms, abnormal health test results, or evidence of exposure in and of
themselves should be recorded on the OSHA log -- unless the case otherwise
meets one of the traditional criteria (e.g., medical treatment, et
al.) or results in, or is expected to result in a serious impairment"
(Ex. 15: 375). Many
comments believed that the recordability of occupational illnesses should
rely on the diagnosis of a health care professional. For example, the U.S.
Small Business Administration recommended that "[a] recordable incident
under the [proposed] 'Specific Conditions' should be subject to a health care
provider's clinical diagnosis" (Ed. 15: 67); Fort Howard recommended
that "[t]he Company disagrees with the [proposed] Mandatory Appendix B
concept particularly in light of the statement in the Proposal that an
employer can not rely solely on the clinical diagnosis of an injury or
illness by a physician. Fort Howard recommends that an employer be allowed to
specifically rely on the conclusions of those trained in this field, namely
physicians" (Ex. 15: 194); and Country Mark Cooperative recommended that
" [i]f an illness is diagnosed by a medical provider as linked to the
cause agent, then it would be recorded as 'otherwise recordable' until such
time as other recordable criteria are met such as days unable to work"
(Ex. 15: 9). BASF commented that "[proposed] Appendix B should not
require the recording of merely signs, symptoms, or laboratory abnormalities.
Instead, it should also include objective findings or observations on the
part of health care providers regarding the diagnosis of a serious illness or
effect not otherwise subject to recording requirements" (Ex. 15: 403). Only
a few commenters suggested methods for differentiating between serious and
non-serious cases, in the context of conditions that should be listed in the
final rule (see, e.g., Exs. 15: 135, 176, 193, 199, 258, 375, 396).
The API suggested that, if OSHA identifies a need to define "disabling,
serious or significant" explicitly, the Agency should consider the
following criteria: [a]ny
other case which results in a serious impairment or significant injury for
which no effective treatment exists, or involves
a diagnosis of a condition which in time is expected to result in a serious
impairment (or death), e.g., certain asbestos-related diseases; or involves
evidence of a chemical exposure at biological levels where criteria in an
OSHA standard requires medical removal (Ex. 15: 375). Elsewhere
in their comments, the API recommended criteria for selecting which
conditions would be listed in proposed Appendix B as follows: [t]he
purpose of this appendix [proposed Appendix B] is to provide for the
mandatory recording of occupational injuries and illnesses which are also
serious or significant -- but which do not immediately result in medical
treatment, restricted work * * * Such
cases fall into three broad categories. They occur when the injury or illness
either Results
in a serious impairment (unable to perform any normal life activity such as
walking, eating, thinking, talking, breathing, seeing, smelling, hearing,
driving a car. Incontinence and impotence would also be included) Involves
a diagnosis of a condition which in time is expected to result in serious
impairment (or death), e.g. certain asbestos related diseases, or Involved
evidence of a chemical exposure at biological levels where criteria in an
OSHA standard requires medical removal (Ex. 15: 375). Adapto,
Inc. (Ex. 15: 258) focused on the major life activity concept, stating that: [a]s
mentioned previously, Congress intended that the statistical data compiled
under this rule be limited to cases involving disabling, serious, or
significant injuries or illness. Adapto, Inc. believes this phrase generally
refers to a work-related condition that results in a physical or mental
impairment that substantially limits a major life activity. Union
Carbide (Ex. 15: 396) urged that the following factors be used for
determining the conditions that should be included in the final rule: Serious
illnesses caused by exposures which are chronic and cumulative in nature Serious
illnesses with a long latency period between exposure and recognition of the
significant illness condition Serious
illnesses which are likely to result in significant impairment Serious
illnesses without a known or widely recognized medical treatment until
advanced stages. The
Chemical Manufacturing Association (Ex. 15: 176) restated the same factors
articulated by Union Carbide and added another factor: "[s]erious
illnesses that are not treatable." The NYNEX Corporation (Ex. 15: 199),
the National Broiler Council (NBC), and the National Turkey Federation (Ex.
15: 193), in identical comments, focused on the idea of cases with an
expectation of serious impairment or death, stating: [w]e
do recognize, however, that there are some cases that do not meet this
criteria that do have the expectation of resulting in serious impairment or
even death. We are in agreement that cases of this potential seriousness
should be recorded when they are diagnosed by a competent physician or
medical professional as work-related. The
Macon Corporation (Ex. 15: 135) suggested using a material impairment test,
suggesting that "[w]e need to establish an effective system for the
collection of data on serious work related injuries and illnesses which, at
the time of recording, represent a material impairment to the health or
functional capacity [of the injured or ill worker]." OSHA has not
adopted the material impairment alternative in the final rule because the
term has specific meaning in the context of OSHA rulemaking. Section 6(b)(5)
of the Act, which sets forth the criteria for promulgating standards dealing
with toxic substances or harmful physical agents, states that OSHA shall
"set the standard which most adequately assures, to the extent feasible,
on the basis of the best available evidence, that no employee will suffer material
impairment of health or functional capacity even if such employee has
regular exposure to the hazard dealt with by such standard for the period of
his working life (emphasis added)." OSHA believes that use of this term
in the recordkeeping rule could cause confusion among employers. In
the final rule, OSHA has adopted an approach similar to that suggested by the
American Petroleum Institute, i.e., focusing on two types of injury
and illness: those that may be essentially untreatable, at least in the early
stages and perhaps never (fractured and cracked bones, certain types of
occupational cancer, and punctured eardrums) and those expected to
progressively worsen and become serious over time (chronic irreversible
diseases). The final rule is also responsive to the many commenters who urged
OSHA to adopt a definition of severity for this requirement that would
include all serious and significant injuries and illnesses, while excluding
less serious cases. The language of paragraph 1904.(b)(7) of the final rule
also responds to comments presented by commenters on the proposal who argued
that relying on test results or other measures as indicators of serious
occupational injury or illness was inappropriate. Instead, the final rule
relies exclusively on the diagnosis of a limited class of injuries and
illnesses by a physician or other licensed health care professional. Clarifying
That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work Related A
number of commenters on the proposal expressed concern that proposed Appendix
B was not clear enough about the fact that conditions must be work-related to
be recordable on the OSHA forms. For example, several commenters asked OSHA
to make sure that recordable cases of asthma are work-related (see, e.g.,
Exs. 15: 38, 78, 80, 83, 89, 105, 157, 163, 188, 197, 203, 239, 279, 281,
297, 299, 302, 337, 345, 378, 395, 414). The Jewel Coal and Coke Company (Ex.
15: 281) stated that "[asthma, in nearly all cases, is genetic and, to
be recordable, we feel must be a direct result of something in the working
OSHA environment. To require anything else would cause the unnecessary
recording of cases of genetic asthma with no relationship to the working
environment and would serve no purpose other than to balloon the
statistics." OSHA
wishes to reiterate that any condition that is recordable on the OSHA
injury and illness recordkeeping forms must be work-related, and §
1904.7(b)(7) includes the term "work-related" to make this fact
clear. In addition, because the employer will be dealing with a physician or
other licensed health care professional, he or she may also be able to
consult with the health care professional about the work-relatedness of the
particular case. If the employer determines, based either on his or her own
findings or those of the professional, that the symptoms are merely arising
at work, but are caused by some non-work illness, then the case would not be
recorded, under exception (b)(2)(ii) to the work-relatedness presumption at §
1904.5(b)(2) of the final rule. Similarly, if workplace events or exposures
contributed only insignificantly to the aggravation of a worker's preexisting
condition, the case need not be recorded under § 1904.5(a) and § 1904.5(b)(3)
of the final rule. The
provisions of § 1904.7(b)(7) of the final rule thus meet the objectives of
(1) capturing significant injuries and illnesses that do not meet the other
general recording criteria of death, days away from work, restricted work or
job transfer, medical treatment beyond first aid, or loss of consciousness;
(2) excluding minor injuries and illnesses; (3) addressing a limited range of
disorders; and (4) making it clear that these injuries and illnesses must be
work-related before they must be recorded. Section 1904.8 Additional Recording Criteria for Needlestick and
Sharps Injuries Section
1904.8 of the final rule being published today deals with the recording of a
specific class of occupational injuries involving punctures, cuts and
lacerations caused by needles or other sharp objects contaminated or
reasonably anticipated to be contaminated with blood or other potentially
infectious materials that may lead to bloodborne diseases, such as Acquired
Immunodeficiency Syndrome (AIDs), hepatitis B or hepatitis C. The final rule
uses the terms "contaminated," "other potentially infectious
material," and "occupational exposure" as these terms are
defined in OSHA's Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries
are of special concern to healthcare workers because they use needles and
other sharp devices in the performance of their work duties and are therefore
at risk of bloodborne infections caused by exposures involving contaminated
needles and other sharps. Although healthcare workers are at particular risk
of bloodborne infection from these injuries, other workers may also be at
risk of contracting potentially fatal bloodborne disease. For example, a
worker in a hospital laundry could be stuck by a contaminated needle left in
a patient's bedding, or a worker in a hazardous waste treatment facility
could be occupationally exposed to bloodborne pathogens if contaminated waste
from a medical facility was not treated before being sent to waste treatment. Section
1904.8(a) requires employers to record on the OSHA Log all work-related
needlestick and sharps injuries involving objects contaminated (or reasonably
anticipated to be contaminated) with another person's blood or other
potentially infectious material (OPIM). The rule prohibits the employer from
entering the name of the affected employee on the Log to protect the
individual's privacy; employees are understandably sensitive about others
knowing that they may have contracted a bloodborne disease. For these cases,
and other types of privacy concern cases, the employer simply enters
"privacy concern case" in the space reserved for the employee's
name. The employer then keeps a separate, confidential list of privacy
concern cases with the case number from the Log and the employee's name; this
list is used by the employer to keep track of the injury or illness so that
the Log can later be updated, if necessary, and to ensure that the
information will be available if a government representative needs information
about injured or ill employees during a workplace inspection (see § 1904.40).
The regulatory text of § 1904.8 refers recordkeepers and others to §
1904.29(b)(6) through § 1904.29(b)(10) of the rule for more information about
how to record privacy concern cases of all types, including those involving
needlesticks and sharps injuries. The implementation section of §
1904.8(b)(1) defines "other potentially infectious material" as it
is defined in OSHA's Bloodborne Pathogens Standard (29 CFR § 1910.1030, paragraph
(b)). Other potentially infectious materials include (i) human bodily fluids,
human tissues and organs, and (ii) other materials infected with the HIV or
hepatitis B (HBV) virus such as laboratory cultures or tissues from
experimental animals. (For a complete list of OPIM, see paragraph (b) of 29
CFR 1910.1030.) Although
the final rule requires the recording of all workplace cut and puncture
injuries resulting from an event involving contaminated sharps, it does not
require the recording of all cuts and punctures. For example, a cut made by a
knife or other sharp instrument that was not contaminated by blood or OPIM
would not generally be recordable, and a laceration made by a dirty tin can
or greasy tool would also generally not be recordable, providing that the
injury did not result from a contaminated sharp and did not meet one of the
general recording criteria of medical treatment, restricted work, etc.
Paragraph (b)(2) of § 1904.8 contains provisions indicating which cuts and
punctures must be recorded because they involve contaminated sharps and which
must be recorded only if they meet the general recording criteria. Paragraph
(b)(3) of § 1904.8 contains requirements for updating the OSHA 300 Log when a
worker experiences a wound caused by a contaminated needle or sharp and is
later diagnosed as having a bloodborne illness, such as AIDS, hepatitis B or
hepatitis C. The final rule requires the employer to update the
classification of such a privacy concern case on the OSHA 300 Log if the
outcome of the case changes, i.e., if it subsequently results in death, days
away from work, restricted work, or job transfer. The employer must also
update the case description on the Log to indicate the name of the bloodborne
illness and to change the classification of the case from an injury (i.e.,
the needlestick) to an illness (i.e., the illness that resulted from the
needlestick). In no case may the employer enter the employee's name on the
Log itself, whether when initially recording the needlestick or sharp injury
or when subsequently updating the record. The
privacy concern provisions of the final rule make it possible, for the first
time, for the identity of the bloodborne illness caused by the needlestick or
sharps injury to be included on the Log. By excluding the name of the injured
or ill employee throughout the recordkeeping process, employee privacy is
assured. This approach will allow OSHA to gather valuable data about the
kinds of bloodborne illnesses healthcare and other workers are contracting as
a result of these occupational injuries, and will provide the most accurate
and informative data possible, including the seroconversion status of the
affected worker, the name of the illness he or she contracted, and, on the
OSHA 301 Form for the original case, more detailed information about how the
injury occurred, the equipment and materials involved, and so forth. Use of
the privacy case concept thus meets the primary objective of this rulemaking,
providing the best data possible, while simultaneously ensuring that an
important public policy goal -- the protection of privacy about medical
matters -- is met. OSHA recognizes that requiring employers to treat privacy
cases differently from other cases adds some complexity to the recordkeeping
system and imposes a burden on those employers whose employees experience
such injuries and illnesses, but believes that the gain in data quality and
employee privacy outweigh these disadvantages considerably. The
last paragraph (paragraph (c)) of § 1904.8 deals with the recording of cases
involving workplace contact with blood or other potentially infectious
materials that do not involve needlesticks or sharps, such as splashes to the
eye, mucous membranes, or non-intact skin. The final recordkeeping rule does
not require employers to record these incidents unless they meet the final
rule's general recording criteria (i.e., death, medical treatment, loss of
consciousness, restricted work or motion, days away from work, diagnosis by
an HCP) or the employee subsequently develops an illness caused by bloodborne
pathogens. The final rule thus provides employers, for the first time, with
regulatory language delineating how they are to record injuries caused by
contaminated needles and other sharps, and how they are to treat other exposure
incidents (as defined in the Bloodborne Pathogens standard) involving blood
or OPIM. "Contaminated" is defined just as it is in the Bloodborne
Pathogens standard: "Contaminated means the presence or the reasonably
anticipated presence of blood or other potentially infectious materials on an
item or surface." Before
issuance of this final recordkeeping rule, the OSHA compliance directive CPL
2-2.44C for the Bloodborne Pathogens standard, "Enforcement Procedures
for the Occupational Exposure to Bloodborne Pathogens Standard, 29 CFR
1910.1030" provided recording guidance to employers of occupationally
exposed employees. The CPL 2-2.44C guidance treated cuts, lacerations and
exposure incidents identically, classifying all of the events as injuries
because they usually result from instantaneous events or exposures. The
employer was required to record an incident when it met one of the following
requirements: 1.
The incident is a work-related injury that involves loss of consciousness,
transfer to another job, or restriction of work or motion. 2.
The incident results in the recommendation of medical treatment beyond first
aid (e.g., gamma globulin, hepatitis B immune globulin, hepatitis B
vaccine, or zidovudine) regardless of dosage. 3.
The incident results in a diagnosis of seroconversion. The serological status
of the employee shall not be recorded on the OSHA 200. If a case of
seroconversion is known, it shall be recorded on the OSHA 200 as an injury (e.g.,
"needlestick" rather than "seroconversion") in the
following manner: a.
If the date of the event or exposure is known, the original injury shall be
recorded with the date of the event or exposure in column B. b.
If there are multiple events or exposures, the most recent injury shall be
recorded with the date that seroconversion is determined in column B. In
1999, OSHA updated CPL 2-2.44 and changed this language to simply refer to
the Part 1904 regulation, in anticipation of the publication of this final
recordkeeping rule. The
proposal In
the 1996 Federal Register notice, OSHA proposed recording criteria for
needlestick and sharps injuries that were the same as the criteria being set
forth in this final rule. The requirements in the final rule have been stated
in slightly different language from those in the proposal to be consistent
with the format of the remainder of the rule. The only substantive difference
between the approach taken in the proposal and that in the final rule is the
way that cases are handled to protect the privacy of the injured or ill
worker. Appendix B of the proposed rule (61 FR 4065) included requirements to
record the following: "any
workplace bloodborne pathogen exposure incident (as defined in 1910.1030(b))
that results in a positive blood test or diagnosis by a health care provider
indicating AIDS, HIV seroconversion, hepatitis B or hepatitis C. OR any
laceration or puncture wound that involves contact with another person's
blood or other potentially infectious materials. Note: to
protect employee confidentiality, employers shall record occupationally
acquired bloodborne pathogen diseases, such as hepatitis B, simply as the
initial bloodborne exposure incident and note the exposure type (e.g.
needlestick). Seroconversion and specific type of bloodborne disease shall
not be recorded." OSHA
explained in its proposal that recording these incidents was appropriate
because these injuries are clearly non-minor, and recording them would be
consistent with the Agency's mandate to collect information related to the
death, illness, and injury of workers (61 FR 4041). OSHA then requested
comment on whether it would be appropriate to record small puncture wounds
and lacerations that do not lead to disease, and whether OSHA should require
employers to record all "exposure incidents" involving exposure to
blood or OPIM, not just injuries involving contaminated needles and
sharps. The proposal also asked for comment about the special privacy
concerns potentially associated with bloodborne pathogen injuries and
illnesses, and asked the following questions: "What data is useful to
collect? Are there other criteria for the recording of bloodborne infectious
diseases which should be considered? What experience do employers have in
data collection systems for this hazard?" These
proposed recording criteria for needlesticks and sharps injury cases prompted
many comments to the rulemaking record. Very few of the comments supported
OSHA's proposed position on this issue. Commenters either recommended
recording all bloodborne pathogen exposure incidents or sharply limiting the
recording of these events. A large number of commenters either objected
specifically to the recording of all bloodborne pathogen exposure incidents
or objected to the entire contents of proposed Appendix B (see, e.g.,
Exs. 15: 1, 37, 38, 39, 44, 48, 52, 61, 66, 69, 74, 78, 82, 89, 100, 119,
121, 122, 126, 133, 146, 151, 152, 154, 156, 179, 193, 197, 200, 201, 203,
204, 213, 218, 219, 239, 254, 260, 262, 265, 271, 272, 277, 287, 297, 299,
301, 303, 305, 308, 310, 313, 317, 322, 329, 335, 345, 346, 347, 348, 349,
351, 352, 353, 361, 364, 373, 374, 375, 378, 392, 393, 395, 396, 398, 401,
403, 405, 407, 408, 409, 425, 434, 435). The most frequent suggestion made by
commenters was that the only criterion for recording bloodborne pathogen diseases
should be a positive blood test or diagnosis by a health care professional
(see, e.g., Exs. 15: 1, 38, 61, 65, 78, 82, 119, 122, 133, 151, 152,
179, 201, 213, 260, 262, 265, 290, 299, 301, 317, 345, 347, 373, 374, 393,
401, 407, 408, 435, 442). Many of the commenters who objected to recording
all bloodborne incidents on the Log argued that these cases reflect exposure
only and do not usually reflect cases that rise to the level of an injury or
illness (see, e.g., Exs. 15: 44, 69, 78, 151, 152, 179, 197, 201, 239,
272, 277, 287, 303, 308, 313, 345, 347, 348, 349, 351, 352, 353, 364, 373,
374, 375, 386, 392, 395, 396, 403, 405, 423, 425, 442). Other commenters
urged OSHA to consider these cases minor injuries if they do not result in
disease (see, e.g., Exs. 15: 52, 290, 317, 403, 409, 434). Many agreed
with the comments submitted by Bellin Hospital, which stated
"[r]ecording of all Significant Exposures is unnecessary.
Seroconversions after exposure, regardless of mode of exposure is appropriate
recordkeeping only" (Ex. 15: 38). Several commenters made similar
points. For example, Atlantic Dry Dock (Ex. 15: 179) wrote that "[n]ot
all contact [with blood or other potentially infectious materials] will
result in an infection. There is no injury/illness unless an infection has
actually resulted from the contact." Some
commenters suggested that only those cases that resulted in either medical
treatment or seroconversion should be recorded on the Log (see, e.g.,
Exs. 15: 48, 100, 213, 310, 395, 416, 423), while others advocated recording
lacerations and puncture wounds only if they met the rule's general recording
criteria (see, e.g., Exs. 15: 52, 200, 203, 219, 260, 262, 265, 271,
313, 329, 348, 352, 353, 401). As Bell Atlantic (Ex. 15: 128) commented,
"[s]erious lacerations and puncture wounds involving contact with
bloodborne pathogens should be reported. But the mechanism driving such
reporting is the severity of the wound and NOT the presence of bloodborne
pathogens. Even with the absence of bloodborne pathogens, such serious
injuries would be recorded." The
American Hospital Association and the Georgia Hospital Association expressed
concern that bloodborne pathogen disease criteria require "the recording
of all instances of certain conditions that meet specific criteria, whether
or not they meet OSHA's established criteria for recordability
(work-relationship; involves medical treatment or death, loss of
consciousness, or in-patient hospitalization, or days away from work
restricted work activity, or job transfer)" (Exs. 15: 100, 219). Several
commenters stated that the recording of all bloodborne pathogen incidents
would be redundant and unnecessary (see, e.g., Exs. 15: 66, 121, 299,
322, 408, 435). Some commenters said that OSHA's bloodborne pathogen standard
already requires recordkeeping and tracking of bloodborne pathogen exposure
incidents (see, e.g., Exs. 15:39, 89, 121, 310, 351, 378, 393, 405,
416), and others remarked that general medical records already contained
adequate data (see, e.g., Exs. 15: 151, 152, 179). A
number of commenters discussed the effect on injury and illness statistics
that would be caused by recording all bloodborne pathogen incidents (see, e.g.,
Exs. 15: 39, 44, 48, 61, 66, 69, 126, 146, 151, 152, 179, 201, 239, 287, 290,
308, 313, 329, 345, 352, 353, 364, 405). The Society of the Plastics
Industry, Inc. (Ex. 15: 364) said that "Requiring recording of exposure
incidents rather than actual illnesses will improperly inflate the statistics
regarding these diseases." Patrick Tyson, a partner at Constangy, Brooks
& Smith, LLC, (Ex. 15: 345) stated: In
effect, the Proposed Recordkeeping Rule would include on the Log those
exposure incidents where a medical follow-up examination actually rules out
the resulting illness. I believe that the Logs should not be used in this
fashion any more than they should be used to record incidents of high levels
of workplace noise in the absence of actual hearing loss, or incidents of
employee exposure to highly repetitive jobs in the absence of resulting musculo-skeletal
disorders. Simply stated, the OSH Act does not contemplate or intend the
recording of mere exposure incidents on the OSHA Log. To do so would
artificially overstate the relative safety and health risk in the American
workplace. On
the other hand, a number of commenters recommended that OSHA require the
recording of all bloodborne pathogen incidents as defined in the bloodborne
pathogens standard (see, e.g., Exs. 24, 15: 72, 153, 181, 196, 198,
289, 379, 380, 418). Several of these commenters urged the recording of all
exposure incidents to improve the information on these injuries and promote
better protection for workers (see, e.g., Exs. 24, 15: 72, 153, 181,
196, 289, 379, 380). The American Association of Occupational Health Nurses
(AAOHN) remarked "The benefit in keeping these detailed records of
bloodborne pathogen exposures will be the ability to track the root cause of
resultant injuries and illnesses, regardless of latency" (Ex. 15: 181).
The National Association of Operating Room Nurses (Ex. 15: 72) added
"Reporting exposures may raise consciousness resulting in work practice
changes and decreased hazard." Two
commenters cited the severity of these incidents as a reason for requiring
the recording of all exposure incidents (Exs. 24; 15: 379). The American
Nurses Association based its arguments on the severity of the risk, stating
"While the Center for Disease Control and Prevention (CDC) Cooperative
Needlestick Surveillance Group reported no seroconversions to HIV positive
from mucous membrane or skin exposure, Hepatitis infections have been
reported following exposures via these routes. The nature of the risk to HIV
however small is very severe, deadly in fact; and the risk of Hepatitis is
even greater. Because of the severity of the risk, we believe that all
exposures must be recorded" (Ex. 24). The Service Employees
International Union (SEIU) added "The lives of thousands of health care
workers each year are unnecessarily devastated by occupational exposure to
hepatitis B, hepatitis C and HIV. A workplace exposure to blood or other
potentially infectious materials represents a significant event in the life
of a health care worker, regardless of whether or not the exposure results in
infection with hepatitis B, hepatitis C or HIV" (Ex. 15: 379). A
few commenters remarked on the need for consistency between the bloodborne
pathogens standard and the recordkeeping requirements (see, e.g., Exs.
15: 153, 198, 379). The National Association for Home Care (NAHC) stated
"NAHC believes that OSHA should maintain consistency between individual
OSHA bloodborne pathogen requirements and general OSHA reporting
requirements. Reporting of all exposure incidents is consistent with OSHA's
bloodborne pathogen regulations for health care settings which require
medical follow-up of employees for all exposure incidents" (Ex. 15:
198). Several
commenters suggested recording all incidents as a method for masking the
identity of workers who actually contract disease as a result of their injury
(see, e.g., Exs. 15: 379, 380, 418). The AFL-CIO (Ex. 15: 418) stated: The
AFL-CIO believes that exposures to bloodborne pathogens pose a unique case
with respect to confidentiality and privacy concerns. As the Agency has
recognized in the Bloodborne Pathogen Standard, 29 CFR 1910.1030, there are
real and legitimate concerns about discrimination against individuals who
have tested positive for HIV and other bloodborne infectious diseases. To
address these legitimate confidentiality concerns, the AFL-CIO believes that
a different approach to recording cases related to bloodborne pathogens is
required. For these cases, we recommend that the Agency require the recording
of needlestick injuries and all exposures to blood or blood contaminated body
fluids on the Log 300 and on the 301. Cases involving actual seroconversions
should be recorded in the confidential medical record. This approach would be
consistent with the approach and language in the bloodborne pathogen
standard. It would permit the log to be used to track individual cases of
exposure for prevention purposes, while at the same time maintaining the
confidentiality of individuals whose health status had changed as a result of
exposure. The AFL-CIO recognizes that this approach will require the
recording of exposure incidents which do not result in the change of health
status and sets different criteria for recording cases related to bloodborne
pathogens. Given the unique confidentiality concerns associated with this set
of conditions, we believe that this special treatment for these conditions is
warranted. After
a review of the many comments in the record on this issue, OSHA has decided
to require the recording of all workplace injuries from needlesticks and
sharp objects that are contaminated with another person's blood or other
potentially infectious material (OPIM) on the OSHA Log. These cases must be
recorded, as described above, as privacy concern cases, and the employer must
keep a separate list of the injured employees' names to enable government
personnel to track these cases. OSHA does not agree with those commenters who
were of the opinion that contaminated needlestick and sharps injuries are
minor injuries comparable in importance to a puncture by a sewing needle or
leather punch. OSHA also disagrees with those commenters who believed these
incidents are merely exposure incidents roughly comparable with exposure to
loud noises. These incidents are clearly injuries, where the worker has
experienced a cut or laceration wound. OSHA
recognizes that these injuries are different from most workplace cuts and
lacerations, whose seriousness depends largely on the size, location,
jaggedness, or degree of contamination of the cut, which determines the need
for medical treatment, restricted work, or time away for recuperation and
thus the recordability of the incident. In contrast, all injuries from
contaminated needles and sharps are serious because of the risk of
contracting a potentially fatal bloodborne disease that is associated with
them. Many
commenters argued that needlestick and sharps injuries are not the kinds of
injuries that Congress intended employers to record, as articulated in the
OSH Act (see, e.g., Exs. 15: 239, 308, 313, 345, 352, 353, 375, 395).
As discussed earlier in the Legal Authority section, OSHA disagrees,
believing that Congress mandated the recording of all non-minor injuries and
illnesses as well as all injuries resulting in medical treatment or one of
the other general recording criteria. OSHA finds that needlestick and sharps
injuries involving blood or other potentially infectious materials are
non-minor injuries, and therefore must be recorded. This conclusion is
consistent with the Senate Committee on Appropriations report accompanying
the fiscal year 1999 Departments of Labor, Health and Human Services, and
Education and Related Agencies Appropriation Bill, 1999 (S. 2440) which
included the following language: Accidental
injuries from contaminated needles and other sharps jeopardize the well-being
of our Nation's health care workers and result in preventable transmission of
devastating bloodborne illnesses, including HIV, hepatitis B, and hepatitis
C. The committee is concerned that the OSHA 200 Log does not accurately
reflect the occurrence of these injuries. The committee understands that the
reporting and recordkeeping standard (29 CFR 1904) requires the recording on
the OSHA 200 Log of injuries from potentially contaminated needles and other
sharps that result in: the recommendation or administration of medical
treatment beyond first aid; death, restriction of work or motion; loss of
consciousness, transfer to another job, or seroconversion in the worker.
Accidental injuries with potentially contaminated needles or other sharps
require treatment beyond first aid. Therefore, the Committee urges OSHA to
require the recording on the OSHA 200 log of injuries from needles and other
sharps potentially contaminated with bloodborne pathogens (Senate Report
105-300). OSHA
finds that these injuries are significant injuries because of the risk of
seroconversion, disease, and death, they pose (see the preamble to the OSHA
Bloodborne Pathogens Standard at 56 FR 64004). OSHA
recognizes that requiring the recording of all injuries from contaminated
needles and sharps will result in more cases being recorded on employers'
Logs and will increase the number of such injuries reflected in the Nation's
statistics. However, the Agency does not agree that the statistics will be
inappropriately inflated. Instead, OSHA believes that the statistics will
henceforth include, for the first time, cases that reflect the incidence of
these significant injuries accurately. Adding these cases to the Nation's
statistics will create a more accurate accounting of work-related injury and
illness cases, information that will be useful to employers, employees, the
government and the public. In addition, the collection of this information at
the establishment level will generate data employers and employees can use to
analyze injury and illness patterns and make improvements in work practices
and equipment. Recording these injuries will thus help to realize one of this
rulemaking's primary goals, to improve the utility and quality of the
information in the records. If
OSHA were to adopt a final rule that only required the recording of seroconversion
cases and cases that met the general recording criteria, as many commenters
suggested (see, e.g., Exs. 15: 52, 200. 203, 219, 260, 262, 265, 271,
313, 329, 348, 352, 353, 401), the Nation's statistics would not be as
complete and accurate, and workplace records would not have the same
preventive value for employees and employers. In addition, that approach
would be more complex because it would require employers to evaluate each
case against several criteria before recording it. The approach taken in the
final rule is considerably simpler. Recording all such injuries also helps to
protect the privacy of workers who have been injured in this way. Needlestick
and sharps injuries raise special privacy concerns. The comments on this
subject show a universal concern for the privacy of a worker's medical
information and disease status, and OSHA has taken several special
precautions, discussed elsewhere in the preamble, to protect this privacy.
Several commenters suggested recording all needlesticks and sharps incidents
as a method for masking the identify of workers who actually contract disease
(see, e.g., Exs. 15: 379, 380, 418). OSHA has adopted this practice in
the final rule because recording all of these injuries will help to protect
the privacy of individual workers as well as produce higher quality data. OSHA
disagrees with those commenters who argued that the § 1904.8 recording
requirement would be duplicative or redundant with the requirements in the
Bloodborne Pathogens standard (29 CFR 1910.1030). That standard requires the
employer to document the route(s) of exposure and the circumstances under
which the exposure incident occurred, but does not require that it be
recorded on the Log (instead, the standard requires only that such
documentation be maintained with an employee's medical records). The standard
also has no provisions requiring an employer to aggregate such information so
that it can be analyzed and used to correct hazardous conditions before they
result in additional exposures and/or infections. The same is true for other
medical records kept by employers: they do not substitute for the OSHA Log or
meet the purposes of the Log, even though they may contain information about
a case that is also recorded on the Log. OSHA
is requiring only that lacerations and puncture wounds that involve contact
with another person's blood or other potentially infectious materials be
recorded on the Log. Exposure incidents involving exposure of the eyes,
mouth, other mucous membranes or non-intact skin to another person's blood or
OPIM need not be recorded unless they meet one or more of the general
recording criteria, result in a positive blood test (seroconversion), or
result in the diagnosis of a significant illness by a health care
professional. Otherwise, these exposure incidents are considered only to
involve exposure and not to constitute an injury or illness. In contrast, a
needlestick laceration or puncture wound is clearly an injury and, if it
involves exposure to human blood or other potentially infectious materials,
it rises to the level of seriousness that requires recording. For splashes
and other exposure incidents, the case does not rise to this level any more
than a chemical exposure does. If an employee who has been exposed via a
splash in the eye from the blood or OPIM of a person with a bloodborne
disease actually contracts an illness, or seroconverts, the case would be
recorded (provided that it meets one or more of the general recording
criteria). Privacy
Issues There
was support in the record for OSHA's proposal to record occupationally
acquired bloodborne pathogen diseases simply as the initial bloodborne
exposure incident to protect employee confidentiality. Eli Lilly and Company
(Ex. 15: 434) commented: Lilly
agrees with the Agency's proposed method of recording exposure incidents that
result in disease. All of these recordable incidents should be recorded
simply as the type of bloodborne exposure incident (e.g. needlestick)
with no reference to the type of disease. While Lilly is concerned about
protecting the privacy of every individual employee's medical information,
Lilly concedes that the current social stigma resulting from bloodborne
pathogen diseases demands a more simple recordkeeping requirement. Privacy
issues, however, concerned many of the commenters to the rulemaking record.
Metropolitan Edison/Pennsylvania Electric Company (M/P), for example, was so
concerned with employee privacy that "[d]ue to the sensitivity of
Bloodborne Pathogenic diseases and related confidentiality concerns, M/P
disagrees with recording these types of incidents" (Ex. 15: 254). The
American Automobile Manufacturers Association (AAMA), among others, expressed
concern that the recording requirement for bloodborne pathogen diseases would
discourage employees from reporting exposures and might also discourage
individuals from seeking treatment. AAMA wrote: [m]any
individuals who contract an infectious disease from a workplace event or
exposure will be against having their names on the OSHA log for scrutiny by
any employee or former employee of the establishment. To openly list (on the
OSHA log) an individual with an infectious disease will discourage some
employees from reporting exposures. It may also discourage individuals from
seeking treatment, which may be lifesaving or which may limit the spread of
the disease. We oppose the development of any system which directly or
indirectly discourages individuals from seeking medical evaluation or
treatment, for the sake of data collection (Ex. 15: 409). The
AAMA proposed as an alternative "to remove all personal identifiers for
infectious disease cases from the OSHA log. Some type of employer created
coding system could be instituted, as long as the code was consistently
applied. Authorized medical personnel and government representatives would be
the only individuals permitted access to the personal identifiers and/or key
to the coding system" (Ex. 15: 409). The Quaker Oats Company and the
Ford Motor Company supported similar alternatives (Exs. 15: 289, 347). A number
of commenters specifically supported the use of a coding system (see, e.g.,
Exs. 15: 146, 213, 260, 262, 265, 345, 347, 409). OSHA
shares these commenters' concern about the privacy of employees who
seroconvert as the result of a bloodborne pathogens-related needlestick or
sharps incident and finds that these incidents are clearly the type of
non-minor occupational injury and illness Congress intended to be included in
the OSHA recordkeeping system. If the Agency were to exclude these cases
categorically from the records, it would not be meeting the requirements of
the OSH Act to produce accurate statistics on occupational death, injury and
illness. The
final recordkeeping rule addresses this issue by prohibiting the entry of the
employee's name on the OSHA 300 Log for injury and illness cases involving
blood and other potentially infectious material. Further, by requiring
employers to record all needlestick and sharps incidents, regardless of the
seroconversion status of the employee, coworkers and representatives who have
access to the Log will be unable to ascertain the disease status of the
injured worker. OSHA believes that the privacy concern case approach of the
final rule obviates the need for a coding system because the case number
assigned to the recorded injury will serve the purpose of a code, without
adding additional complexity or burden. A discussion of access to the records
is contained in the portion of the preamble associated with section 1904.35,
Employee Involvement. The
College of American Pathologists objected to the inclusion of hepatitis C in
the list of bloodborne pathogen diseases. They commented that "the great
majority of cases of hepatitis C lack any identifiable source of exposure.
More cases of HCV infection occur among non-health care workers than among
health care workers. To presume that an individual who is infected with HCV
acquired it on the job just because they work in a health care setting is
unjustified" (Ex. 15: 37). On the other hand, a commenter from Waukesha Memorial
Hospital suggested that OSHA "should include all blood borne pathogen
disease that develops as a result of an exposure incident, not just HIV, Hep
B, Hep C, even though those are the major players in a hospital setting.
Since we must teach that there are many bloodborne pathogens, it doesn't make
sense to me to only record some and not all" (Ex. 15: 436). OSHA
believes that hepatitis C cases should, like other illness cases, be tested
for recordability using the geographic presumption that provides the principal
rationale for determining work-relatedness throughout this rule. OSHA also
agrees with the commenter from Waukesha Memorial Hospital that all bloodborne
pathogen diseases resulting from events or exposures in the workplace should
be recorded. Therefore, OSHA has modified the final regulatory text of
paragraph 1904.8(b)(4)(i) to reflect this decision. Section 1904.9 Additional Recording Criteria for Cases Involving
Medical Removal Under OSHA Standards The
final rule, in paragraph 1904.9(a), requires an employer to record an injury
or illness case on the OSHA 300 Log when the employee is medically removed
under the medical surveillance requirements of any OSHA standard. Paragraph
1904.9(b)(1) requires each such case to be recorded as a case involving days
away from work (if the employee does not work during the medical removal) or
as a case involving restricted work activity (if the employee continues to
work but in an area where exposures are not present.) This paragraph also
requires any medical removal related to chemical exposure to be recorded as a
poisoning illness. Paragraph
1904.9(b)(2) informs employers that some OSHA standards have medical removal
provisions and others do not. For example, the Bloodborne Pathogen Standard
(29 CFR 1910.1030) and the Occupational Noise Standard (29 CFR 1910.95) do
not require medical removal. Many of the OSHA standards that contain medical
removal provisions are related to specific chemical substances, such as lead
(29 CFR 1901.1025), cadmium (29 CFR 1910.1027), methylene chloride (29 CFR
1910.1052), formaldehyde (29 CFR 1910.1048), and benzene (29 CFR 1910.1028). Paragraph
1904.9(b)(3) addresses the issue of medical removals that are not required by
an OSHA standard. In some cases employers voluntarily rotate employees from
one job to another to reduce exposure to hazardous substances; job rotation
is an administrative method of reducing exposure that is permitted in some
OSHA standards. Removal (job transfer) of an asymptomatic employee for
administrative exposure control reasons does not require the case to be
recorded on the OSHA 300 Log because no injury or illness -- the first step
in the recordkeeping process -- exists. Paragraph 1904.9(b)(3) only applies
to those substances with OSHA mandated medical removal criteria. For injuries
or illnesses caused by exposure to other substances or hazards, the employer
must look to the general requirements of paragraphs 1910.7(b)(3) and (4) to
determine how to record the days away or days of restricted work. The
provisions of § 1904.9 are not the only recording criteria for recording
injuries and illnesses from these occupational exposures. These provisions
merely clarify the need to record specific cases, which are often established
with medical test results, that result in days away from work, restricted
work, or job transfer. The § 1904.9 provisions are included to produce more
consistent data and provide needed interpretation of the requirements for
employers. However, if an injury or illness results in the other criteria of
§ 1904.7 (death, medical treatment, loss of consciousness, days away from
work, restricted work, transfer to another job, or diagnosis as a significant
illness or injury by a physician or other licensed health care professional)
the case must be recorded whether or not the medical removal provisions of an
OSHA standard have been met. The
recording of OSHA mandated medical removals was not addressed in the 1996
recordkeeping proposal. OSHA has included the provisions of § 1904.9 in the
final rule to address a deficiency noted by a number of commenters, and as a
replacement for criteria that were contemplated for the recording of various
ailments in proposed Appendix B (61 FR 4063-4065). For example, R. L. Powell,
Personnel Safety Manager for Union Carbide Corporation, (Ex. 15: 396) asked
about medical removal and restricted work: How
does this criteria [restricted work] apply to "medical removal?"
Medical removal is sometimes mandated by other OSHA standards under certain
conditions. A similar technique may also be used by a physician to conduct
controlled tests to assess the impact of workplace factors on a condition
such as a chemical sensitivity. A
number of commenters recommended the use of medical removal criteria as the
correct recording level for various substances listed in proposed Appendix B
(see, e.g., Exs. 22; 15: 113, 155, 192, 199, 213, 242, 262, 272, 303,
304, 307, 326, 338, 340, 349). Many of these commenters suggested the medical
removal criteria as a substitute for the proposed recording levels for lead
and cadmium (Ex. 22; 15: 113, 155, 192, 340, 349). For example, Newport News
Shipbuilding (Ex. 15: 113) said: The
proposed regulation requires recording lead and cadmium cases based on
biological action levels rather than on the onset of illness. The purpose of
the biological action level is to identify those employees who are at greater
risk of reaching the limits for medical removal, so that onset of illness may
be prevented. The use of biological action levels as the basis of defining and
recording illness is inappropriate. Rather, lead and cadmium cases should be
recorded when medical removal is required by the specific standard. The
Institute of Scrap Recycling Industries, Inc. (Ex. 15: 192) added: This
[proposed] statement clearly subverts the clear intent of the OSHA lead
standard that a blood lead level of 50 µg/100 g of whole blood and not 40
µg/100 g of whole blood is the criteria for medical removal and therefore
also the criteria for documentation on the OSHA injury and illness log. Had
the scientific evidence on which the OSHA lead standard was based pointed
clearly to 40 µg/100 g of whole blood as the medical removal standard and
therefore the standard for documentation on the OSHA injury and illness log
the standard would have reflected this. Therefore it would clearly subvert
the purpose and scope of the OSHA lead standard, that was based on scientific
evidence and an exhaustive public comment period on the scientific data, to
establish a clear benchmark for a recordable event on the injury and illness
log without the benefit of supporting scientific study and data and a public
comment period on such information. The
Institute of Scrap Recycling Industries, Inc is incorrect about the lead
standard's determination of recording criteria on the OSHA injury and illness
log. The lead standard (§ 1910.1025) does not specifically address the
recording issue, but the lead standard does address the medical removal
issue. The Institute points to the benefit of using medical removal criteria
for recording purposes, and OSHA agrees that these criteria are useful for
recordkeeping purposes. The medical removal provisions of each standard were
set using scientific evidence established in the record devoted to that
rulemaking. OSHA takes care when setting the medical removal provisions of
standards to ensure that these provision reflect a material harm, i.e.,
the existence of an abnormal condition that is non-minor and thus worthy of
entry in the OSHA injury and illness records. Other
commenters urged OSHA to use the medical removal criteria as a replacement
for all of proposed Appendix B. (see, e.g., Exs. 15: 199, 213, 242,
262, 303, 304, 307, 326, 338, 375). For example, Southern Nuclear Operating
Company (Ex. 15: 242) stated that: Mercury,
Lead, Cadmium, Benzene: In these cases, it is appropriate to distinguish
between biological markers that merely point to exposure versus those that
relate to illness or disease. All of the recordability criteria for these
substances are based on various "action" levels stated in their
respective OSHA regulations. Southern Nuclear Operating Company believes that
the appropriate criteria for recording these cases as illnesses should be the
"medical removal" criteria stated in their respective regulations
coupled with a physician's diagnosis of disease rather that the
"action" levels as stated in the proposal. These "medical
removal" criteria are more indicative of disease or illness. If the
"action" levels for these substances are used as the recording
criteria, the number of illnesses recorded on the OSHA log would more
accurately reflect the numbers of workers covered by a given exposure control
program as opposed to the number of illnesses that result from an inadequate
program. The
American Petroleum Institute (API) argued that: API
incorporates in its recommended Appendix B the recording of cases when
medical removal is required by a specific OSHA standard. API concedes this is
inconsistent with the concept of "serious or significant" -- and
inconsistent with API's fundamental belief that actions by employers to
prevent cases from becoming serious should not be recorded -- because such
medical removals are by design preventive; that is, intended to occur before
a case becomes serious. However, API acknowledges that it is extremely
difficult to define and get substantial agreement on any straight-forward and
verifiable criteria when such cases are indeed "serious".
Therefore, API has decided to recommend the medical-removal criterion for
Appendix B as the best on-balance solution for situations involving toxic
substance adsorption. (Ex. 15: 375) A
number of commenters opposed the use of mandatory medical removal levels for
injury and illness recording purposes (see, e.g., Exs. 25; 15: 146,
193, 258, 261, 304, 305, 318, 346, 358). Many argued that the OSH Act did not
support the use of medical removals (see, e.g., Exs. 25; 15: 258, 261,
304, 358). For example, the National Association of Manufacturers (NAM)
commented: There
is no reference in Section 24(a) or Section 8(c)(2) of the OSH Act to
recording exposure incidents that do not result in disabling, serious or
significant injuries or illnesses; or is there any reference in those
sections to medical removal provisions or other action levels that do not
result in disabling, serious or significant injuries or illnesses. On the
other hand, Section 8(c)(3) does discuss -- as a separate component of OSHA's
occupational safety and health statistics program -- maintaining records of
employee exposures to toxic materials and harmful physical agents pursuant to
standards issued under Section 6 of the OSH Act. This
is a rulemaking about the statistical program for tracking disabling, serious
or significant injuries and illnesses -- nothing more and nothing less. We
believe Congress determined that those are the criteria that OSHA should
utilize for this particular component of its statistical program. A
statistical program that aggregates disabling, serious or significant
injuries and illnesses with other conditions and exposure incidents, is
contrary to both the congressional directive and the goal of this
recordkeeping system. While
these commenters are correct in noting that the OSH Act does not specifically
address medical removal levels and whether or not cases meeting these levels
should be recorded, the Act also does not exclude them. The Act does require
the recording of injuries and illnesses that result in "restriction of
work or motion" or "transfer to another job." OSHA finds that
cases involving a mandatory medical removal are cases that involve serious,
significant, disabling illnesses resulting in restriction of work and
transfer to another job, or both. These medical restrictions result either in
days away from work (form of restriction) or days when the worker can work
but is restricted from performing his or her customary duties. Other
commenters objected to recording medical removals because they are
precautionary in nature (Ex. 15: 146, 193, 258, 261, 305, 318, 346). The
American Foundrymen's Society, Inc. (Ex. 15: 346) argued that: An
abnormally high level of a toxic material in an individual's blood (e.g.,
a lead level at or above the action level or the level requiring
"medical removal" under OSHA's Lead Standard) is not and should
not, in itself, be considered a recordable injury or illness. A preventive or
prophylactic measure such as medical removal (as opposed to a restorative or
curative measure) is not and should not be deemed medical treatment, a job
transfer or restricted activity for purposes of recordability in the absence
of a diagnosis of a substantial impairment of a bodily function. As
stated previously, a "diagnosis of substantial impairment of a bodily
function" is not required for a case to meet OSHA recordkeeping
criteria, nor is it a limitation to recordability under the OSH Act. Many
injuries and illnesses meet the recording criteria of the Act but lack
diagnosis of a substantial impairment of a bodily function. Although the
medical removal provisions are included in OSHA's standards to encourage
participation in the medical program by employees and to prevent progression
to serious and perhaps irreversible illness, they also reflect illnesses
caused by exposures in the workplace and are thus themselves recordable. The
workers are being removed not only to prevent illness, but to prevent further
damage beyond what has already been done. Thus OSHA does not agree that
medical removal measures are purely preventive in nature; instead, they are
also remedial measures taken when specific biological test results indicate
that a worker has been made ill by workplace exposures. OSHA
has therefore included section 1904.9 in the final rule to provide a uniform,
simple method for recording a variety of serious disorders that have been
addressed by OSHA standards. The § 1904.9 provisions of the final rule cover
all of the OSHA standards with medical removal provisions, regardless of
whether or not those provisions are based on medical tests, physicians'
opinions, or a combination of the two. Finally, by relying on the medical
removal provisions in any OSHA standard, section 1904.9 of the final rule
establishes recording criteria for future standards, and avoids the need to
amend the recordkeeping rule whenever OSHA issues a standard containing a
medical removal level. Section 1904.10 Recording Criteria for Cases Involving Occupational
Hearing Loss The
recording criteria employers should use to record occupational hearing loss
on the OSHA recordkeeping forms have been an issue since OSHA first proposed
to require hearing conservation programs for general industry employers (39
FR 37775, October 24, 1974). Job-related hearing loss is a significant
occupational safety and health issue because millions of workers are employed
in noisy workplaces and thousands of workers experience noise-induced hearing
loss each year. Noise-induced hearing loss is a serious and irreversible
condition that may affect the safety and well-being of workers for the rest
of their lives. For
the nation as a whole in 1997, the BLS reported only 495 cases of
occupational hearing loss resulting in days away from work (http://stats.bls.gov/case/ostb0684.txt; BLS Characteristics Data Table R15
of 04/22/1999). Hearing loss is not the type of occupational injury or
illness that typically requires days away from work for recuperation, as is
often the case for a fracture, fall, or carpal tunnel syndrome case. OSHA
believes that there are many cases of hearing loss -- probably numbering in
the thousands -- that occur every year as a result of job-related noise
exposure but do not result in days away from work and are thus not captured
in the BLS statistics. Because these hearing losses are often permanent, a
large number of Americans, both working and retired, are currently suffering
the effects of hearing loss due to occupational exposure. The
changes being made to the OSHA 300 form in the final rule will improve the
quality of the data collected nationally on this important occupational
condition by providing consistent hearing loss recording criteria, thus
improving the consistency of the hearing loss statistics generated by the BLS
occupational injury and illness collection program. National hearing loss
statistics will also be improved because OSHA has added a column to the OSHA
300 Log that will require employers, for the first time, to separately
collect and summarize data specific to occupational hearing loss. These
changes mean that the BLS will collect hearing loss data in future years,
both for cases with and without days away from work, which will allow for
more reliable published statistics concerning this widespread occupational
disorder. Paragraph
1904.10(a) of the final rule being published today requires an employer to
record an employee's hearing test (audiogram) result if that result reveals
that a Standard Threshold Shift (STS) for that employee has occurred. If the
employee is one who is covered by the medical surveillance requirements of
OSHA's Occupational Noise standard (29 CFR 1910.95), compliance with the
standard will generate the information necessary to make recording decisions. If
the employee is not covered by the 29 CFR 1910.95 noise standard, OSHA rules
do not require the employer to administer baseline or periodic audiograms,
and the 1904 rule does not impose any new requirements for employers to
obtain baseline information where it is not already required. However, some
employers conduct such tests and acquire such information for other reasons.
If the employer's workplace is a high noise environment (i.e., has noise
levels that exceed 85 dBA) and the employer has the relevant audiogram
information for an employee, the employer must record any identified
work-related hearing loss equal to or greater than an OSHA-defined STS on the
Log. This means that an employer in the construction industry, for example,
who is aware that his or her work activities regularly generate high noise
levels and who has audiometric data on the hearing level of the employees
exposed to those noise levels must record on the Log any STS detected in
those workers. OSHA believes that this approach to the recording of
work-related hearing loss cases among these workers not covered by the noise
standard is appropriate because it is reasonable, protective, and
administratively straightforward. Paragraph
1904.10(b)(1) of the final rule defines an STS as that term is defined in the
Occupational Noise Standard: as a change in an employee's hearing threshold,
relative to the baseline audiogram for that employee, of an average of 10
decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both ears. The
Noise standard, at paragraph 1910.95(c)(1), describes the employees in
general industry who are covered by the required hearing conservation program
as follows: The
employer shall administer a continuing, effective hearing conservation
program, as described in paragraphs (c) through (o) of this section, whenever
employee noise exposures equal or exceed an 8-hour time-weighted average
sound level (TWA) of 85 decibels measured on the A scale (slow response) or,
equivalently, a dose of fifty percent. For purposes of the hearing
conservation program, employee noise exposures shall be computed in
accordance with appendix A and Table G-16a, and without regard to any
attenuation provided by the use of personal protective equipment. Paragraph
1904.10(b)( 2) of the final recordkeeping rule directs employers how to
determine whether a recordable STS has occurred. The paragraph deals with two
situations: (1) where the employee has not previously experienced such a
hearing loss, and (2) where the employee has experienced a past recordable
hearing loss. If the employee has never previously experienced a recordable
hearing loss, the employer must compare the results of the employee's current
audiogram with the employee's baseline audiogram, if the employee has a
baseline audiogram. The employee's baseline audiogram could either be that
employee's original baseline audiogram or a revised baseline audiogram
adopted in accordance with paragraph (g)(9) of 29 CFR 1910.95. For employees
who have not previously had a recordable hearing loss with that employer, the
loss in hearing is computed using the preemployment hearing test result so
that any hearing loss the employee may have experienced before obtaining
employment with the employer is not attributed to noise exposure in that
employer's workplace. If
the employee has previously experienced a recordable hearing loss, the
employer must compare the employee's current audiogram with the employee's
revised baseline audiogram (i.e., the audiogram reflecting the prior recorded
hearing loss). For employees who have had a previously recordable hearing
loss with that employer, the final recordkeeping rule thus ensures that the
employer does not record the same case of hearing loss twice, but that if a
second STS occurs, the employer will record that additional hearing loss. Paragraphs
1904.10(b)(3) and (4) of the final rule allow the employer to take into
account the hearing loss that occurs as a result of the aging process and to
retest an employee who has an STS on an audiogram to ensure that the STS is
permanent before recording it. The employer may correct the employee's
audiogram results for aging, using the same methods allowed by the OSHA Noise
standard (29 CFR 1910.95). Appendix F of § 1910.95 provides age correction
for presbycusis (age-induced hearing loss) in Tables F-1 (for males) and F-2
(for females). Further, as permitted by the Noise standard, the employer may
obtain a second audiogram for employees whose first audiogram registers an
STS if the second audiogram is taken within 30 days of the first audiogram.
The employer may delay recording of the hearing loss case until the STS is
confirmed by the second audiogram and is, or course, not required to record
the case if the second audiogram reveals that the STS was not permanent. Paragraph
1904.10(b)(5) of the final rule establishes how employers are to determine
the work-relatedness of hearing loss cases. This paragraph specifies that, in
accordance with the recordkeeping rule's definition of work-relationship,
hearing loss is presumed to be work-related for recordkeeping purposes if the
employee is exposed to noise in the workplace at an 8-hour time-weighted
average of 85 dB(A) or greater, or to a total noise dose of 50 percent, as
defined in 29 CFR 1910.95. (Noise dose is defined as the amount of actual
employee exposure to noise relative to the permissible exposure limit for noise;
a dose greater than 100% represents exposure above the limit.) For hearing
loss cases where the employee is not exposed to this level of workplace
noise, or where the employee is not covered by the Occupational Noise
standard, the employer must use the rules set out in § 1904.5 to determine if
the hearing loss is to be considered work related for recordkeeping purposes. Paragraph
1904.10(b)(6) allows the employer not to record a hearing loss case if
physician or other licensed health care professional determines that the
hearing loss is not work-related or has not been aggravated by occupational
noise exposure. This provision is consistent with the Occupational Noise
standard, and it allows the employer not to record a hearing loss case that
is not related to workplace events or exposures; examples of such cases are
hearing loss cases occurring before the employee is hired or those unrelated
to workplace noise. The
recordkeeping provisions in section 1904.10 of the final recordkeeping rule
thus match the provisions of the Occupational Noise standard by (1) covering
the same employers and employees (with the exception of cases occurring among
employees not covered by that standard whose employers have audiometric test
results and high-noise workplaces); (2) using the same measurements of
workplace noise; (3) using a common definition of hearing loss, i.e., the
STS; (4) using the same hearing loss measurement methods; (5) using the same
definitions of baseline audiogram and revised baseline audiogram; (6) using
the same method to account for age correction in audiogram results; and (7)
allowing certain temporary threshold shifts to be set aside if a subsequent
audiogram demonstrates that they are not permanent or a physician or other
licensed health care professional finds they are not related to workplace
noise exposure. The
Former Rule The
regulatory text of OSHA's former recordkeeping rule did not specifically
address the recording of hearing loss cases, and the § 1910.95 Occupational
Noise Standard does not address the recording of hearing loss cases on the
OSHA Log. However, the 1986 Recordkeeping Guidelines provided clear advice to
employers to the effect that work-related hearing loss was a recordable
disorder, that it could be either an injury or illness, depending on the
events and exposures causing the hearing loss, and that all hearing loss
illnesses were required to be recorded, regardless of the industry in which
the employer worked (Ex. 2, p. 4). However, the Guidelines did not
provide specific guidance on the kinds of hearing test or audiogram results
that would constitute a recordable, work-related hearing loss. In
1990, OSHA considered issuing a Compliance Directive addressing the recording
of hearing loss cases on employers' OSHA 200 Logs, but decided that the issue
of the recording of hearing loss cases should be addressed through
notice-and-comment rulemaking at the time of the revision of the
recordkeeping rule. To address this topic in the interim before the final
recordkeeping rule was issued, OSHA sent a memorandum to its field staff
(June 4, 1991) to clarify its enforcement policy on the recording of
occupational hearing loss and cumulative trauma disorders on the OSHA 200
Log, on the grounds that these cases "have received national attention
and require immediate clarification." The memorandum specified that
"OSHA will issue citations to employers for failing to record work
related shifts in hearing of an average of 25 dB or more at 2000, 3000, and
4000 hertz (Hz) in either ear on the OSHA 200 Log." The interim
enforcement policy was intended to provide a conservative approach to the
issue until the recordkeeping rulemaking was completed. The interim policy
stated that "The upcoming revision of the recordkeeping regulations,
guidelines and related instructional materials will address the recordability
criteria for all work related injuries and illnesses." The memo also
mentioned the use of standard threshold shifts (STS) results, saying: Employers
are presently required by 29 CFR 1910.95 to inform employees in writing
within 21 days of the determination of a Standard Threshold Shift (an average
of 10 dB or more at 2000, 3000 and 4000 Hz in either ear) and to conduct
specific follow-up procedures as required in paragraph (g) of the standard.
Employers should be encouraged to use this information as a tracking tool for
focusing noise reduction and hearing protection efforts. The
Proposal The
proposed recordkeeping criterion for recording a case of hearing loss (61 FR
4064) was an average shift of 15 decibels (dB) or more at 2000, 3000, and
4000 hertz in one or both ears after the employee's hearing loss had been
adjusted for presbycusis (age-related hearing loss). OSHA proposed to permit
employers to delete the record of the hearing loss injury or illness if a
retest performed within 30 days indicated that the original shift was not
permanent. Once a 15 dB work-related shift had occurred, however, OSHA
proposed that the employee's baseline audiogram (for recordkeeping purposes)
be adjusted to reflect that loss. A subsequent audiogram would have to reveal
an additional 15 dB shift from the new or revised baseline value to be
considered a new hearing loss injury or illness. OSHA proposed to presume
work-relationship if an employee was exposed on the job to an 8-hour
time-weighted average noise level equaling 85 dB(A) (61 FR 4064). OSHA
also raised several issues related to hearing loss recording in the proposal
(61 FR 4064): The
lowest action level in the noise standard is an average shift of 10 decibels
or more at 2000, 3000 and 4000 hertz. OSHA is proposing the 15 decibel
criteria for recordkeeping purposes to account for variations in the
reliability of individual audiometric testing results. OSHA
asks for input on which level of a shift in hearing should be used as a
recording criteria; 10 decibels? 20 decibels? 25 decibels? For each level,
what baseline should be used? Preemployment (original) baseline? Audiometric
zero? Is adjusting for presbycusis appropriate? Comments
on the Proposal OSHA's
proposed recording criterion for hearing loss received more comments than the
proposed criterion for any other type of injury or illness other than
musculoskeletal disorders. The hearing loss comments cover a wide variety of
issues, including which hearing test results should or should not be
considered an OSHA recordable illness, the choice of baseline audiograms,
retesting and persistence of hearing loss, determining work relatedness, the
appropriateness of correcting audiograms for aging (presbycusis), and the role
of physicians and other licensed health care professionals in the
determination of recordable hearing loss cases. The issues raised by
commenters are organized by topic and discussed below. The
Definition of Recordable Hearing Loss There
was limited support among commenters for OSHA's proposed 15 dB shift
recording criterion (see, e.g., Exs. 15: 50, 61, 84, 111, 113, 156,
188, 233, 281, 289, 349, 407). However, many of these commenters supported
the use of a 15 dB shift as the recording criterion only if the final
recordkeeping rule also reflected other changes, such as eliminating the
correction for aging (see, e.g., Exs. 15: 50, 188, 407) or limiting
the recording of hearing loss to one case per worker per lifetime (Ex. 15:
349). For example, General Electric (Ex. 15: 349) suggested limiting the
recording of hearing loss to one case per employee: GE
supports recording an average standard threshold shift of 15 decibels (dB) or
more at 2000, 3000, and 4000 hertz in one or both ears, adjusted for presbycusis
and with a deletion upon retest as described. The establishment of the
recording criteria at a level slightly higher than STS requiring action in
the noise standards allows the employer the opportunity to take action before
the STS progresses to a recordable injury. GE recommends, however, that, to
reduce the administrative burden, the baseline not be revised after the
shift, that the original baseline be maintained and the hearing loss only be
recorded on the initial occasion of the 15 dB shift. George
R. Cook and Omar Jaurez, occupational audiologists (Ex. 15: 50), supported
the 15dB level only if no adjustment for aging was allowed: [t]he
Noise Standard has two loopholes in the identification of STS. First it
allows for revision of baseline when the loss is persistent. The Standard
does not identify persistence and it is possible to revise a baseline early
and subsequent STSs would be postponed. The second loophole is the allowance
of presbycusis which hides changes in hearing. Therefore, a criteria which
separates the recording criteria from STS and protects the required STS
follow-up is necessary. A 20 or 25 dB criteria is felt to be too much change. Most
of the commenters, however, did not support the proposed 15 dB criterion
(see, e.g., Exs. 22; 26; 15: 25, 45, 108, 110, 119, 137, 146, 154,
171, 177, 201, 203, 213, 218, 246, 251, 262, 278, 295, 310, 329, 331, 334,
343, 347, 348, 350, 358, 369, 394, 396, 405, 424). Most of these commenters
recommended a recording criterion of a 25 dB shift, i.e., the criterion used
in OSHA's interim enforcement policy (see, e.g., Exs. 22; 15: 45, 119,
137, 146, 154, 171, 177, 201, 203, 218, 246, 262, 278, 329, 331, 334, 343,
348, 358, 395, 424). Con Edison wrote "[l]owering the dB shift criteria
to 15 dB [from 25 dB] would result in recording cases which do not meet the
clinical definition of hearing loss" (Ex. 15: 213), and the Amoco
Corporation testified that OSHA should "[r]aise the hearing loss limit
to a more appropriate indication of material impairment" (Ex. 22). The
American Iron and Steel Institute (Ex. 15: 395) commented: The
appropriate recording trigger should be the loss of hearing recognized by the
American Medical Association (AMA) as the lowest indicator of any material
impairment to the employee's hearing. According to the AMA, a person has
suffered material impairment when testing reveals a 25 dB average hearing
loss from audiometric zero at 500, 1000, 2000, and 3000 hertz. OSHA itself
has recognized that this is the lowest level of hearing loss that constitutes
any material hearing impairment. see 46 Fed. Reg. 4083 (Jan. 18, 1981). Below
that level, an employee has suffered no noticeable injury or illness. The
American Iron and Steel Institute disagreed that a 10 or a 15 dB shift in
hearing should be recorded, stating that "While a 15 dB shift is
arguably closer to a serious injury than a 10 dB shift, neither is a
principled approximation of the onset of any disabling illness or injury, and
each is inconsistent with OSHA's acknowledgment in Forging Indus. Ass'n v.
Secretary of Labor, 773 F.2d 1436, 1447 n.18 (4th Cir. 1985), that no injury
results until a person experiences a 25 dB loss." (OSHA does not agree
with this characterization of its position.) Similarly,
the Monsanto Company commented "OSHA acknowledges in the Hearing
Conservation Amendment Standard that STS will occur and nothing is required
to be done to prevent it from occurring. Therefore, it cannot be a measure of
significantly impaired functional hearing capacity. In the preamble to this rule,
OSHA cites several excerpts of testimony supporting this position" (Ex.
15: 295). Vulcan
Chemicals commented that it "believes the present requirement [of a
hearing level shift of 25 dB for recordkeeping] is protective and recommends
that the recordable criteria should remain at 25 decibels" (Ex. 15:
171). New England Power justified its support for a 25 dB shift as the
recording criteria with the comment that there "is far too much
variability with an individual subject and the equipment to ensure accuracy"
(Ex. 15: 170), and Tosco, arguing in a similar vein, commented that the
"existing 25 dB shift provides an easily identifiable measurement for
determining injuries, and also provides for variation in background noise
during testing, variability of the employee's health/hearing capability on
the day being tested, as well as variation in the employee's home/social
lifestyle which may contribute to hearing loss" (Ex. 15: 246). The Can
Manufacturers Institute commented that a 25 dB shift criterion "would identify
as consequential change in hearing acuity that is irreversible and minimize
multiple recording of change over time" (Ex. 15: 331). There
was also support in the rulemaking record for using a 20 dB shift as a
criterion for recording hearing loss (see, e.g., Exs. 15: 108, 295,
396, 405, 423). Most of the reasons given for supporting this level were the
same as those provided as support for a 25 dB shift recording criterion. For
example, the Westinghouse Electric Corporation commented that a "20
decibel shift would not only allow for variances in individual audiometric
tests, but would also allow for the fact that workplace noise levels are
quite often more controlled and less severe than noise levels in the home
environment (e.g., trap shooting, stereo sound levels, lawn mowing,
and other types of non job-related activities)" (Ex. 15: 405).
Commenting that a 20 dB shift is two times the action level of a 10 dB shift
prescribed by OSHA's Occupational Noise standard (29 CFR 1910.95), Brown and
Root, Inc. suggested that this level "would allow for a program to be
initiated [at the action level] and working before a case becomes recordable.
If the program, however, is not as effective as desired, the recordable level
would require that the case be logged" (Ex. 15: 423). Finally, Union
Carbide Corporation argued that using a 20 dB shift as a recording criterion. [i]s
in the direction of simplicity since this is an even multiple of 10 dB, which
is the standard threshold shift and the action level for triggering certain
hearing conservation requirements. Having an even multiple makes it much
easier to track two different baselines one for the hearing conservation
requirements and one for recordkeeping requirements. Our experience has shown
that it is an administrative nightmare to track 10 dB baselines for hearing
conservation and 25 dB baselines for recordkeeping (Ex. 15: 396). Industrial
Health, Inc. (Ex. 15: 84), a mobile audiometry vendor, supported either a 10
dB or 15 dB persistent shift as the recording criterion and provided an
analysis, using their data base of over 4 million audiograms. Their comments
on the merits of the 10 dB and 15 dB options, and whether each change is
significant and noise related, are: Noise
relatedness: Using the OSHA shift formula across 2, 3 & 4 KHz (including
OSHA's corrections for aging), a persistent shift of either 10dB or 15dB
shows a strong correlation with audiogram patterns typical of exposure to
noise (our samples showed more than 85 percent of such shifts appeared to be
noise related, and most of the remainder had been flagged by the reviewing
audiologist as either medical referrals or cases where the employee had given
a medically related explanation for the shift in hearing). Hence, we conclude
that a persistent shift based on the OSHA shift formula with age correction,
whether 10 dB or 15 dB, is a reasonably accurate indication of a hearing
change due to noise exposure provided that medically related shifts are
excluded. Significance
of change: We calculated historic shifts based on both a 10 dB shift and a 15
dB shift on a sample industrial database. The following results are for
persistent shifts only. The results showed that 15 dB shifts occurred less
often than 10 dB shifts (as would be expected), with approximately 70% as
many 15 dB shifts as 10 dB shifts. When both shifts occurred for an employee,
most (over 80%) of the 15 dB shifts occurred at exactly the same test dates
as did the 10 dB shifts, although in some cases (less than 20%) the 15 dB
shifts occurred at later times. In general, the agreement was surprisingly
good -- much better than we had expected. In most (about 80%) of the
instances where a 10 dB shift occurred but a 15 dB shift did not, the
significance of the 10 dB shift was questionable when the actual data were
examined. Less than 5% of what we judged to be significant 10 dB shifts were
missed by the 15 dB rule. As
a result, our analysis indicates the following (based again on all shifts
having been demonstrated to be persistent): a.
A persistent 10 dB shift with age correction is a reasonably good yardstick
for significant change due to noise, although it does flag some changes which
are of questionable significance (perhaps as high as 20% of the shifts). b.
A persistent 15 dB shift with age correction is a better yardstick for
significant change due to noise. In our tests it produced roughly 70 percent
as many shifts as the 10 dB rule, but the difference was largely 10 dB shifts
of questionable significance. It did report some changes later than the 10 dB
rule and missed a few shifts (about 5%) which we judged to be of
significance. Finally,
there was strong support in the rulemaking record for using a 10 dB shift
(also identified as a standard threshold shift or STS in the OSHA Noise
standard) as a recording criterion for hearing loss (see, e.g., Exs.
26; 42; 15: 25, 110, 251, 310, 347, 350, 369, 394). For example, the American
College of Occupational and Environmental Medicine noted that the "STS
is the earliest reliable indication of measurable hearing loss for practical
purposes. This is the earliest practical level of early detection and
prevention of further loss is quite possible if the correct measures are
taken" (Ex. 15: 251). The Ford Motor Company agreed. Commenting that it
currently records any work-related hearing loss that results in an average
loss of 10 dB or more, the company noted that "[r]ecording hearing loss
in its early stage provides Ford the information to correct hazardous
conditions and prevent serious impairment to an employee" (Ex. 15: 347).
Ford further stated that its "method of recording occupational hearing
loss is consistent with the requirement of the Hearing Conservation Amendment
which requires notification to the employee." The Laborer's Health and
Safety Fund of North America also pointed out the inconsistency between
OSHA's proposed recording criterion in the recordkeeping rule and the
criterion in OSHA's occupational noise exposure standard. The Fund commented: "The
noise standard defines a 10 dB shift at 2, 3, and 4K as a standard threshold
shift and allows a revision of the baseline should the shift persist. Along
comes the recordkeeping rule which says that a 15 dB shift is recordable, and
a baseline revision (for recordkeeping purposes) can be made when a 15 dB shift
occurs. This situation is an administrative nightmare. It is possible that a
hearing loss will never be recordable because the 'baseline' is revised at a
10 dB shift. To avoid this situation, an employer would have to establish 2
different baselines, one for the noise standard provisions, and one for the
recordkeeping rule provisions. This situation is unacceptable. We recommend
that standard threshold shifts of 10 dB be used as the recordability
criteria, since it is consistent with the 1910.95 noise standard" (Ex.
15: 310). The
Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing (Exs. 26,
42) recommended a recording policy that would capture instances of
age-corrected STS, as defined in the OSHA noise standard, that are confirmed
as persistent and that are determined to be work-related. The Coalition's
comments are of particular interest because its members include professional
and scientific organizations dedicated to the issue of studying and
preventing hearing loss. Member associations include the American
Speech-Language-Hearing Association, the American Industrial Hygiene
Association, the National Hearing Conservation Association, the Acoustical
Society of America, the Council for Accreditation in Occupational Hearing
Conservation, Self Help for Hard of Hearing People, Inc. and the Institute
for Noise Control Engineering. These groups represent well over 100,000
audiologists, acousticians, speech-language pathologists, industrial
hygienists, safety and health professionals, and persons with hearing loss
(Ex. 42, page 1). The
Coalition provided the following reasons for relying on a 10 dB shift in
hearing as an OSHA recordable condition (Ex. 42, pp. 9-13). 1.
An allowance in the recording criteria for test-retest variability is
inappropriate (i.e. OSHA proposed the 15 dB criterion rather than the 10 dB
criterion "to account for variations in the reliability of individual
audiometric results." 2.
An age-corrected STS is a large hearing change that can affect communicative
competence. 3.
Typical occupational noise exposures do not justify a larger shift criterion. 4.
Recording OSHA STSs reduces the recordkeeping burden to industry. 5.
Current OSHA STS rates are not high. 6.
Recording OSHA STSs will promote effective hearing conservation programs. Other
commenters proposed still other criteria for recording hearing loss. For
example, Detroit Edison stated that a shift in hearing level should not be
used as a recording criterion for hearing loss because this "is not
indicative of an illness or injury, but only an indication that someone has
had a slight change in their ability to hear" and proposed instead that
"the level of hearing impairment should be used in recording hearing
losses versus a threshold shift as compared to a baseline" (Ex. 15: 377).
OSHA does not agree with this commenter, however, because, as the record in
the Noise standard rulemaking indicates, permanent threshold shifts do
indicate a non-minor impairment, although not all STSs are disabling. As
is the case for many OSHA rules, the 1981 Noise standard was challenged in
the courts, which stayed several provisions. In 1983, OSHA revised the
hearing conservation amendment to revoke many of the provisions stayed by the
court, lift an administrative stay implemented by OSHA, and make technical
corrections (48 FR 9738). One of those provisions involved the definition of
STS, which was renamed a "standard" rather than
"significant" threshold shift to help differentiate the two
separate methods used to calculate the STS in the 1981 and 1983 rules.
Although OSHA changed the calculation method used to establish an STS in
1983, the role and importance of the STS concept in the context of a hearing
conservation program was unchanged. The main reason for changing the
definition of STS in the 1983 standard was to simplify the original
calculation and address the concerns of employers and audiology professionals
who wished to avoid using a computer to calculate an STS. The standard
requires employers to take follow-up actions when an STS is identified,
notify the affected employee, evaluate and refit hearing protectors, retrain
the employee, and, if necessary, refer the employee for medical evaluation. The
arguments put forward by the Coalition to Preserve OSHA and NIOSH and Protect
Workers' Hearing (Exs. 26, 42) are, in OSHA's view, compelling reasons for
requiring employers to record on their Logs any case of work-related hearing
loss that reaches the level of an STS. OSHA is particularly persuaded by the
Coalition's argument that "An age-corrected STS is a large hearing
change that can affect communicative competence" because an
age-corrected STS represents a significant amount of cumulative hearing
change from baseline hearing levels. In the words of the Coalition, "For
an individual with normal hearing on the baseline audiogram, STS usually
involves age-corrected shifts of 15-20 dB at 3000 and 4000 Hz. For an
individual with pre-existing high-frequency hearing loss on the baseline, STS
usually involves substantial progression of the hearing loss into the
critical speech frequencies. The absolute shift values before age corrections
are considerably larger." The Coalition also stressed that the method of
averaging hearing loss at several frequencies, as is required to determine an
STS under the OSHA Noise standard, tends to "obscure the large hearing
shifts at individual frequencies which usually occur before the average
changes by a specified amount" (Ex. 42, p. 10). OSHA
has rejected, for recordkeeping purposes, the use of the 25 dB shift from audiometric
zero prescribed by the American Medical Association Guidelines for Material
Impairment. The AMA's 25 dB criterion is intended to be used to determine the
level at which the employee should be compensated for hearing loss-related
medical bills or lost time. In the context of occupational noise exposure,
hearing loss of this magnitude reflects a serious impairment of health or
functional capacity. As discussed in the Legal Authority section, however,
the Congress intended the OSHA recordkeeping system to capture all non-minor
occupational injuries and illnesses, and OSHA believes that an STS loss of
hearing represents such an injury. An STS is an abnormal condition that
should be recorded because it represents a material loss in hearing ability,
beyond the normal effects of aging. OSHA
has also rejected the 15 dB and 20 dB shift recording options, for several
reasons. First, although OSHA suggested in the proposal that an additional 5
dB beyond the 10-dB STS shift was needed to account for variability in
testing, this has not been supported by the record. As the Medical
Educational Development Institute (Ex. 15: 25) stated: "[t]est/re-test
reliability of 5 dB is well established in hearing testing. For example, the
Council on Accrediting Occupational Hearing Conservationists maintain this
range of reliability in their training guidelines and this is recognized in
American National Standard Method for Manual Pure-Tone Threshold Audiometry,
S3.21 -- 1978 (R1992)." The
Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing (Ex. 26)
provided additional justification for dropping the proposed rule's 5 dB
reliability margin: "The allowance for a retest (or even multiple
retests) should largely eliminate spurious shifts due to measurement error in
audiometry. In fact, one of OSHA's original reasons for choosing a
frequency-averaged shift (the OSHA STS) as a trigger level for employee
follow-up was that the frequency averaging process reduces the influence of
random audiometric variability." Because reliance on a
frequency-averaged rather than single frequency shift increases the
reliability of audiometric measurements, OSHA has not adopted NIOSH's
recommendation that the hearing loss criterion should be a 15 dB shift at any
frequency (Ex. 15: 407). Single frequency calculations are less reliable and
may therefore lead to the under- or over-recording of hearing loss cases
compared with the STS method of averaging loss over several frequencies. In
the final recordkeeping rule, OSHA has chosen to use the Occupational Noise
standard's STS -- an average shift in either ear of 10 dB or more at 2000,
3000, and 4000 hertz -- as the shift in hearing that must be recorded by an
employer on the OSHA log as a hearing loss case. An STS clearly represents a
non-minor injury or illness of the type Congress identified as appropriate
for recordkeeping purposes. The final rule allows the employer to adjust an
employee's hearing test results for presbycusis (age), to retest within 30
days (the employer is not required to record if there is a retest within 30
days and the retest refutes the original test), and to have the test results
evaluated by a physician or other licensed health care professional. Using
the STS as the recording criterion also meets one of the primary purposes of
this rulemaking, to improve the simplicity of the overall recordkeeping
system. Relying on the Noise standard's STS shifts avoids the complexity
referred to by many commenters (see, e.g., Exs. 15: 310, 396) of
maintaining multiple baselines for the Noise standard and the OSHA
recordkeeping rule. As the Laborers' Health & Safety Fund of North
America (Ex. 15: 310) commented: The
noise standard defines a 10 dB shift at 2,3, and 4K as a standard threshold
shift and allows a revision of the baseline should the shift persist. Along
comes the recordkeeping rule which says that a 15 dB shift is recordable, and
a baseline revision (for recordkeeping purposes) can be made when a 15 dB
shift occurs. This situation is an administrative nightmare. It is possible
that a hearing loss will never be recordable because the baseline is revised
at a 10 dB shift. To avoid this situation, an employer would have to
establish 2 different baselines, one for the noise standard provisions, and
one for the recordkeeping rule provisions. This situation is unacceptable. We
recommend that standard threshold shifts of 10 dB be used as the
recordability criteria, since it is consistent with the 1910.95 noise
standard. Several
commenters (see, e.g., Exs. 15: 295, 395) argued that OSHA itself had
discounted the significance of the 10 dB STS during the 29 CFR 1910.95
rulemaking. OSHA disagrees with this assessment of the Agency's position on
the importance of an STS. In the 1981 preamble to the Hearing Conservation
Amendment, OSHA found that a 10 dB shift in hearing threshold is significant
because it is outside the range of audiometric error and "it is serious
enough to warrant prompt attention" (46 FR 4144). The 1983 preamble
reinforces these findings. It states that: Correctly
identifying standard threshold shifts will enable employers and employees to
take corrective action so that the progression of hearing loss may be stopped
before it becomes handicapping. Moreover, a standardized definition of STS
will ensure that the protection afforded to exposed employees is uniform in
regard to follow-up procedures. * * * OSHA
reaffirms its position on the ideal criterion for STS which was articulated
in the January 16, 1981 promulgation (see 46 FR 4144). The criterion must be
sensitive enough to identify meaningful changes in hearing level so that
follow-up procedures can be implemented to prevent further deterioration of
hearing but must not be so sensitive as to pick up spurious shifts (sometimes
referred to as "false positives"). In other words, the criterion
selected must be outside the range of audiometric error (48 FR 9760). The
Fourth Circuit rejected an employer's argument that a 10 dB shift in hearing
threshold is insignificant. In its decision upholding OSHA's use of a 10 dB
STS as an action level in the Hearing Conservation Amendment, the court found
that: [t]he
amendment is concerned with protecting workers before they sustain an
irreversible shift. Consequently, it was incumbent upon the Agency to select
a trigger level that would protect workers by providing an early warning yet
not to be so low as to be insignificant or within the range of audiometric
error. We find that the Agency struck a reasonable balance between those
concerns. * * * Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1450 (1985)(en banc). OSHA
believes that many of the reasons stated in the 1983 preamble make the STS an
appropriate recording criterion for recordkeeping purposes. For example,
employers are familiar with the STS definition, which is also sensitive
enough to identify a non-minor change in hearing. Use of the STS also reduces
the confusion that would arise were OSHA to require employers to maintain two
baselines: one required by the Occupational Noise standard and one required
for recordkeeping purposes. Baseline
Audiogram In
its proposal, OSHA also asked for comment on which baseline should be used as
the starting point in determining recordable hearing loss. There was strong
support in the record for using the preemployment or original baseline for
this purpose (see, e.g., Exs. 26; 15: 25, 50, 78, 108, 110, 111, 113,
146, 154, 163, 181, 188, 218, 233, 262, 281, 295, 308, 348, 354, 402, 405),
although a few commenters proposed using audiometric zero (see, e.g.,
Ex. 15: 395). One commenter proposed that the reviewing professional should
determine the appropriate baseline on a case-by-case basis (Ex. 15: 175), and
another proposed that an audiologist should determine when a change in
baseline audiograms is warranted (Ex. 15: 203). Some commenters supported
adjusting the employee's baseline audiogram when a recordable hearing loss
case has been identified (see, e.g., Exs. 26; 15: 25, 108, 111, 146,
163, 290, 354, 405, 407). OSHA
agrees with those commenters who argued that the preemployment or original
baseline should be used as the benchmark from which to determine recordable
hearing loss. Using the preemployment or original baseline automatically
corrects for any hearing loss that may have occurred before the worker was
employed with his or her current employer and will prevent the recording of
cases of nonoccupational hearing loss. This policy is also consistent with
OSHA's Occupational Noise standard and therefore increases the simplicity of
the recording system. OSHA
also agrees that an employee's baseline audiogram should be adjusted if that
employee experiences a recordable hearing loss. Revising the baseline by
substituting the revised audiogram for the original audiogram after an STS
has occurred will avoid a second or third recording of the same STS. On the
other hand, recording hearing loss in a given worker only once would overlook
the additional hearing loss that may occur, either in the same or the other
ear, and would not be consistent with the definition of a "new"
case in Section 1904.6 of this rule, which requires employers to evaluate any
"new" case that results from exposure in the workplace for
recordability. Subsequent STS findings, i.e., further 10-dB shifts in hearing
level, are more serious events than the first STS, because of the
nonlinearity of the dB rating system and the progressive severity of
increasing hearing loss. A second or third STS in a given worker is therefore
also treated under the recordkeeping system as a recordable illness on the
OSHA 300 Log. The final rule makes this clear by requiring the employee's
audiogram to be compared to the preemployment baseline audiogram when the
worker has not experienced a recordable hearing loss, and to the audiogram
reflecting the most recent recorded hearing loss if the worker has
experienced a prior recorded hearing loss case. Correction
for Aging In
its proposal, OSHA included provisions allowing the employer to adjust the
results of audiograms for presbycusis (age-related hearing loss), and asked
for comment on whether an age correction is appropriate. The vast majority of
commenters agreed that it was (see, e.g., Exs. 26; 42; 15: 39, 45, 84,
113, 137, 163, 175, 201, 203, 262, 278, 281, 283, 331, 347, 348, 396, 405).
As the Westinghouse Hanford Company commented, "[t]he adjusting for
presbycusis is appropriate as the deterioration of the hearing related to age
is an important factor in determining the amount of hearing loss related to
workplace hazards" (Ex. 15: 108). Julia Royster, Ph.D. CC-A/SLP, agreed
with this view, stating that "Age-related hearing loss is inevitable.
There are individual differences in the rate of age-related hearing change
and the amount of hearing loss eventually shown due to presbycusis. However,
most people will eventually develop age-related hearing changes equivalent to
one or more OSHA STSs. Therefore, presbycusis corrections are necessary to
avoid attributing age-related hearing change to occupational causes"
(Ex. 26, Appendix C). However,
some commenters did not agree that the use of age corrections was appropriate
(see, e.g., Exs. 15: 50, 110, 188, 233, 407). For example,
Occupational Audiologists (Ex. 15: 50) pointed out that "[w]hen the
tables [in 29 CFR 1910.95] are applied they ignore any hearing loss that may
be present as a result of medical pathology or noise exposure prior to the
baseline hearing test," and therefore the "use of the presbycusis
tables hides significant changes in hearing thus delaying the STS required
procedures of follow-up, notification, fitting/re-fitting, educating and requiring
the wearing of hearing protection for some individuals." Similarly, John
P. Barry (Ex. 15: 110), commented: At
the 4000 Hz test frequency where occupational hearing loss first occurs,
application of the presbycusis correction may significantly reduce the noted
threshold shift relative to the employee's baseline audiogram. However, the
changes at 2000 and 3000 Hz often are equal to or less than the presbycusis
corrections. When these corrections are applied to actual audiometric data,
they mask the effects of occupational noise and hinder early detection of
noise-induced hearing loss. While hearing loss due to aging (presbycusis) and
hearing loss due to the non occupational environment (sociocusis) may account
for some of hearing loss noted in serial audiograms, there is no
scientifically valid way to correct the data for non occupational hearing
loss. * * * It is inappropriate use of statistics to apply median values from
one population on a different population when no foundation has been developed
to justify such manipulation of data. OSHA
recognizes that using the correction for presbycusis when interpreting
audiogram results is controversial among experts in the field of audiology
and that NIOSH has developed a new criteria document on occupational noise
exposure ("Criteria for a Recommended Standard; Occupational Noise
Exposure, Revised Criteria, 1998; U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention, National Institute for
Occupational Safety and Health; June 1998) which at present does not
recommend applying presbycusis correction values to actual employee
audiometric data. However, since the Occupational Noise standard itself
permits employers to adjust the interpretation of audiograms for the effects
of aging, it would be inconsistent and administratively complex to prohibit
this practice in the recordkeeping rule. Accordingly, § 1904.10(b)(3) allows
the employer to adjust for aging when determining the recordability of
hearing loss. The adjustment is made using Tables F-1 or F-2, as appropriate
(table F-1 applies to men and F-2 applies to women), in Appendix F of 29 CFR
1910.95. However, use of the correction for aging is not mandatory, just as
it is not mandatory in the Noise standard itself. Persistence
of Hearing Loss Yet
another issue surrounding the recording of hearing loss involves the timing
of the recording of a case on the OSHA forms when an audiogram has been
performed on an employee. The issue is whether the results of an audiogram
should be recorded within the interval for recording all cases, or whether
the audiogram should be verified with a retest before recording is required.
The proposed rule would have required the recording of hearing loss cases
within 7 calendar days of the first audiogram, but then would have permitted
employers to remove, or line out, a hearing loss case on the Log if a second
audiogram taken on that employee within 30 days failed to show that the STS
was persistent. Several commenters supported immediate recording with the 30
day retest provision (see, e.g., Exs. 15: 295, 350, 394, 407). The
Building and Construction Trades Department of the AFL-CIO (Ex. 15: 394)
noted that if a retest was not performed the case would never be recorded: We
support OSHA, however, on requiring cases to be recorded and then lined out
later if the loss does not persist. In construction, where a worker may never
get a follow-up test because they have moved to a different worksite, the
case needs to be recorded and presumed work-related. For construction workers
that is a very good presumption to make. These changes should lead to more
accurate reporting of hearing loss among construction workers. Other
commenters, however, did not agree with OSHA's proposal and believed the
shifts should be confirmed before recording on the Log is required (see, e.g.,
Exs. 26; 42; 15: 50, 84, 175, 181, 188, 201, 203, 331). Impact Health
Services (Ex. 15: 175) expressed its opinion that The
new hearing loss criterion should require recording of only confirmed work-related
shifts in hearing. * * * There is no question that it is in the best interest
of the hearing conservation program to identify shifts in hearing while they
are still temporary so that follow-up action can be taken immediately to
prevent permanent hearing loss. * * * However, requiring companies to record
all shifts (both temporary and persistent) within six (proposed seven) days
may have an unintended punitive effect. Companies are usually hesitant to
record any incidents on Form 200 (proposed Form 300), even if lining-out the
event at a later date is an option. Therefore, disallowing the OSHA 30-day
retest for recording purposes may have a negative impact on programs which
are designed to prevent hearing loss. By requiring recording of all shifts within
seven days, companies may actually discontinue programs of conducting annual
testing during the work shift, due to a reluctance to identify (and record)
temporary threshold shift. To
address the problem identified by the Building and Construction Trades
Department of the AFL-CIO, Impact Health Services recommended that "[i]f
a follow-up audiogram is not administered within 30 days of determination, or
if the follow-up audiogram confirms the shift, then the shift is considered
persistent and if determined to be work related, must be recorded on Form
300" (Ex. 15: 175). The American Association of Occupational Health
Nurses (Ex. 15: 181) noted that it "would require less paperwork to
record the hearing loss after confirmation by a re-test in thirty days,
rather that recording the initial shift and then having to 'line out' the
entry if the re-test was not indicative of any hearing loss." The
Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing (Exs. 26;
42) stated: This
urgency [as reflected in the proposal's provision requiring recording within
7 days] in recording unconfirmed shifts does not appear justified and creates
additional burdens for the employer. The coalition recommends the following
more efficient and suitably protective approach: --
Only confirmed (i.e., persistent) work-related STSs are to be recorded on
Form 300, unless a follow-up audiogram is not administered. --
If a follow-up audiogram is not administered within 30 days of the initial
determination of STS, or if the follow-up audiogram confirms the STS, then
the shift is considered persistent, and if determined to be work-related,
must be recorded on Form 300. * * * --
If a follow-up audiogram given within 30 days of the initial determination of
the STS does not confirm the STS, nothing is to be recorded on Form 300. The
Coalition also recommended that employers be allowed to remove, or line-out,
recorded hearing losses that are not confirmed by subsequent retesting, or
are found not to be work-related, within 15 months of the initial STS
identification, at the discretion of the reviewing professional. Such a
provision would allow employers to remove cases if the next annual audiogram
showed an improvement in hearing (Exs. 26; 42). Several
commenters discussed the length of time OSHA should allow between the
audiogram on which the STS was first detected and the confirmatory retest.
The International Dairy Food Association suggested that allowing only a
30-day period "may not be feasible in many situations where mobile van
testing is utilized. * * * Thirty days are easily consumed during the
compiling, mailing, interpreting, mailing, evaluation process" (Ex. 15:
203). The Association recommended instead that "OSHA increase the
current requirement of 30 days to 45 days to allow employers and employees to
obtain a re-test following an annual audiogram" (Ex. 15: 403). For the
same reasons, the Can Manufacturers Institute recommended that retests be
permitted within 90 days of the original test, noting that "[t]here is
no magic regarding the current 30 day span" (Ex. 15: 331). Industrial
Health Inc. commented that "there's no rush" to retest and stated
its preference for a time lapse longer than 30 days "[i]n order to allow
temporary [hearing loss] effects to subside" (Ex. 15: 84). NIOSH (Ex.
15: 407) proposed that a confirmatory retest be permitted at any time
provided that the retest was preceded by a 14-hour period of quiet. After
a review of the record on this point, OSHA has decided to require that any
retest the employer chooses to perform be conducted within 30 days.
Accordingly, in the final rule, at paragraph 1904.10(b)(4), employers are
permitted, if they choose, to retest the employee to confirm or disprove that
an STS reflected on the first audiogram was attributable to a cold or some
other extraneous factor and was not persistent. If the employer elects to
retest, the employer need not record the case until the retest is completed.
If the retest confirms the hearing loss results, the case must be recorded
within 7 calendar days. If the retest refutes the original test, the case is
not recordable, and the employer does not have to take further action for
OSHA recordkeeping purposes. The 30 day limit in the final recordkeeping rule
is consistent with the 30 day retest provision of § 1910.95(g)(5)(ii), which
allows the employer to obtain a retest within 30 days and consider the
results of the retest as the annual audiogram if the STS recorded on the
first test is determined not to persist. OSHA
believes that the 30 day retest option allows the employer to exclude false
positive results and temporary threshold shifts from the data while ensuring
the timely and appropriate recording of true positive results. Adding
language to the final recordkeeping rule to specify different procedures,
depending on whether the employer chooses to conduct a re-test within 30
days, adds some complexity to the final rule, but OSHA finds that this added
complexity is appropriate because it will reduce burden for some employers
and improve the accuracy of the hearing loss data. Work-Relationship One
of the greatest sources of controversy in the record concerning OSHA's
proposed criterion for recording hearing loss relates to the presumption of
work-relationship in cases where an employee is exposed to an 8-hour
time-weighted average sound level of noise equaling or exceeding 85 dB(A) (61
FR 4064). One commenter supported the recordkeeping proposal's approach on
this matter. NIOSH (Ex. 15: 407) recommended that work-relationship be
presumed "if an employee is exposed to an 8-hour time-weighted sound
level of noise equaling or exceeding 85 dB(A) or to peak sound levels
equaling or exceeding 115 dB(A) regardless of brevity or infrequency."
Several commenters advocated presuming work-relatedness if the employee
experienced occupational exposures to 85 dB unless medical evidence showed
that the hearing loss was not related to work (see, e.g., Exs. 15: 39,
50, 146, 171, 188). For example, BF Goodrich (Ex. 15: 146) asked that
"[O]SHA give employers the opportunity to refute the work relationship
for employees found to have other than noise-induced hearing loss. If the
employee is examined by an otolaryngologist or other qualified health
professional and found to have a medical condition that causes hearing loss, the
case should not be recordable." Several
commenters objected to the proposed presumption of work-relationship (see, e.g.,
Exs.15: 201, 263, 283, 289, 305, 318, 334, 390). The National Association of
Manufacturers commented that "There is no justification for presuming
that hearing loss is work-related simply because an employee is exposed to an
8-hour time weighted average sound level of noise of 85 dB(A) or higher, even
if it were a daily exposure and particularly where it could be as infrequent
as once per year" (Ex. 15: 305). Many commenters agreed with Mississippi
Power, which wrote "[t]he presumption of work relationship does not
consider other potentially significant noise exposures such as noisy hobbies,
or other noisy activities not associated with occupational noise
exposures" (Ex. 15: 263). Deere & Company argued that "OSHA is
not taking into account the noise-reducing effect of an effective hearing
conservation program nor does it take into account the often significant
noise exposure that many employees have away from the workplace " (Ex.
15: 283). There
are numerous suggestions in the record on how best to deal with the
presumption of work-relationship. Impact Health Services Inc., and others
suggested that a case be considered work-related "when in the judgement
of the supervising audiologist or physician, the shift is due in full or in
part to excessive noise exposure in the workplace" (Ex. 15: 175). Akzo
Nobel Chemicals proposed that work-relationship be presumed when "there
is no other reasonable non-work related explanation" (Ex. 37), and the
National Grain and Feed Association suggested "that if an employer has
an active and an enforceable hearing conservation program in place, the
presumption should be that any hearing loss experienced by an employee is not
work related unless it can be shown to be otherwise" (Ex. 15: 119). A
number of commenters agreed with the comment of the Edison Electric Group
that "OSHA should also establish a criteria of exposure to noise at or
above the 85 dB(a) TWA action level of 30 or more days per year before the
case is recordable" because "[a] single day's exposure at or below
the PEL will not cause hearing loss" (Ex. 15: 401), and NIOSH proposed
that work-relationship be presumed "if an employee is exposed to an
8-hour time-weighted sound level of noise equaling or exceeding 85 dB(A) or
to peak sound levels equaling or exceeding 115 dB(A) regardless of brevity or
infrequency" (Ex. 15: 407). In
the final rule, OSHA has continued to rely on a presumption of work-relationship
for workers who are exposed to noise at or above the action levels specified
in the Occupational Noise standard (29 CFR 1910.95). In line with the overall
concept of work relationship adopted in this final rule for all conditions,
an injury or illness is considered work related if it occurs in the work
environment. For workers who are exposed to the noise levels that require
medical surveillance under § 1910.95 (an 8-hour time-weighted average of 85
dB(A) or greater, or a total noise dose of 50 percent), it is highly likely
that workplace noise is the cause of or, at a minimum, has contributed to the
observed STS. It is not necessary for the workplace to be the sole cause, or
even the predominant cause, of the hearing loss in order for it to be work-related.
Because the final recordkeeping rule relies upon the coverage of the
Occupational Noise standard, it is also not necessary for OSHA to include a
minimum time of exposure provision. The Occupational Noise standard does not
require a baseline audiogram to be taken for up to six months after the
employee is first exposed to noise in the workplace, and the next annual
audiogram would not be taken until a year after that. For any worker to have
an applicable change in audiogram results under the Occupational Noise
standard, the worker would have been exposed to levels of noise exceeding 85
dB(A) for at least a year, and possibly even for 18 months. In
addition, the provisions allowing for review by a physician or other licensed
health care professional allow for the exclusion of hearing loss cases that
are not caused by noise exposure, such as off the job traumatic injury to the
ear, infections, and the like. OSHA notes that this presumption is consistent
with a similar presumption in OSHA's Occupational Noise standard (in both
cases, an employer is permitted to rebut this presumption if he or she
suspects that the hearing loss shown on an employer's audiogram in fact has a
medical etiology and this is confirmed by a physician or other licensed
health care professional). Miscellaneous
Issues Other
issues addressed by commenters to the rulemaking record on OSHA's proposed
criterion for recording hearing loss included whether OSHA should treat
hearing levels for each ear separately for recording purposes. Impact Health
Services, Inc. (Ex. 15: 175) recommended that proposed Appendix B specify
that shifts in hearing be calculated separately for each ear: Because
an individual's left and right ears may be affected differently by noise or
other occupational injury, it is important that Appendix B specifies that
shifts in hearing are to be calculated separately for each ear. Arguing
along similar lines, the Chevron Companies raised the issue of revising
baselines for both ears when a standard threshold shift is recorded in only
one ear. They commented: The
proposed rule discusses an average shift in one or both ears and establishing
a new or revised baseline for future tests to be evaluated against. In
discussing the new or revised baseline however the proposed rule does not
give guidance on revision when only one ear meets the revision criteria (15
dB or 25 dB or whatever the final rule states). Are the baselines for both
ears revised or only the ear meeting the criteria? This issue should be
clearly addressed in the final rule. Usually noise induced hearing loss is a
symmetrical event so it would be reasonable to revise the baselines for both
ears. If the baselines are to be revised individually one could anticipate
more hearing losses being recorded than if they are revised in unison.
Therefore, for Hearing Conservation Program statistics to be meaningful and
comparable, baseline revision must be handled the same across industries (Ex.
15: 343). Shifts
in hearing must be calculated separately for each ear, in accordance with the
requirements of § 1910.95. However, if a single audiogram reflects a loss of
hearing in both ears, only one hearing loss case must be entered into the
records. The issue of revising baseline audiograms to evaluate the extent of
future hearing loss pertains to a hearing loss case that has been entered on
the Log. If a single-ear STS loss has been recorded on the Log, then the
baseline audiogram should be adjusted for that ear, and that ear only. If an
STS affecting both ears has been recorded on the Log, then the baseline
audiogram may be revised and applied to both ears. This means that there
should be no cases where the baseline audiogram has been adjusted and the
case has not been recorded on the Log. The
Medical Educational Development Institute (Ex. 15: 25) made several
recommendations for changing OSHA's noise standard, 29 CFR 1910.95, to add
specific steps to be taken when a 10 dB STS occurs, such as employee
interviews, reevaluations with medical personnel, physician referral, labeling
of revised baseline audiograms, and reassignment to quieter work for workers
with a second or subsequent STS. These are interesting recommendations, but
they address issues that are beyond the scope of this rulemaking. This
rulemaking is concerned only with the Part 1904 requirements for recording
occupational hearing loss on the OSHA 300 Log, and does not affect any
provision of the OSHA Occupational Noise standard. Phillips
Petroleum (Ex. 15: 354) raised another miscellaneous issue when it suggested
that OSHA phase in the recording of audiometric tests if a more protective
definition of hearing loss was adopted in the final rule: [i]f
OSHA insists on the recording of hearing loss at the 15 dB, it would
artificially inflate the number of recordable hearing-loss cases and have a
similar effect as that of the severity issue. We recommend that if the
recordability bar is lowered from 25 dB], OSHA allow a transition period
where a 15 dB shift is listed on the log, but is not counted in the
recordable total. This should continue for a transition period of three years
to allow facilities to identify all employees affected. Any employees who
were not identified during the transition period would become recordables
with a 15 dB hearing loss after the transition period. OSHA
does not believe that a transition period is needed for the recording of
occupational hearing loss or any other type of injury or illness included in
the records. Adding such a provision would add unnecessary complexity to the
rule, and would also create an additional change in the data that would make
it difficult to compare data between the two years at the end of the
transition. OSHA finds that it is better to implement the recordkeeping
changes as a single event and reduce the impacts on the data in future years. As
noted previously, OSHA is not making any changes to its noise standards in
this Part 1904 rulemaking, and thus no additional protections are being
provided in this final rule. Section 1904.11 Additional Recording Criteria for Work-Related
Tuberculosis Cases Section
1904.11 of the final rule being published today addresses the recording of
tuberculosis (TB) infections that may occur to workers occupationally exposed
to TB. TB is a major health concern, and nearly one-third of the world's
population may be infected with the TB bacterium at the present time. There
are two general stages of TB, tuberculosis infection and active tuberculosis
disease. Individuals with tuberculosis infection and no active disease are
not infectious; tuberculosis infections are asymptomatic and are only
detected by a positive response to a tuberculin skin test. Workers in many
settings are at risk of contracting TB infection from their clients or
patients, and some workers are at greatly increased risk, such as workers
exposed to TB patients in health care settings. Outbreaks have also occurred
in a variety of workplaces, including hospitals, prisons, homeless shelters,
nursing homes, and manufacturing facilities (62 FR 54159). The
text of § 1904.11 of the final rule states: (a)
Basic requirement. If any of your employees has been occupationally exposed
to anyone with a known case of active tuberculosis (TB), and that employee
subsequently develops a tuberculosis infection, as evidenced by a positive
skin test or diagnosis by a physician or other licensed health care
professional, you must record the case on the OSHA 300 Log by checking the
"respiratory condition" column. (b)
Implementation. (1)
Do I have to record, on the Log, a positive TB skin test result obtained at a
pre-employment physical? No,
because the employee was not occupationally exposed to a known case of active
tuberculosis in your workplace. (2)
May I line-out or erase a recorded TB case if I obtain evidence that the case
was not caused by occupational exposure? Yes.
you may line-out or erase the case from the Log under the following
circumstances: (i)
The worker is living in a household with a person who has been diagnosed with
active TB; (ii)
The Public Health Department has identified the worker as a contact of an
individual with a case of active TB unrelated to the workplace; or (iii)
A medical investigation shows that the employee's infection was caused by
exposure to TB away from work, or proves that the case was not related to the
workplace TB exposure. The
Proposal The
proposed rule included criteria for the recording of TB cases in proposed
Appendix B. In that appendix, OSHA proposed to require the recording of cases
of TB infection or disease at the time an employee first had a positive tuberculin
skin test, except in those cases where the skin test result occurred before
the employee was assigned to work with patients or clients. The proposal
stated that cases of TB disease or TB infection would be presumed to be
work-related if they occurred in an employee employed in one of the following
industries: correctional facilities, health care facilities, homeless
shelters, long-term care facilities for the elderly, and drug treatment
centers. In other words, the proposal contained a "special industries"
presumption for those industries known to have higher rates of occupational
TB transmission. OSHA proposed to allow employers to rebut the presumption of
work-relatedness if they could provide evidence that the employee had been
exposed to active TB outside the work environment. Examples of such evidence
would have included (1) the employee was living in a household with a person
who had been diagnosed with active TB, or (2) the Public Health Department
had identified the employee as a contact of an individual with a case of
active TB. For employees working in industries other than the
"special" industries, OSHA proposed that a positive skin test
result be considered work-related when the employee had been exposed to a
person within the work environment who was known to have TB disease. Under
the proposal, an employee exhibiting a positive skin test and working in
industries other than those listed would otherwise not be presumed to have
acquired the infection in the work environment (61 FR 4041). As noted in the
proposal, these recording criteria for TB were consistent with those
published previously in OSHA directives to the field (February 26, 1993 memo
to Regional Administrators). The final rule permits employers to rebut the
presumption of work-relatedness in cases of TB infection among employees but
does not rely on the "special industries" approach taken by OSHA in
the proposal, for reasons explained below. Positive
Skin Tests Several
comments in the record supported OSHA's proposed recording criteria for
occupational TB cases (see, e.g., Exs. 15: 72, 133, 198). A number of
commenters, however, questioned whether a positive tuberculin skin test
reaction should be considered a recordable occupational illness (Ex. 15: 146,
188, 200). For example, BF Goodrich wrote: We
disagree with a positive skin test reaction as the criterion for recording a
TB case. Such tests are only indicative of a past exposure, not necessarily
an illness or a condition. OSHA should allow diagnosing medical professionals
to use their professional judgement to confirm active TB cases and restrict
recordability to those cases (Ex. 15: 146). Kaiser
Permanente (Ex. 15: 200) argued: The
presumption that an initial positive skin test result or diagnosed
tuberculosis in a health care employee is occupationally based is not
warranted. While there have been outbreaks in health care facilities
documented in the literature, and while skin test conversion does occur in
health care workers and may in given cases be occupationally related, the Kaiser
Permanente experience has not been characterized by outbreaks or significant
rates of skin test conversion. Diagnosed cases of tuberculosis among Kaiser
Permanente health care workers are extremely rare. OSHA
views the situation differently. A positive tuberculin skin test indicates
that the employee has been exposed to Mycobacterium tuberculosis and
has been infected with the bacterium. Although the worker may or may not have
active tuberculosis disease, the worker has become infected. Otherwise, his
or her body would not have formed antibodies against these pathogens. (OSHA
is aware that, in rare situations, a positive skin test result may indicate a
prior inoculation against TB rather than an infection.) OSHA
believes that TB infection is a significant change in the health status of an
individual, and, if occupational in origin, is precisely the type of illness
Congress envisioned including in the OSHA injury and illness statistics.
Contracting a TB infection from a patient, client, detainee, or other person
in the workplace would cause serious concern, in OSHA's view, in any
reasonable person. Once a worker has contracted the TB infection, he or she
will harbor the infection for life. At some time in the future, the infection
can progress to become active disease, with pulmonary infiltration,
cavitation, and fibrosis, and may lead to permanent lung damage and death. An
employee harboring TB infection is particularly likely to develop the
full-blown disease if he or she must undergo chemotherapy, contracts another
disease, or experiences poor health. According to OSHA's proposed TB rule (62
FR 54159), approximately 10% of all TB infections progress at some point to
active disease, and it is not possible to predict in advance which
individuals will do so. OSHA
also believes that it is important to require employers to record TB cases
when an employee experiences a positive skin test because doing so will
create more timely and complete statistics. If, for example, OSHA were to
require recording only when the worker develops active TB, many cases that
were in fact occupational in origin would go unrecorded. In such cases, if
the worker had retired or moved on to other employment, the employer would
generally not know that the employee had contracted active TB disease, and
the case would never be included in the Nation's occupational injury and
illness statistics and important information would be lost. Thus, requiring
the recording of a case at the infection stage will create more accurate,
complete and useful statistics, one of the major goals of this rulemaking. Several
commenters suggested that TB should not be recorded at all because, in their
view, acquiring TB infection is not within the control of the employer and is
not amenable to control by an employer's safety and health program (see, e.g.,
Exs. 15: 316, 348, 414, 423). For example, Raytheon Engineers &
Constructors (Ex. 15: 414) argued that TB infection and disease should not be
recorded because it "is not due to a condition of the work environment
under the control of the employer." Dupont argued along similar lines: It
does not make sense to record tuberculosis cases where an infectious worker
infects co-workers. That has nothing to do with job activity or with the
workplace except as an accidental exposure. The same type of thinking could
apply to flu symptoms, "colds", conjunctivitis, etc., where lack of
personal hygiene or a strong "germ" migrated through the workplace.
If the exposure is not part of the job activity, none of the cases mentioned,
including tuberculosis, should be recorded (Ex. 15: 348). As
discussed elsewhere in this document (see the Legal Authority section above),
Congress did not intend OSHA's recordkeeping system only to capture
conditions over which the employer has complete control or the ability to
prevent the condition. The Act thus supports a presumption of
work-relatedness for illnesses resulting from exposure in the workplace, and
the OSHA recordkeeping system has always reflected this position (although a
few specific exceptions to that presumption are permitted, including an
exception for common colds and flu). In accordance with that presumption,
when an employee is exposed to an infectious agent in the workplace, such as
TB, chicken pox, etc., either by a co-worker, client, patient, or any other
person, and the employee becomes ill, workplace conditions have either caused
or contributed to the illness and it is therefore work-related. Since, as
discussed above, TB infection is clearly a serious condition, it is non-minor
and must be recorded. Employee-to-Employee
Transmission Two
commenters argued that transmission from employee to employee should not be
considered work-related (Exs. 15: 39, 348). The RR Donnelley & Sons
Company (Ex. 15: 39) pointed out that an employer "may never know that a
fellow employee has tuberculosis. To record personal transmission from one
employee to another goes beyond the scope of work relatedness." Other
commenters agreed with OSHA that, at least under certain circumstances, employee-to-employee
transmission should be considered work-related (see, e.g., Exs. 15:
78, 218, 361, 398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated
that "[i]f a worker with infectious tuberculosis disease infected their
co-worker, the co-workers' infection/disease would be recordable." Again,
as discussed above, OSHA believes, under the positional theory of causality,
that non-minor illnesses resulting from an exposure in the work environment
are work-related and therefore recordable unless a specific exemption to the
presumption applies. Infection from exposure to another employee at work is
no different, in terms of the geographic presumption, from infection
resulting from exposure to a client, patient, or any other person who is
present in the workplace. The transmission of TB infection from one employee
to another person at work, including a co-worker, clearly is non-minor and is
squarely within the presumption. Special
Industry Presumptions Many
of the commenters supported OSHA's proposed approach of assuming
work-relatedness for TB cases if the infection occurred in workers employed
in certain special industries (see, e.g., Exs. 24, 15: 78, 345, 376,
407). Other commenters suggested that OSHA abandon the proposed special
industry presumption (see, e.g., Exs. 15: 197, 200, 225, 259, 279,
302, 341, 431, 436). In the proposed rule, OSHA proposed different
work-relatedness criteria for different work environments, i.e., in
industries in which published reports of TB outbreaks were available from the
Centers for Disease Control and Prevention (CDC), a special presumption would
prevail, while in industries in which occupational transmission had not been
documented it would not. Kaiser
Permanente commented that the CDC "Guidelines for Preventing the Transmission
of Mycobacterium Tuberculosis in Health-Care Facilities establish facility
risk levels for occupational transmission of tuberculosis based upon
assessment of a range of relevant criteria such as job duties, incidence of
TB patients treated, and community TB rates" and urged OSHA to follow
these in the final rule (Ex. 15: 200). Two
commenters objected to the inclusion of nursing homes in the list of
industries in which the special industry presumption would apply (Exs. 15:
259, 341). For example, the American Health Care Association (AHCA)
suggested: [i]t
should not be presumed that exposure is work-related in all long term care
facilities for the elderly. Depending upon the facility and/or its location,
the incidence of TB infection/disease in the facility may be less than that
of the general public. The Centers for Disease Control and Prevention
recognizes that even within certain settings, there are varying levels of
risk (minimal to high). TB linkage to the facility should be based on the
level of risk using the CDC assessment system, with work relatedness assigned
to facilities within the moderate to high risk classification (Ex. 15: 341). Two
commenters suggested OSHA add more industries to the proposed list of
industries to which the special industry presumption would apply. The
American Nurses Association (ANA) told the Agency that "There should be
no question on the inclusion of the home health arena under the rubric of
health care facilities. The risk of transmission exists in all health care
work sites including home health sites and must not be limited to traditional
health care facilities' (Ex. 15: 376). Alliant Techsystems (Ex. 15: 78)
suggested adding "Industries that causes exposure outside the United
States such as the airline sector." Some
commenters argued that recording should be limited only to TB cases occurring
in workers in specific industries, i.e., that no case of TB in other
industries, no matter how transmitted or when diagnosed, should be recordable
(see, e.g., Exs. 15: 351, 378, 396). Westinghouse Electric Corporation
recommended that "Tuberculosis exposure or disease cases outside of
listed industries where cases would be prevalent (such as health care
facilities, long-term care facilities, etc.) should not be recordable as an occupational
illness. The logical source of exposure would be non work-related and outside
the premises of the employer's establishment." Likewise, the Air
Transport Association (Ex. 15: 378) suggested that TB recording
"[s]hould be limited to medical work environments rather than general
industry. The administrative burden far exceeds the expected benefits." OSHA
is aware that the relative risk of TB, and of all occupational injuries and
illnesses, varies widely from industry to industry and from occupation to
occupation. However, OSHA does not consider this circumstance relevant for
recordkeeping purposes. The fact that ironworkers experience a higher
incidence of falls from elevation than do carpenters does not mean that
carpenters' injuries from such falls should not be recorded. Congress clearly
intended information such as this to be used by individual employers and to
be captured in the national statistical program. Again, because TB infection
is a significant illness wherever in the workplace it occurs, and because no
exemption applies, it must be recorded in all covered workplaces.
Accordingly, in the final rule being published today, TB cases are recordable
without regard to the relative risk present in a given industry, providing
only that the employee with the infection has been occupationally exposed to
someone with a known case of active tuberculosis. Employers may rebut the
presumption only if a medical investigation or other special circumstances
reveal that the case is not work-related. In
the final rule, OSHA has not adopted the "special industries"
presumption, for several reasons. First, doing so would be inconsistent with
the approach taken by the Agency in other parts of the rule, i.e.,
specific industries have not been singled out for special treatment
elsewhere. Second, a "special industries" presumption is not needed
because the approach OSHA has taken in this section will provide employers
with better ways of rebutting work-relatedness when that is appropriate.
Finally, the special industries approach is not sufficiently accurate or well
enough targeted to achieve the intended goal. Many cases of occupationally
transmitted TB occur among employees in industries other than the
"special industries," and evidence shows that the risk of TB infection
varies greatly among facilities in the special industries. Other
Suggestions for Determining the Work-Relatedness of TB Cases A
number of commenters provided other suggestions for determining the
work-relatedness of TB cases (see, e.g., Exs. 15: 39, 154, 181, 188,
200, 218, 226, 335, 393, 407, 431, 436). The
Society for Human Resource Management stated: Workers
are exposed to tuberculosis in many places other than the work site: it would
be unduly burdensome to require employers to provide evidence that the
employee has had non-work exposure. Since the employee is in the best
position to retrace his or her activities, he or she should be required to
provide evidence to establish work-relatedness (Ex. 15: 431). OSHA
does not agree that the employee is in a better position than the employer to
know whether an employee has been exposed to TB at work. For example, the
worker is not as likely to know whether a co-worker, patient, client, or
other work contact has an active TB case. To determine whether exposure to an
active case of TB has occurred at work, the employer may interview the
employee to obtain additional information, or initiate a medical
investigation of the case, but it would be inappropriate to place the burden
of providing evidence of work-relationship on the employee. The
American Ambulance Association (Ex. 15: 226) did not support the proposed
approach of reporting an employee's positive tuberculin skin test reaction
"unless there has [also] been documentation of a work-related
exposure." The American Network of Community Options and Resources
(ANCOR) argued "ANCOR strongly opposes the inclusion of tuberculosis
unless the infection is known to have been caused at work due to a known,
active carrier" (Ex. 15: 393). The American Association of Occupational
Health Nurses (AAOHN) proposed that the criteria for recording TB infection
or illness be "[a]n employee tests positive for tuberculosis infection
after being exposed to a person within the work environment known to have
tuberculosis disease and the positive test results are determined to be
caused by the person in the workplace with tuberculosis disease" (Ex.
15: 188). Several
commenters suggested that the first case of TB occurring in the workplace
should not be recordable (see, e.g., Exs. 15: 218, 361, 398). In two
separate comments, the Association for Professionals in Infection Control
(APIC) recommended: [a]s
an acceptable rebuttal to the presumption of work relationship when an
employee is found to be infected with tuberculosis or to have active disease.
The employer is able to demonstrate that no other employee with similar
duties and patient assignments as the infected employee was found to have
tuberculosis infection or active disease (Exs. 15: 361, 398). In
addition, Bell Atlantic (Ex. 15: 218) proposed that public health agencies be
charged with determining the work-relationship of cases of TB in the
workplace. Bell Atlantic's comments to the rulemaking record were as follows: Bell
Atlantic does not agree that tuberculosis cases should be inherently
reported. The first identified incidence of tuberculosis in an employee group
probably was not contracted in the workplace. However, if Public Health
Officials deem it necessary to require TB testing in the facility as a
preventive measure, and new cases are found, these may be recordable. The
criteria here is one of public health, and where the disease initiated. The
Public Health Agencies would be charged with investigation of family members,
friends, and the community away from work. A
number of commenters misunderstood the proposal as allowing the geographic
presumption of work-relationship only to be rebutted in certain "high
risk" industries. For example, Alcoa commented that "OSHA seems to
conclude * * * that if someone in your workforce has TB then each person in
the workplace who tests positive is now considered as having work-related TB
due to the incidental exposure potential" (Ex. 15: 65). ALCOA suggested
that the final rule allow the geographic presumption of work-relationship to
be rebutted for "all other industries." OSHA
agrees that a case of TB should be recorded only when an employee has been
exposed to TB in the workplace (i.e., that the positional theory of
causation applies to these cases just as it does to all others). OSHA has
added an additional recording criterion in this case: for a TB case occurring
in an employee to be recordable, that employee must have been exposed at work
to someone with a known case of active tuberculosis. The language of the
final rule addresses these concerns: "If any of your employees has been
occupationally exposed to anyone with a known case of active tuberculosis, *
* *" Under the final rule, if a worker reports a case of TB but the
worker has not been exposed to an active case of the disease at work, the
case is not recordable. However, OSHA sees no need for the employer to
document such workplace exposure, or for the Agency to require a higher level
of proof that workplace exposure has occurred in these compared with other
cases. Further, OSHA knows of no justification for excluding cases simply
because they are the first or only case discovered in the workplace. If a
worker contracted the disease from contact with a co-worker, patient, client,
customer or other work contact, the case would be work-related, even though
it was the first case detected. Many work-related injury and illness cases
would be excluded from the recordkeeping system if cases were only considered
to be work-related when they occurred in clusters or epidemics. This was clearly
not Congress's intent. The
final rule's criteria for recording TB cases include three provisions
designed to help employers rule out cases where occupational exposure is not
the cause of the infection in the employee (i.e., where the infection
was caused by exposure outside the work environment). An employer is not
required to record a case involving an employee who has a positive skin test
and who is exposed at work if (1) the worker is living in a household with a
person who has been diagnosed with active TB, (2) the Public Health
Department has identified the worker as a contact of a case of active TB
unrelated to the workplace, or (3) a medical investigation shows that the
employee's infection was caused by exposure to TB away from work or proves that
the case was not related to the workplace TB exposure. The
final rule thus envisions a special role for public health departments that
may investigate TB outbreaks but does not permit employers to wait to record
a case until a public health department confirms the work-relatedness of the
case. In addition, the final rule's provisions for excluding cases apply in
all industries covered by the recordkeeping rule, just as the recording
requirements apply to all industries. The final rule thus does not include
the "special industries" approach of the proposal. As discussed
above, the Agency has rejected this proposed approach because it would not
have been consistent with the approach OSHA has taken elsewhere in the rule,
which is not industry-specific; it is not necessary to attain the intended
goal; and it would not, in any case, have achieved that goal with the
appropriate degree of accuracy or specificity. A
few commenters stressed that employers should not be required to record cases
where the employee was infected with TB before employment (see, e.g.,
Exs. 15: 65, 407, 414). For example, Alcoa (Ex. 15: 65) proposed that
employers not be required to consider as work-related any case where
"the employee has previously had a positive PPD [Purified Protein Derivative]
test result." In response to this suggestion, OSHA has added an
implementation question to the final rule to make sure that employers
understand that pre-employment skin test results for TB are not work-related
and do not have to be recorded. These results are not considered work-related
for the purposes of the current employer's Log because the test result cannot
be the result of an event or exposure in the current employer's work
environment. NIOSH
proposed to expand the recording criteria for TB infection or disease to
include the criterion that "regardless of the industry or source of
infection, a case of active TB disease is presumed to be work-related if the
affected employee has silicosis attributable to crystalline silica exposure
in the employer's establishment" (Ex. 15: 407). OSHA has chosen not to
include this criterion in the final rule because in NIOSH's example the case
would previously have been entered into the records as a case of silicosis.
Adopting the NIOSH criterion would result in the same illness being recorded
twice. Kaiser
Permanente recommended that OSHA adopt a method for determining the work
relationship of TB cases that Kaiser Permanente currently uses in California
to evaluate whether cases are recordable, in accordance with an agreement
with the California Division of Occupational Safety and Health (Ex. 15: 200): 1.
The employer shall promptly investigate all tuberculin skin test conversions
according to the "Guidelines for Preventing the Transmission of
Mycobacterium tuberculosis in Health-Care Facilities" published by the
Centers for Disease Control and Prevention (CDC Guidelines). 2.
Probable exposure to Mycobacterium tuberculosis unrelated to work
environment. The conversion shall not be recorded on the log if, after investigation,
the employer reasonably determines that the employee probably converted as a
result of exposure unrelated to the employee's work duties. 3.
Probable exposure to Mycobacterium tuberculosis related to work environment.
The conversion shall be recorded on the log if, after investigation, the
employer reasonably determines that the employee probably converted as a
result of exposure related to the employee's work duties. 4.
Inability to determine probable cause of exposure. If, after reasonably thorough
investigation, the employer is unable to determine whether the employee
probably converted as a result of exposure related to the employee's work
duties, the following shall be done: a.
The conversion shall not be recorded on the log if the employee was, at all
times during which the conversion could have occurred, assigned to a unit or
job classification, which met the minimal risk, low risk, or very low risk
criteria specified in the CDC Guidelines. b.
In all other cases, the conversion shall be recorded on the log. As
an initial matter, OSHA notes that the States are not authorized to provide
employers with variances to the Part 1904 regulations, under either the rule
being published today or the former rule. The issuing of such variances is
exclusively reserved to Federal OSHA, to help ensure the consistency of the
data nationwide and to make the data comparable from state-to-state. OSHA has
not adopted the approach suggested by Kaiser Permanente because the approach
is too complex, does not apply equally to health care and non-health care
settings, and does not provide the clear guidance needed for a regulatory
requirement. However, because the final rule allows employers to rebut the
presumption of work-relatedness if a medical evaluation concludes that the TB
infection did not arise as a result of occupational exposure, a physician or
other licensed health care professional could use the CDC Guidelines or
another method to investigate the origin of the case. If such an
investigation resulted in information that demonstrates that the case is not
related to a workplace exposure, the employer need not record the case. For
example, such an investigation might reveal that the employee had been
vaccinated in childhood with the BCG vaccine. The employer may wish, in such
cases, to keep records of the investigation and determination. Section 1904.12 Recording Criteria for Cases Involving Work-Related
Musculoskeletal Disorders Section
1904.12, entitled "Recording criteria for cases involving work-related
musculoskeletal disorders," provides requirements for recording
work-related musculoskeletal disorders (MSDs). MSDs are defined in the final
recordkeeping rule as "injuries and disorders of the muscles, nerves,
tendons, ligaments, joints, cartilage, and spinal discs." Paragraph
1904.12(a) establishes the employer's basic obligation to enter recordable
musculoskeletal disorders on the Log and to check the musculoskeletal
disorder column on the right side of the Log when such a case occurs. The
paragraph states that, "[i]f any of your employees experiences a
recordable work-related musculoskeletal disorder (MSD), you must record it on
the OSHA 300 Log by checking the "musculoskeletal disorder"
column." Paragraph 1904.12(b)(1) contains the definition of 'musculoskeletal
disorder' used for recordkeeping purposes. Paragraphs 1904.12(b)(2) and
1904.12(b)(3) provide answers to questions that may arise in implementing the
basic requirement, including questions on the work-relatedness of MSDs. The
Proposal The
proposal defined MSDs as "injuries and illnesses * * * result[ing] from
ergonomic hazards," such as lifting, repeated motion, and repetitive
strain and stress on the musculoskeletal system. (61 FR 4046) This language
was derived, in part, from the definition of the term "cumulative trauma
disorders (CTDs)," used in OSHA's Ergonomics Program Management
Guidelines For Meatpacking Plants (hereafter "Meatpacking
Guidelines"). The 1990 Meatpacking Guidelines used the term
CTDs to cover "health disorders arising from repeated biomechanical
stress due to ergonomic hazards." (Ex. 11 at p. 20.) Appendix
B to the recordkeeping rule proposed requirements for employers to follow
when recording MSDs. The proposed requirements would have required recording:
(1) whenever an MSD was diagnosed by a health care provider, or (2) whenever
an employee presented with one or more of the objective signs of such
disorders, such as swelling, redness indicative of inflammation, or
deformity. When either of these two criteria was met, or when an employee
experienced subjective symptoms, such as pain, and one or more of the general
criteria for recording injuries and illnesses (i.e., death, loss of
consciousness, days away from work, restricted work, job transfer, or medical
treatment) were met, an MSD case would have been recordable under the
proposal. The
proposal also contained special provisions for determining whether hot and
cold treatments administered to alleviate the signs and symptoms of MSDs
would be considered first aid or medical treatment. Under the former
recordkeeping rule, the application of hot and cold treatment on the first
visit to medical personnel was considered first aid, while the application of
such treatment on the second or subsequent visit was considered to constitute
medical treatment. OSHA proposed to revise this provision to consider hot or
cold therapy to be first aid for all injuries and illnesses except MSDs, but
to consider two or more applications of such therapy medical treatment if
used for an MSD case (61 FR 4064). Whether hot and cold therapies constitute
first aid or medical treatment is addressed in detail in section 1904.7 of
the final recordkeeping rule. As discussed in that section, under the final
rule, hot and cold therapies are considered first aid, regardless of the type
of injury or illness to which they are applied or the number of times such
therapy is applied. The
Final Rule's Definition of Musculoskeletal Disorder The
preamble to the proposal described an MSD as an injury or disorder
"resulting from" ergonomic hazards. However, OSHA has not carried
this approach forward in the final rule because it would rely on an
assessment of the cause of the injury, rather than the nature of the injury
or illness itself. Paragraph
1904.12(b)(1) of the final rule therefore states, in pertinent part, that
MSDs "are injuries and disorders of the muscles, nerves, tendons,
ligaments, joints, cartilage and spinal discs. MSDs do not include injuries
caused by slips, trips, falls, or other similar accidents." This language
clarifies that, for recordkeeping purposes, OSHA is not defining MSDs as
injuries or disorders caused by particular risk factors in the workplace.
Instead, the Agency defines MSDs as including all injuries to the listed soft
tissues and structures of the body regardless of physical cause, unless those
injuries resulted from slips, trips, falls, motor vehicle accidents, or
similar accidents. To provide examples of injuries and disorders that are
included in the definition of MSD used in the final rule, Section
1904.12(b)(1) contains a list of examples of MSDs; however, musculoskeletal
conditions not on this list may also meet the final rule's definition of MSD. Determining
the Work-Relatedness of MSDs Section
1904.12(b)(2) provides that "[t]here are no special criteria for
determining which musculoskeletal disorders to record. An MSD case is
recorded using the same process you would use for any other injury or
illness." This means that employers must apply the criteria set out in
sections 1904.5-1904.7 of the final rule to determine whether a reported MSD
is "work-related," is a "new case," and then meets one or
more of the general recording criteria. The following discussion supplements
the information provided in the summary and explanation accompanying section
1904.5, to assist employers in deciding which MSDs are work-related. For
MSDs, as for all other types of injuries and illnesses, the threshold
question is whether the geographic presumption established in paragraph
1904.5(a) applies. The presumption applies whenever an MSD or other type of
injury or illness "results from an event or exposure in the work
environment." For recordkeeping purposes, an "event" or
"exposure" includes any identifiable incident, occurrence, activity,
or bodily movement that occurs in the work environment. If an MSD can be
attributed to such an event or exposure, the case is work related, regardless
of the nature or extent of the ergonomic risk factors present in the
workplace or the worker's job. This
position is not new to the final rule; it is clearly reflected in the 1986
BLS Recordkeeping Guidelines. The Guidelines contain the
following discussion of the applicability of the work-relatedness presumption
to back injuries and hernia cases, which reflects OSHA's position under this
final rule: Back
and hernia cases should be evaluated in the same manner as any other case.
Questions concerning the recordability of these cases usually revolve around:
(1) The impact of a previous back or hernia condition on the recordability of
the case, or (2) whether or not the back injury or hernia was work-related. Preexisting
conditions generally do not impact the recordability of cases under the OSHA
system. * * * For a back or hernia case to be considered work-related, it
must have resulted from a work-related event or exposure in the work
environment. Employers may sometimes be able to distinguish between back
injuries that result from an event in the work environment, and back injuries
that are caused elsewhere and merely surface in the work environment. The
former are recordable; the latter are not. This test should be applied to all
injuries and illnesses, not just back and hernia cases. Guidelines at
p. 32 (emphasis in original). The
Guidelines provide the following question and answer to illustrate
that MSDs may be attributable to events or exposures in the work environment
that pose little apparent ergonomic risk: B-16 Q. An
employee's back goes out while performing routine activity at work. Assuming
the employee was not involved in any stressful activity, such as lifting a
heavy object, is the case recordable? A.
Particularly stressful activity is not required. If an event (such as a * * *
sharp twist, etc.) occurred in the work environment that caused or
contributed to the injury, the case would be recordable, assuming it meets
the other requirements for recordability. Guidelines at p. 32
(emphasis in original). OSHA
believes that, in most cases, an employee who reports an MSD at work will be
able to identify the activity or bodily movements (such as lifting, twisting,
or repetitive motions) that produced the MSD. If the activity or movements
that precipitated the disorder occurred at work, the presumption of
work-relatedness is established without the need for further analysis.
However, cases may arise in which it is unclear whether the MSD results from
an event or exposure in the work environment. In these cases, paragraph
1904.5(b)(3) of the final rule directs the employer to evaluate the
employee's work activities to determine whether it is likely that one or more
events or exposures in the work environment caused or contributed to the
disorder. In this situation the employer would consider the employee report,
the ergonomic risk factors present in the employee's job, and other available
information to determine work-relationship. In
evaluating job activities and work conditions to identify whether ergonomic
risk factors are present, employers may turn to readily available sources of
information for assistance, such as materials made available by OSHA on its
web site, current scientific evidence, available industry guidelines, and
other pertinent sources. This final rule does not establish new or different
criteria for determining whether an MSD is more likely than not to have
resulted from work activities or job conditions, i.e., from exposure to
ergonomic risk factors at work. As is the case for all injuries and
illnesses, the employer must make a good faith determination about
work-relatedness in each case, based on the available evidence. The
preamble discussion for paragraph 1904.5(b)(3) contains some examples to
assist employers in making this determination. In addition, the BLS Guidelines
contain the following examples: Q. Must
there be an identifiable event or exposure in the work environment for there
to be a recordable case? What if someone experiences a backache, but cannot
identify the particular movement which caused the injury? A.
Usually, there will be an identifiable event or exposure to which the
employer or employee can attribute the injury or illness. However, this is
not necessary for recordkeeping purposes. If it seems likely that an event or
exposure in the work environment either caused or contributed to the case,
the case is recordable, even though the exact time or location of the
particular event or exposure cannot be identified. If
the backache is known to result from some nonwork-related activity outside
the work environment and merely surfaces at work, then the employer need not
record the case. In these situations, employers may want to document the
reasons they feel the case is not work related. (BLS Guidelines, p.
32.) Comments
on Other Approaches to Recording MSDs Commenters
provided OSHA with several suggestions for recording musculoskeletal
disorders: requiring diagnosis by a health care professional, recording
symptoms lasting seven days, and eliminating special criteria for recording
MSD cases. These are discussed below. Eliminating
Special Criteria for Recording MSD Cases A
large number of commenters suggested that the recordkeeping rule should not
contain criteria for recording MSD cases that were different from those for
recording all injuries and illnesses, arguing that they should be captured
using the criteria for all other types of injuries and illnesses (see, e.g.,
Exs. 15: 9, 44, 76, 109, 122, 123, 130, 145, 146, 176, 188, 199, 201, 218,
235, 272, 273, 288, 289, 301, 303, 304, 347, 351, 359, 368, 386, 392, 395,
396, 409, 425, 427). The comments of PPG Industries, Inc. (Ex. 15: 109) are
representative of these views: "The system for evaluating all cases
should be consistent. When evaluating musculoskeletal disorders, the normal
recordkeeping criteria should be used." The Voluntary Protection
Programs Participants' Association (VPPPA) also recommended that "MSDs
should be treated as any other injury or illness. If the problem arises to
the level of seriousness that it is a recordable injury or illness, then it
should be recorded on the log" (Ex. 15: 425). The National Safety
Council (Ex. 15: 359) recommended that "if an employee has pain, he or
she should report it. It then becomes recordable or not recordable based on
the usual criteria. The employer makes a decision on a case by case
basis." OSHA
agrees with these commenters that MSD cases should be recorded in the same
way as other injuries and illnesses, and should not have separate
recordability criteria. Using the same criteria for these cases, which
constitute one-third of all occupational injuries and illnesses, simplifies
the final rule and makes the system easier for employers and employees to
use. Employing consistent recording criteria thus helps to achieve one of
OSHA's major goals in this rulemaking, simplification. Section 1904.12 has
been included in the final rule not to impose different recording criteria on
MSDs, but to emphasize that employers are to record MSD cases like all other
injuries and illnesses. OSHA believes that this approach to the recording of
MSDs will yield statistics on musculoskeletal disorders that are reliable and
complete. Requiring
Diagnosis by a Health Care Professional A
number of commenters recommended that OSHA require the recording of
musculoskeletal disorders only when they are diagnosed by a health care
professional or identified by a medical test result (see, e.g., Exs.
15: 20, 22, 39, 42, 44, 57, 60, 78, 82, 121, 126, 146, 173, 199, 201, 218,
225, 242, 246, 247, 248, 259, 272, 288, 289, 303, 318, 324, 332, 335, 341,
342, 348, 351, 355, 356, 357, 364, 366, 378, 384, 397, 414, 424, 440, 441).
The National Electrical Contractors Association (NECA) requested that
"OSHA modify the current criteria to state "Positive x-ray showing
broken bones or fracture, diagnosis of broken teeth, or diagnosis of acute
soft tissue damages" (Ex. 15: 126). The United Technologies Company
(UTC) agreed that "MSDs should only be recorded if the diagnosis is made
by a health care provider operating within the scope of his or her
specialty" (Ex. 15: 440). The National Coalition on Ergonomics (Ex. 15:
366) urged OSHA to limit the recording of MSD cases to those diagnosed by
highly qualified health care professionals: [O]SHA
should not encourage unqualified individuals to "diagnose"
musculoskeletal disorders given the present state of medical knowledge of
their causes and cures. * * * Therefore, OSHA should limit in the definition
of musculoskeletal disorders the diagnosis to qualified and trained
physicians, and such other practitioners as are accepted by the medical
community as having the training and skill necessary to adequately and appropriately
treat these cases. Other
commenters expressed similar opinions, arguing that the work relationship of
a given case should be determined by a health care professional (see, e.g.,
Exs. 15: 9, 105, 248, 249, 250, 262, 272, 288, 303, 304, 324, 366, 397, 408,
440). The Footwear Industries of America (Ex. 15: 249) recommended that
"An MSD should be recordable only if it is diagnosed by a health-care
provider based on a determination that the MSD is clearly work-related --
that is, caused by the work environment." The American Dental
Association (Ex. 15: 408) suggested that "OSHA should not require
employers to keep records of musculoskeletal disorders unless and until a
physician identifies work as the "predominant cause" in a given case."
United Technologies Company recommended that the health care provider use a
check list to make this determination: "UTC also believes that the
provider should be required to complete a check list regarding work
relatedness with the language changed to include predominantly caused by the
work environment and the submittal of information by the employer" (Ex.
15: 440). The
Northrop Grumman Association (Ex. 15: 42) suggested that "Recordability
should only be based on objective, documented findings by a licensed
physician. In [proposed] mandatory Appendix B, recordability is defined as
diagnosis by a health care provider and/or objective findings. The 'or'
should be deleted. Only positive test findings should denote recordability.
There are physicians who diagnose cases without any objective tests to
confirm their diagnosis." Other commenters (see, e.g., Exs. 15:
44, 386, 330, 332) recommended that MSD cases be recorded only when they are
diagnosed by a health care provider and/or are identified by a positive test
result and meet the general recording criteria. A
few commenters argued that a health care professional's diagnosis should not
be considered evidence of work-relatedness (see, e.g., Exs. 15: 347,
363, 409). For example, the American Automobile Manufacturers Association (AAMA)
remarked that "[w]e strongly oppose the recording of a musculoskeletal
disorder based solely on the diagnosis by a health care provider. A
diagnosis, in and of itself, does not reflect whether a musculoskeletal
disorder is significant or serious in nature. Health care providers record a
description or diagnosis of an employee's complaint whether minor or
serious." On the other hand, the American Federation of State, County,
and Municipal Employees (Ex. 15: 362) argued that "[w]orkers may not see
a health care professional until after they have endured symptoms for an
extended period * * * The reality of the situation is that a great number of
workers who suffer from symptoms will not be diagnosed by a health care
provider unless or until their condition becomes severe and/or
disabling." As
discussed in the preamble to the work relationship section of the final rule
(§ 1904.5), an employer is always free to consult a physician or other
licensed health care professional to assist in making the determination of
work relationship in individual injury or illness cases, including
musculoskeletal disorders. If a physician or other licensed health care
professional has knowledge of the employee's current job activities and work
conditions, work history, and the work environment, he or she can often use
that information, along with the results of a medical evaluation of the
worker, to reach a conclusion about the work-relatedness of the condition.
Relying on the expertise of a knowledgeable health care professional can be
invaluable to the employer in those infrequent cases for which it is not
clear whether workplace events or exposures caused or contributed to the MSD
or significantly aggravated pre-existing symptoms. Employers may also obtain
useful information from ergonomists, industrial engineers, or other safety
and health professionals who have training and experience in relevant fields
and can evaluate the workplace for the presence of ergonomic risk factors. However,
OSHA does not require employers to consult with a physician or other licensed
health care professional or to have the employee undergo medical tests when
making work-relationship determinations. The Agency finds that doing so would
be both unnecessary and impractical in the great majority of cases and would
result both in delaying the recording of occupational MSD cases and
increasing medical costs for employers. In
most situations, an evaluation by a physician or other licensed health care
professional is simply not needed in order to make a recording decision. For
example, if a worker strains a muscle in his or her back lifting a heavy
object, and the back injury results in days away from work, there is no doubt
either about the work-relationship of the case or its meeting of the
recording criteria. Similarly, if a worker performing a job that has resulted
in MSDs of the wrist in other employees reports wrist pain and restricted
motion, and the employer places the employee on restricted work, the case is
recordable and there is no need to await a clinical diagnosis. Recording
of MSD Symptoms In
the preamble to the proposed rule (61 FR 4047), OSHA asked: There
is a concern that the proposed criteria [for recording MSDs] will result in a
situation where workers could be working with significant pain for an
extended period of time, without their case being entered into the records.
OSHA has been asked to consider an additional recording criterion for these
cases: record when the employee reports symptoms (pain, tingling, numbness,
etc.) persisting for at least 7 calendar days from the date of onset. OSHA
asks for input on this criterion. Some
commenters urged OSHA to require employers to record MSD cases where an
employee reports symptoms that have persisted for at least 7 calendar days
(see, e.g., Exs. 15: 87, 129, 186, 362, 369, 371, 374, 380). The
American Federation of State County and Municipal Employees, AFL-CIO (AFSCME)
recommended: Under-reporting
of MSDs will increase if OSHA adopts this proposal. It has been AFSCME's
experience that workers experiencing pain, soreness, tenderness, numbness,
tingling and other sensations in their extremities or back do not immediately
report these symptoms to their employer. Rather, most employees first attempt
to alleviate their symptoms on their own: they ingest medications, use
topical solutions, apply heat or cold to affected areas, or utilize other
remedies in their attempt to relieve pain, aches, stiffness, or other
symptoms. OSHA should require that these cases be recorded when symptoms last
for seven consecutive days. Investigations
conducted by AFSCME repeatedly demonstrate that inclusion of the additional
criterion is necessary in order to ascertain accurately the number of
work-related MSDs. Employer records typically show MSD rates at or even well
below ten percent of employees at risk for these injuries. However, results
of AFSCME-conducted symptom surveys show that it is common for a third or
more of the employees to respond that they have felt pain, numbness,
tingling, or other symptoms that have persisted for more than seven days.* *
* AFSCME
wishes to emphasize that accurate and complete recording of MSDs is
critically important. Early detection, proper medical intervention, and
appropriate measures to address ergonomic risk factors in the workplace are
all necessary to prevent and manage MSDs (Ex. 15: 362). Many
commenters objected to the proposed 7-day symptom recording concept (see, e.g.,
Exs. 15: 9, 20, 39, 122, 127, 128, 170, 230, 246, 248, 281, 289, 324, 330,
332, 341, 359, 378, 397, 406, 434). David E. Jones of the law firm of
Ogletree, Deakins, Nash, Smoak & Stewart (Ex. 15: 406) stated that this
provision was unnecessary because "[t]he prevalent experience has shown
that employers typically record those symptoms when they result in medical treatment,
restricted work activity, or days away from work." The Eli Lilly Company
(Ex. 15: 434) also observed that "[b]ased on input from [our]
occupational health physicians, the vast majority of MSD-type cases would
manifest into objective findings or a MSD diagnosis after 7 calendar days of
legitimate subjective symptoms." Other
objections to the proposal's 7-day symptom trigger were based on practical
considerations. Many commenters were opposed to recording undiagnosed
conditions that persist for seven days on the grounds that the seriousness or
veracity of the complaint of pain or other symptoms could not be established
by the employer (see, e.g., Exs. 15: 9, 20, 39, 121, 122, 127, 128,
170, 218, 230, 246, 248, 281, 289, 359, 366, 397). For example, the Dayton
Hudson Corporation (Ex. 15: 121) stated: "[s]elf-reporting of symptoms
with no medical findings or evaluation is an invitation for abuse. Are these
cases work-related or serious? Are they even real?" Clariant Corporation
held the view that "[d]isgruntled employees could use subjective
findings as a means of avoidance. It could be used to prevent them from doing
a job or task they do not like" (Ex. 15: 217). The National Coalition on
Ergonomics (Ex. 15: 366) opposed any recordation based on symptoms alone,
stating: First,
persistent pain is a symptom, not a disorder, and therefore cannot be a case.
There is often no indication that persistent pain is work-related, except
that as the person becomes more fatigued, the pain may appear or become more
intense. Further, because pain is subjective, there is no way to quantify it
so as to focus only on serious cases. Finally, pain can exist without an
underlying pathology. Pain in and of itself cannot be a case in the absence
of a diagnosis by a qualified medical practitioner, provided that the case is
serious, disabling or significant. Second,
other symptoms mentioned in OSHA's question do not represent cases either. As
we discuss below, individual symptoms are not illnesses; symptoms, in
conjunction with appropriate signs and/ or laboratory results are essential
to diagnose specific conditions. Since
symptoms do not define cases, OSHA cannot -- indeed, should not -- require
employers to record complaints of uncertain validity and non-specific origin.
It is perhaps true that such employees should see a trained physician or
other practitioner, but only after this event will there be a case to record,
if one exists at all. Linda
Ballas & Associates (Ex. 15: 31) expressed a different concern, namely
that "[i]f an employee is experiencing pain, or reports symptoms -- the
clock should not have to click to 7 days before the case is recordable. This
will lead to under recording and under reporting * * * ." In
response to the comments on this issue, OSHA finds that pain and/or other MSD
symptoms, of and by themselves, may indicate an injury or illness. In this
regard, MSD cases are not different from other types of injury or illness. As
discussed in the preamble to the definitions section of the final rule
(Subpart G), symptoms such as pain are one of the primary ways that injuries
and illnesses manifest themselves. If an employee reports pain or other
symptoms affecting the muscles, nerves, tendons, etc., the incident must be
evaluated for work-relatedness, and, if determined by the employer to be
work-related, must be tested against the recording criteria to determine its
recordability. If it is determined by the employer to be recordable, it must
be recorded as an MSD on the OSHA 300 Log. The
ICD-9-CM manual, the International Classification of Diseases, Clinical
Modification (ICD-CM), the official system of assigning codes to
diagnoses of disease, injury and illness, lists several MSD conditions that
consist only of pain. That is, when health care professionals diagnose these
disease states, they do so on the basis of employee-reported pain (health
care professionals often evaluate and confirm such reports by physical
examination when making a diagnosis). According to the National Center for
Health Statistics (NCHS), the agency responsible for the coordination of all
official disease classification activities in the United States relating to
the International Classification of Diseases (ICD), the ICD-CM is the
official system of assigning codes to diagnoses and procedures associated
with hospital utilization in the United States, and is used to code and
classify morbidity data from inpatient and outpatient records, physicians'
offices, and most NCHS surveys. The following table includes a few
illustrative examples of ICD illness codes for pain-related disorders that
would be considered MSD cases under OSHA's definition and would thus warrant
an evaluation of work-relatedness by the employer.
(NCHS
Internet home page, http://www.cdc.gov/nchswww/about/otheract/icd9) Pain
is a symptom that generally indicates the existence of some underlying
physiological condition, such as inflammation, damage to a spinal disc, or
other biomechanical damage. The occurrence of pain or other symptoms (such
as, in the case of MSDs, tingling, burning, numbness, etc.) is thus
indicative of an incident that warrants investigation by the employer for
work-relatedness, the first step in the injury and illness reporting and
recording process. The occurrence of pain or other symptoms, however, is not
enough, in the absence of an injury or illness that meets one or more of the
recording criteria, to make any injury or illness (including an MSD case)
recordable under Part 1904. Employers are not required to record symptoms unless
they are work-related and the injury or illness reaches the seriousness
indicated by the general recording criteria, which for MSD cases will almost
always be days away from work, restricted work, medical treatment, or job
transfer. Thus, the requirements governing the recording of all injuries and
illnesses will work to ensure that symptoms such as the aches and pains that
most people experience from time to time during their lives, are not
automatically recorded on the OSHA Log. These same recording requirements
will also ensure that those MSDs that are determined by the employer to be
work-related and that also meet one or more of the recording criteria will be
captured in the national statistics. If
the employer is concerned that the case is not work-related, he or she can
refer the employee to a health care professional for a determination,
evaluation, or treatment. In this situation, or when the employee has already
obtained medical attention, the physician or other licensed health care
professional can help to differentiate between work-related and
non-work-related cases, minor aches and pains, or inappropriate employee
reports. This is no different for MSD cases than for other types of injuries
and illnesses, and does not represent a new problem in the determination of
work-related injury and illness. There have always been disputes between
workers and employers over the existence of an injury or illness and whether
it is work-related. If an employer subsequently demonstrates that a worker is
malingering or determines that an injury or illness or is not work-related
(using OSHA's definition of work-related), the employer may remove the
recorded entry from the OSHA 300 Log. Although
OSHA believes that pain or other symptoms indicate an injury or illness that
warrants additional analysis, the final rule has not adopted persistent
symptoms alone, whether lasting for 7 days or any other set time period, as
an automatic recording criterion. OSHA is concerned about workers who
experience persistent pain for any reason, and such pain, if work-related,
may well warrant an inquiry into the employee's work conditions and the
taking of administrative actions. However, pain or other symptoms, standing
alone, have not ordinarily been captured by the OSHA recordkeeping system,
and OSHA has accordingly not adopted persistent musculoskeletal pain as a
recording criterion, for the following reasons. First,
as discussed earlier, OSHA does not believe that MSD cases should receive
differential treatment for recording purposes, and the final rule does not
contain different criteria for recording MSD cases; instead, it relies on the
general criteria of § 1904.7 to capture MSD cases. OSHA finds that, for
recordkeeping purposes, MSD pain is no different in nature than the pain caused
by a bruise, cut, burn or any other type of occupational injury or illness.
For example, the OSHA rule does not contain a criterion requiring that if a
burn, cut or bruise results in pain for seven days it is automatically
recordable. Creating a special provision for MSD pain would create an
inconsistency in the rule. Further,
OSHA believes that the provisions of the final recordkeeping rule, taken
together will appropriately capture reliable, consistent, and accurate data
on MSD cases. Incorporating a clear definition of MSDs, clarifying the rule's
requirements for determining work-relatedness; and refining the definitions
of restricted work, first aid and medical treatment; will all work together
to improve the quality of the Log data on MSDs. OSHA concludes, based on an
analysis of the record evidence on MSDs, that the general recording criteria
will enhance the data on work-related, non-minor MSDs occurring in the
workplace, and that an additional "persistent pain" criterion is
unnecessary for purposes of the recordkeeping system. New
hires Some
commenters encouraged OSHA to find a way to exclude MSD cases that involve
minor muscle soreness in newly hired employees, i.e., to allow employers to
not record MSDs occurring during a "break-in" period (see, e.g.,
Exs. 15: 27, 31, 39, 82, 87, 105, 186, 198, 204, 221, 239, 272, 283, 289,
303, 330, 359, 374, 412, 440). For example, the American Meat Institute (Ex.
15: 330) remarked: "Employees returning from vacation, or other extended
break periods from the job function, could have normal muscle aches to which
hot/cold packs could provide relief. Recording such cases would not meet the
purpose [of the OSHA Act] either." On the same topic, the National
Safety Council (Ex. 15: 359) wrote: The
concept of forgiveness for a short period of adjustment to return to work
makes good sense in industries that are traditionally very resistant to early
return to work programs. If allowing for a short "break-in" period
helps get workers safely and comfortably back to full productivity and
earning capacity it should be seriously considered. The Council recommends,
however, that no specific method be developed in the proposed rule because
situations may vary greatly from industry to industry. The
Harsco Corporation (Ex. 15: 105) suggested "Construction activities can
be a physically demanding occupation. If a person hasn't worked in a period
of time, the first couple of days can be very tough. To transfer a person to
a different task which would allow for the affected body part to rest should
have no bearing on recordability if no other treatment is required." Other
commenters disagreed, however, that a recording exemption for injuries
occurring during a break-in period was appropriate (see, e.g., Exs.
15: 68, 359, 371). For example, the State of New York Workers' Compensation
Board (Ex. 15: 68) stated that: As
to the exclusion of minor soreness commonly occurring to newly hired
employees or employees on a rehab assignment during a "break-in
stage", we do not envision any reason to exclude reporting solely on
this basis. The criteria should not be to whom the injury happens, but rather
whether the injury would otherwise be reportable regardless of who is
injured. The
United Food and Commercial Workers Union (UFCW) argued: We
could not disagree more with the agency. The current proposal in fact screens
out all fleeting cases, and includes only those cases that are serious, have
progressed and become debilitating. Only those cases with serious medical
findings, lost workdays, restricted days and those receiving medical
treatment are currently recordable -- not those with fleeting pain that goes
away with a good nights rest (Ex. 15: 371). After
a review of the record on this topic, OSHA finds that no special provision
for newly hired or transferred workers should be included in the final rule.
As the National Safety Council stated, it would be very difficult to identify
a single industry-wide method for dealing with break-in or work conditioning
periods. Any method of exempting such cases would risk excluding legitimate
work-related, serious MSD cases. A newly hired employee can be injured just
as easily as a worker who has been on the job for many years. In fact,
inexperience on the job may contribute to an MSD injury or illness. For example,
a new worker who is not aware of the need to get assistance to move a heavy
load or perform a strenuous function may attempt to do the task without help
and be hurt in the process. Cases of this type, if determined to be
work-related, are appropriately included in national statistics on
occupational injuries and illnesses. OSHA
notes that minor muscle soreness, aches, or pains that do not meet one or
more of the general recording criteria will not be recorded on the OSHA 300
Log. Therefore, the system already excludes minor aches and pains that may
occur when employees are newly hired, change jobs, or return from an extended
absence. These cases will be recorded only if they reach the level of
seriousness that requires recording. The final rule's definition of first aid
includes hot/cold treatments and the administration of non-prescription
strength analgesics, two of the most common and conservative methods for
treating minor muscle soreness. Thus, the final rule allows newly hired
workers to receive these first aid treatments for minor soreness without the
case being recordable. The
Ergonomics Rulemaking Many
of the comments OSHA received on the proposed recordkeeping rule referred to
OSHA's efforts to develop an ergonomics standard. Several commenters argued
that OSHA was trying, through the recordkeeping rule, to collect data to
support an ergonomics standard (see, e.g., Exs. 22, 183, 215, 304,
346, 397). Typical of these views was that of the National Beer Wholesalers
Association (NBWA) (Ex. 15: 215): NBWA
is especially troubled by the likelihood that the new definitions of what
injuries must be recorded and reported in the current proposed rule are
intended artificially to inflate the number of reported musculoskeletal
disorders, whether work-related or not. Such a surge in MSDs could be used to
justify additional work on a workplace ergonomics rule despite the notable
lack of a scientific basis for regulation in this area. Other
commenters believed that OSHA was using the recordkeeping rule to conduct a
"backdoor rulemaking" to control ergonomics hazards in the
workplace (see, e.g., Exs. 15: 86, 215, 287, 304, 404, 412, 426). For
example, the Reynolds Aluminum Company stated that: Reynolds
supports the inclusion of musculo-skeletal disorders (MSDs) on the OSHA log,
but does not support the industry-wide application of the Ergonomics Program
Management Guidelines For Meatpacking Plants as the criteria for determining
recordability. By incorporating these guidelines into Appendix B, OSHA would
be implementing an ergonomics program. It would be inappropriate and without
legal or scientific basis to burden all industries with ergonomic guidelines
designed for a specific, unique industry (Ex. 15: 426). Several
commenters stated that the injury and illness recordkeeping rules should not
address musculoskeletal disorders until after an ergonomics standard has been
completed (see, e.g., Exs. 15: 13, 95, 393). For example, Entergy
Services, Inc. (Ex. 15: 13) expressed the following concerns: This
area is of concern since there is no standard that really covers this issue
except the meat packers standard * * * It is believed that to record this
type case, a standard should be in place or language should be written to
look at true disorders with long term effect as compared to short term
symptoms. Many
commenters also made comments on the overall debate about ergonomics, i.e.,
that the medical community has not reached consensus on what constitutes an
MSD (see, e.g., Exs. 15: 116, 1267, 323, 355), that there is too much
scientific uncertainty about the issue of ergonomics (see, e.g., Exs.
15: 57, 215, 304, 312, 342, 344, 355, 393, 397, 412, 424), that science and
medicine cannot tell what is work-related and what is not (see, e.g.,
Exs. 15: 204, 207, 218, 323, 341, 342, 3546, 408, 412, 424, 443), that OSHA
needs to do more research before issuing a rule (Ex. 15: 234), that
"musculoskeletal disorder" is a vague category (Ex. 15: 393), and
that OSHA should drop the issue until the science is better (Ex. 15: 204). OSHA
does not agree that the provisions on the recording of MSDs contained in this
recordkeeping rule would conflict in any way with OSHA's ergonomics
rulemaking. Unlike the proposed ergonomics standard, the final ergonomics
standard does not use an OSHA recordable case as a "trigger" that
would require an employer to implement an ergonomics program. As a result, a
recordable musculoskeletal disorder does not necessarily mean that the
employer is required to implement an ergonomics program. The recordkeeping
rule's provisions on the reporting of MSDs simply address the most consistent
and appropriate way to record injury and illness data on these disorders.
MSDs, like all other injuries and illnesses, must be evaluated for their
work-relatedness and their recordability under the recordkeeping rule's
general recording criteria; only if the MSD meets these tests is the case
recordable. Additionally, OSHA has required the recording of MSDs for many
years. The
recordkeeping rule and the ergonomics standard treat MSDs somewhat
differently because the purpose of the two rules is different. Thus, although
many of the requirements in the two rules are the same, some requirements
reflect the different purposes of the two rulemakings. For example, the
recordkeeping rule defines MSDs more broadly than the ergonomics rule because
one of the purposes of the Part 1904 recordkeeping system is to gather broad
information about injuries and illnesses; the ergonomics standard, in
contrast, is designed to protect workers from those MSD hazards the employer
has identified in their job. Another difference between the two rules is that
the ergonomics standard requires employers to evaluate employee reports of
MSD signs and symptoms that last for seven consecutive days, although the
recordkeeping rule does not require employers to record signs and symptoms
that last for seven consecutive days unless such signs or symptoms involve
medical treatment, days of restricted work, or days away from work. The
record in the ergonomics rulemaking strongly supported early reporting of MSD
signs and symptoms because such early reporting reduces disability, medical
costs, and lost productivity. However, evidence in the recordkeeping
rulemaking did not support a requirement that persistent signs and symptoms
of all occupational injuries and illnesses be recorded on the OSHA Log, and
the final recordkeeping rule accordingly contains no such requirement. Section
1904.29 Forms Section
1904.29, titled "Forms," establishes the requirements for the forms
(OSHA 300 Log, OSHA 300A Annual Summary, and OSHA 301 Incident Report) an
employer must use to keep OSHA Part 1904 injury and illness records, the time
limit for recording an injury or illness case, the use of substitute forms,
the use of computer equipment to keep the records, and privacy protections
for certain information recorded on the OSHA 300 Log. Paragraph
1904.29(a) sets out the basic requirements of this section. It directs the
employer to use the OSHA 300 (Log), 300A (Summary), and 301 (Incident Report)
forms, or equivalent forms, to record all recordable occupational injuries
and illnesses. Paragraph 1904.29(b) contains requirements in the form of
questions and answers to explain how employers are to implement this basic
requirement. Paragraph 1904.29(b)(1) states the requirements for: (1)
Completing the establishment information at the top of the OSHA 300 Log, (2)
making a one- or two-line entry for each recordable injury and illness case,
and (3) summarizing the data at the end of the year. Paragraph 1904.29(b)(2)
sets out the requirements for employers to complete the OSHA 301 Incident
Report form (or equivalent) for each recordable case entered on the OSHA 300
Log. The requirements for completing the annual summary on the Form 300A are
found at Section 1904.32 of the final rule. Required
Forms OSHA
proposed to continue to require employers to keep both a Log (Form 300) and
an Incident Report form (Form 301) for recordkeeping purposes, just as they
have been doing under the former rule. OSHA received no comments on the use
of two forms for recordkeeping purposes, i.e., a Log with a one-line entry
for each case and a supplemental report that requires greater detail about
each injury or illness case. OSHA has therefore continued to require two
recordkeeping forms in the final rule, although these have been renumbered
(they were formerly designated as the OSHA 200 Log and the OSHA 101
Supplementary Report). In
addition to establishing the basic requirements for employers to keep records
on the OSHA 300 Log and OSHA 301 Incident Report and providing basic
instructions on how to complete these forms, this section of the rule states
that employers may use two lines of the OSHA 300 Log to describe an injury or
illness, if necessary. Permitting employers to use two lines when they need
more space and specifying this information in the rule and on the Log
responds to several comments (see, e.g., Exs. 37; 15: 138, 389) about
the lack of adequate space for descriptive information on the proposed OSHA
300 Log form. OSHA believes that most injury and illness cases can be
recorded using only one line of the Log. However, for those cases requiring
more space, this addition to the Log makes it clear that two lines may be
used to describe the case. The OSHA 300 Log is designed to be a scannable
document that employers, employees and government representatives can use to
review a fairly large number of cases in a brief time, and OSHA believes that
employers will not need more than two lines to describe a given case.
Employers should enter more detailed information about each case on the OSHA
301 form, which is designed to accommodate lengthier information. Deadline
for Entering a Case Paragraph
1904.29(b)(3) establishes the requirement for how quickly each recordable
injury or illness must be recorded into the records. It states that the
employer must enter each case on the OSHA 300 Log and OSHA 301 Form within 7
calendar days of receiving information that a recordable injury or illness
has occurred. In the vast majority of cases, employers know immediately or
within a short time that a recordable case has occurred. In a few cases,
however, it may be several days before the employer is informed that an
employee's injury or illness meets one or more of the recording criteria. The
former recordkeeping rule required each injury or illness to be entered on
the OSHA Log and Summary no later than six working days after the employer
received information about the case. OSHA proposed to change this interval to
7 calendar days. Several commenters agreed that allowing 7 calendar days
would simplify the reporting time requirement and reduce confusion for
employers (see, e.g., Exs. 36; 15: 9, 36, 65, 107, 154, 179, 181, 203,
332, 369, 387). Other commenters (see, e.g., Exs. 15: 46, 60, 82, 89,
184, 204, 225, 230, 239, 283, 288, 305, 348, 375, 390, 346, 347, 348, 358,
389, 409, 423, 424, 431) objected to the proposed 7 calendar-day requirement,
principally on the grounds that the proposed 7 calendar-day time limit would
actually be shorter than the former rule's 6 working-day limit in some
situations, such as if a long holiday weekend intervened (see, e.g.,
Exs. 15: 9, 60, 230, 272, 375). One
commenter urged OSHA to adopt a 21-day period because conducting a thorough
investigation to determine whether a case is work-related or a recurrence of
an old case can sometimes take longer than 7 or even 10 days (Ex. 15: 184).
In the final rule, OSHA is adopting a 7 calendar-day time limit for the
recording of an injury or illness that meets the rule's recording criteria.
For many employers, the 7 day calendar period will be longer than the former
6 working day period. Although it is true that, in other cases, a 7
calendar-day limit may be slightly shorter than the former rule's 6
working-day limit, the Agency believes that the 7 calendar-day rule will
provide employers sufficient time to receive information and record the case.
In addition, a simple "within a week" rule will be easier for
employers to remember and apply, and is consistent with OSHA's decision, in
this rule, to move from workdays to calendar days whenever possible. The
Agency believes that 7 calendar days is ample time for recording,
particularly since the final rule, like the former rule, allows employers to
revise an entry simply by lining it out or amending it if further information
justifying the revision becomes available. The final rule does contain one
exception for the 7 day recording period: if an employee experiences a
recordable hearing loss, and the employer elects to retest the employee's
hearing within 30 days, the employer can wait for the results of the retest
before recording. Equivalent
Forms and Computerized Records Commenters
were unanimous in urging OSHA to facilitate the use of computers and to allow
the use of alternative forms in OSHA recordkeeping (see, e.g., Exs.
21, 22, 15:9, 11, 45, 72, 95, 111, 184, 262, 271, 288, 305, 318, 341, 346,
389, 390, 396, 405, 424, 434, 438). The comments of the U.S. West Company
(Ex. 15:184) are representative of these views: U
S WEST strongly supports provisions in the proposed rule that allow
"equivalent" forms instead of the OSHA Forms 300 and 301. U S WEST
also supports the provisions that would allow use of data processing
equipment and computer printouts of equivalent forms. These provisions allow
employers considerable flexibility and greatly reduced paperwork burdens and
costs, especially for larger multi-site employers. Accordingly,
paragraphs 1904.29(b)(4) and (b)(5) of the final rule make clear that
employers are permitted to record the required information on electronic
media or on paper forms that are different from the OSHA 300 Log, provided
that the electronic record or paper forms are equivalent to the OSHA 300 Log.
A form is deemed to be "equivalent" to the OSHA 300 Log if it can
be read and understood as easily as the OSHA form and contains at least as
much information as the OSHA 300 Log. In addition, the equivalent form must
be completed in accordance with the instructions used to complete the OSHA
300 Log. These provisions are intended to balance OSHA's obligation, as set
forth in Section 8(d) of the OSH Act, to reduce information collection
burdens on employers as much as possible, on the one hand, with the need, on
the other hand, to maintain uniformity of the data recorded and provide
employers flexibility in meeting OSHA's recordkeeping requirements. These
provisions also help to achieve one of OSHA's goals for this rulemaking: to
allow employers to take full advantage of modern technology and computers to
meet their OSHA recordkeeping obligations. Several
commenters were concerned that computerized records would make it more
difficult for employees to access the records (see, e.g., Exs. 15:379,
380, 418, 438). Representative of these views is a comment from the United
Auto Workers (UAW): Electronic
data collection is an essential step to moving forward, especially regarding
data analysis for large worksites. However, as it works today electronic
collection can also be an obstacle to prompt availability to persons without
direct access to the computer system. For this reason, OSHA should require
the availability of electronic information to employees and employee
representatives in the same time interval as hard copy information,
regardless of whether the computer system is maintained at the site (Ex. 15:
438). OSHA
does not believe that computerization of the records will compromise timely
employee, employer or government representative access to the records. To
ensure that this is the case, paragraph § 1904.29(b)(5) of the final rule
allows the employer to keep records on computer equipment only if the
computer system can produce paper copies of equivalent forms when access to
them is needed by a government representative, an employee or former
employee, or an employee representative, as required by §§ 1904.35 or
1904.40, respectively. Of course, if the employee requesting access to the
information agrees to receive it by e-mail, this is acceptable under the 1904
rule. OSHA
also proposed specifically to require that, on any equivalent form, three of
the questions on the form asking for details of the injury or illness
(proposed questions 16, 17, and 18) be positioned on the form in the same
order and be phrased in identical language to that used on the OSHA 301
Incident Report. The three questions were all designed to obtain more
detailed information about how the injury or illness occurred, what equipment
or materials the employee was using at the time of the injury or illness, and
the activity the employee was engaged in at the time of the injury or
illness. A
number of commenters objected to the proposed requirement that, on any
equivalent form, these three questions be asked in the same order and be
phrased in the same language as on the OSHA Incident Report (see, e.g.,
Exs. 33; 37; 15: 9, 41, 44, 59, 60, 119, 132, 156, 176, 201, 231, 281, 283,
301, 312, 318, 322, 329, 334, 335, 346). In addition to arguing that such a
requirement would be burdensome and prescriptive, these commenters pointed
out that the proposed OSHA recordkeeping form was not identical to many State
workers' compensation forms (the forms most often used as alternatives to the
OSHA forms), which would mean that employers in these States would, in
effect, be forced to use the OSHA forms (Ex. 15: 334). Other commenters
argued that being required to use a certain format would hamper employers'
internal accident investigations (see, e.g., Exs. 15: 44, 176, 322).
For example, the Kodak Company remarked: In
[proposed] section 1904.5(b)(2) -- "Questions 16, 17 & 18 must be
asked in the same order and using identical language from the Form 301."
Companies, like Kodak, have well established techniques to ascertain the
cause of the injury and illness. This requirement would actually hamper our
ability to find the root cause of an accident. This requirement should be
eliminated from the rule. (Ex. 15: 322) The
final rule does not include a requirement that certain questions on an
equivalent form be asked in the same order and be phrased in language
identical to that used on the OSHA 301 form. Instead, OSHA has decided, based
on a review of the record evidence, that employers may use any substitute
form that contains the same information and follows the same recording
directions as the OSHA 301 form, and the final rule clearly allows this.
Although the consistency of the data on the OSHA 301 form might be improved
somewhat if the questions asking for further details were phrased and
positioned in an identical way on all employers' forms, OSHA has concluded
that the additional burden such a requirement would impose on employers and
workers' compensation agencies outweighs this consideration. OSHA
has revised the wording of these three questions on the final OSHA 301 form
to match the phraseology used by the Bureau of Labor Statistics (BLS) in its
Annual Survey of Occupational Injuries and Illnesses. By ensuring consistency
across both the BLS and OSHA forms, this change will help those employers who
respond both to the BLS Annual Survey and keep OSHA records. Handling
of Privacy Concern Cases Paragraphs
1904.29(b)(6) through (b)(10) of the final rule are new and are designed to
address privacy concerns raised by many commenters to the record. Paragraph
1904.29(b)(6) requires the employer to withhold the injured or ill employee's
name from the OSHA 300 Log for injuries and illnesses defined by the rule as
"privacy concern cases" and instead to enter "privacy concern
case" in the space where the employee's name would normally be entered
if an injury or illness meeting the definition of a privacy concern case
occurs. This approach will allow the employer to provide OSHA 300 Log data to
employees, former employees and employee representatives, as required by §
1904.35, while at the same time protecting the privacy of workers who have experienced
occupational injuries and illnesses that raise privacy concerns. The employer
must also keep a separate, confidential list of these privacy concern cases,
and the list must include the employee's name and the case number from the
OSHA 300 Log. This separate listing is needed to allow a government
representative to obtain the employee's name during a workplace inspection in
case further investigation is warranted and to assist employers to keep track
of such cases in the event that future revisions to the entry become
necessary. Paragraph
1904.29(b)(7) defines "privacy concern cases" as those involving:
(i) An injury or illness to an intimate body part or the reproductive system;
(ii) an injury or illness resulting from a sexual assault; (iii) a mental
illness; (iv) a work-related HIV infection, hepatitis case, or tuberculosis
case; (v) needlestick injuries and cuts from sharp objects that are
contaminated with another person's blood or other potentially infectious
material, or (vi) any other illness, if the employee independently and
voluntarily requests that his or her name not be entered on the log.
Paragraph 1904.29(b)(8) establishes that these are the only types of
occupational injuries and illnesses that the employer may consider privacy
concern cases for recordkeeping purposes. Paragraph
1904.29(b)(9) permits employers discretion in recording case information if
the employer believes that doing so could compromise the privacy of the
employee's identity, even though the employee's name has not been entered.
This clause has been added because OSHA recognizes that, for specific
situations, coworkers who are allowed to access the log may be able to deduce
the identity of the injured or ill worker and obtain innapropriate knowledge
of a privacy-sensitive injury or illness. OSHA believes that these situations
are relatively infrequent, but still exist. For example, if knowing the
department in which the employee works would inadvertently divulge the
person's identity, or recording the gender of the injured employee would
identifying that person (because, for example, only one woman works at the
plant), the employer has discretion to mask or withhold this information both
on the Log and Incident Report. The
rule requires the employer to enter enough information to identify the cause
of the incident and the general severity of the injury or illness, but allows
the employer to exclude details of an intimate or private nature. The rule
includes two examples; a sexual assault case could be described simply as
"injury from assault," or an injury to a reproductive organ could
be described as "lower abdominal injury." Likewise, a work-related
diagnosis of post traumatic stress disorder could be described as
"emotional difficulty." Reproductive disorders, certain cancers,
contagious diseases and other disorders that are intimate and private in
nature may also be described in a general way to avoid privacy concerns. This
allows the employer to avoid overly graphic descriptions that may be
offensive, without sacrificing the descriptive value of the recorded
information. Paragraph
1904.29(b)(10) protects employee privacy if the employer decides voluntarily
to disclose the OSHA 300 and 301 forms to persons other than those who have a
mandatory right of access under the final rule. The paragraph requires the
employer to remove or hide employees' names or other personally identifying
information before disclosing the forms to persons other than government
representatives, employees, former employees or authorized representatives,
as required by paragraphs 1904.40 and 1904.35, except in three cases. The
employer may disclose the forms, complete with personally identifying
information, (2) only: (i) to an auditor or consultant hired by the employer
to evaluate the safety and health program; (ii) to the extent necessary for
processing a claim for workers' compensation or other insurance benefits; or
(iii) to a public health authority or law enforcement agency for uses and
disclosures for which consent , an authorization, or opportunity to agree or
object is not required under section 164.512 of the final rule on Standards
for Privacy of Individually Identifiable Health Information, 45 CFR 164.512. These
requirements have been included in § 1904.29 rather than in § 1904.35, which
establishes requirements for records access, because waiting until access is
requested to remove identifying information from the OSHA 300 Log could
unwittingly compromise the injured or ill worker's privacy and result in
unnecessary delays. The final rule's overall approach to handling privacy
issues is discussed more fully in the preamble discussion of the employee
access provisions in § 1904.35. The Treatment of Occupational Illness and Injury Data on the Forms The
treatment of occupational injury and illness data on the OSHA forms is a key
issue in this rulemaking. Although the forms themselves are not printed in
the Code of Federal Regulations (CFR), they are the method OSHA's
recordkeeping regulation uses to meet the Agency's goal of tracking and reporting
occupational injury and illness data. As such, the forms are a central
component of the recordkeeping system and mirror the requirements of the Part
1904 regulation. The final Part 1904 rule requires employers to use three
forms to track occupational injuries and illnesses: the OSHA 300, 300A, and
301 forms, which replace the OSHA 200 and 101 forms called for under the
former recordkeeping rule, as follows: 1. The OSHA Form 300, Log of Work-Related Injuries and Illnesses, replaces the Log portion of the
former OSHA Form 200 Log and Summary of Occupational Injuries and Illnesses.
The OSHA 300 Log contains space for a description of the establishment name,
city and state, followed by a one-line space for the entry for each
recordable injury and illness. 2. The OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, replaces the Summary portion of
the former OSHA Form 200 Log and Summary of Occupational Injuries and
Illnesses. The Form 300A is used to summarize the entries from the Form 300
Log at the end of the year and is then posted from February 1 through April
30 of the following year so that employees can be aware of the occupational
injury and illness experience of the establishment in which they work. The
form contains space for entries for each of the columns from the Form 300,
along with information about the establishment, and the average number of
employees who worked there the previous year, and the recordkeeper's and
corporate officer's certification of the accuracy of the data recorded on the
summary. (These requirements are addressed further in Section 1904.32 of the
final rule and its associated preamble.) 3. The OSHA Form 301, Injury and Illness Report, replaces the former OSHA 101
Form. Covered employers are required to fill out a one-page form for each
injury and illness recorded on the Form 300. The form contains space for more
detailed information about the injured or ill employee, the physician or
other health care professional who cared for the employee (if medical
treatment was necessary), the treatment (if any) of the employee at an
emergency room or hospital, and descriptive information telling what the
employee was doing when injured or ill, how the incident occurred, the
specific details of the injury or illness, and the object or substance that
harmed the employee. (Most employers use a workers' compensation form as a
replacement for the OSHA 301 Incident Report.) The
use of a three-form system for recordkeeping is not a new concept. The OSHA
recordkeeping system used a separate summary form from 1972 to 1977, when the
Log and Summary forms were combined into the former OSHA Form 200 (42 FR
65165). OSHA has decided that the three-form system (the 300 Log, the 300A
summary, and the 301 Incident Report) has several advantages. First, it
provides space for more cases to be entered on the Log but keeps the Log to a
manageable size. Second, it helps to ensure that an injured or ill employee's
name is not posted in a public place. When the forms were combined in 1977
into a single form, employers occasionally neglected to shield an employee's
name on the final sheet of the 200 Log, even though the annual summary form
was designed to mask personal identifiers. The use of a separate 300A summary
form precludes this possibility. Third, the use of a separate summary form
(the final rule's Form 300A) allows the data to be posted in a user-friendly
format that will be easy for employees and employers to use. Fourth, a
separate 300A Form provides extra space for information about an employee's
right to access the Log, information about the establishment and its
employees, and the dual certifications required by § 1904.32 of the rule.
Finally, a separate 300A Form makes it easier to attach to the reverse side
of the form worksheets that are designed to help the employer calculate the
average number of employees and hours worked by all employees during the
year. The
majority of the changes to the final forms (compared with the forms used with
the former rule and the proposed forms) have been made to reflect the
requirements of the final rule and are needed to align the forms with the
final regulatory requirements. All of the other changes to the forms reflect
formatting and editorial changes made to simplify the forms, make them easier
to understand and complete, and facilitate use of the data. The forms have
been incorporated into an information package that provides individual
employers with several copies of the OSHA 300, 300A, and 301 forms; general
instructions for filling out the forms and definitions of key terms; an
example showing how to fill out the 300 Log; a worksheet to assist employers
in computing the average number of employees and the total number of hours
worked by employees at the establishment in the previous year; a non-mandatory
worksheet to help the employer compute an occupational injury and illness
rate; and instructions telling an employer how to get additional help by (1)
accessing the OSHA Internet home page, or (2) by calling the appropriate
Federal OSHA regional office or the OSHA approved State-Plan with
jurisdiction. The package is included in final rule Section VI, Forms, later
in this preamble. The Size of the OSHA Recordkeeping Forms The
OSHA recordkeeping forms required by the final Part 1904 recordkeeping rule
are printed on legal size paper (8½" x 14"). The former rule's Log
was an 11 by 17-inch form, the equivalent of two standard 8½ by 11-inch
pages. The former 200 Log was criticized because it was unwieldy to copy and
file and contained 12 columns for recording occupational injury and
occupational illness cases. The proposed OSHA 300 Log and Summary would have
fit on a single 8½ by 11-inch sheet of paper (61 FR 4050), a change that
would have been made possible by the proposed elimination of redundancies on
the former 200 Log and of certain data elements that provided counts of
restricted workdays and separate data on occupational injury and illness
cases. The proposed OSHA 300 Form was favorably received by a large number of
commenters (see, e.g., Exs. 19, 44, 15: 48, 157, 246, 307, 347, 351,
373, 374, 378, 384, 391, 395, 396, 427, 434, 441, 443). For example, the
National Association of Plumbing-Heating-Cooling Contractors (NAPHCC) stated: NAPHCC
applauds the Agency's efforts to simplify the Injury and Illness Log and
Summary in the form of a new Form 300 and Form 301. Employers will be more
comfortable with the one-page forms -- they appear less ominous than the
oversized 200 Form and therefore have a better chance of being completed in a
timely and accurate manner (Ex. 15: 443, p. 6). A
number of commenters were concerned that proposed the 300 form would fail to
capture important data and argued that the former Log should be retained
(see, e.g., Exs. 15:15, 47, 283, 369, 429, 438). The primary argument
of this group of commenters was that the size of the form should not
determine which data elements were included on the Log and which were not.
The comment of the International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America -- UAW summed up this position:
"The UAW uses this data on a yearly basis when it becomes available at
the national level, and on a daily basis at the plant level. Compared to the
value of the summary data and data series, the goal of reducing the size of
the form to something easily Xeroxed is silly" (Ex. 15: 438, p. 2). The
International Brotherhood of Teamsters commented "OSHA believes the
change results in a simplified form that fits on a standard sheet of paper
that can be easily copied and kept on a personal computer. * * * The storage
capacity of an additional page in a personal computer is hardly burdensome.
The amount of information that can be collected should always be need based,
and never be limited to what an 8½" x 11" sheet of paper can hold"
(Ex. 15: 369, p. 49). OSHA
agrees that the proposed Log would have resulted in a significant loss of
useful data and has therefore maintained several data fields on the final
OSHA 300 Log to capture counts of restricted work days and collect separate
data on occupational injuries and several types of occupational illness.
However, there is a limit to the information that can be collected by any one
form. OSHA wishes to continue to make it possible for those employers,
especially smaller employers, who wish to keep records in paper form to do
so. It is also important that the Log be user-friendly, easily copied and
filed, and otherwise manageable. Although a form 8½ x 11 inches in size would
be even easier to manage, OSHA has concluded that a form of that size is too
small to accommodate the data fields required for complete and accurate
reporting. Accordingly,
OSHA has redesigned the OSHA 300 Log to fit on a legal size (8½ x 14 inches)
piece of paper and to clarify that employers may use two lines to enter a
case if the information does not fit easily on one line. The OSHA forms 300A
and 301, and the remainder of the recordkeeping package, have also been
designed to fit on the same-size paper as the OSHA 300 Log. For those
employers who use computerized systems (where handwriting space is not as
important) equivalent computer-generated forms can be printed out on 8½ x 11
sheets of paper if the printed copies are legible and are as readable as the
OSHA forms. Commenters
raised four major issues concerning the OSHA 300 Log: (1) Defining lost
workdays (discussed below); (2) collecting separate data on occupational
injury and occupational illness (discussed below); (3) collecting separate
data on musculoskeletal disorders (discussed below and in the summary and
explanation associated with § 1904.12; and (4) recurrences (discussed in the
summary and explanation associated with § 1904.6, Determination of new
cases). In addition, commenters raised numerous minor issues concerning the
300 Log data elements and forms design; these are discussed later in this
section. Defining Lost Workdays OSHA
proposed to eliminate the term "lost workdays," by replacing it
with "days away from work" (61 FR 4033). The OSHA recordkeeping
system has historically defined lost workdays as including both days away
from work and days of restricted work activity, and the Recordkeeping
Guidelines discussed how to properly record lost workday cases with days
away from work and lost workday cases with days of restricted work activity
(Ex. 2, p. 47, 48). However, many use the term "lost workday" in a
manner that is synonymous with "day away from work," and the term
has been used inconsistently for many years. Many commenters on the proposal
agreed that the term "lost workday" should be deleted from the
forms and the recordkeeping system because of this confusion (see, e.g.,
Exs. 33; 37; 15: 9, 26, 69, 70, 105, 107, 136, 137, 141, 146, 176, 184, 204,
224, 231, 266, 271, 272, 273, 278, 281, 287, 288, 301, 303, 305, 347, 384,
414, 428). The Akzo Nobel Chemicals Company (Ex. 37) simply commented
"[a] big ATTA BOY for removing restricted work cases from under the lost
time umbrella. They never really belonged there." William K. Principe of
the law firm of Constangy, Brooks & Smith, LLC, stated that: The
elimination of the term "lost work days" is a good idea, because
its use under the existing recordkeeping regulations has been confusing.
Recordkeepers have equated "lost work days" with "days away
from work," but have not thought that "lost work days"
included days of "restricted work activity." Thus, the elimination
of "lost work days" will result in more understandable terminology. The
Hoffman-La Roche, Inc. company agreed with OSHA's proposal to eliminate the
term lost workdays from the system, stating that "[t]he term "lost
workdays" is confusing and does not clearly define whether the case
involved days away from work or restricted days. However, the term "lost
workday case" still has a place in defining a case that has either days
away from work or restricted days." The Jewel Coal and Coke Company (Ex.
15: 281) remarked that: [w]e
believe that the listing of restricted work injuries/ illnesses has its
purpose as to the consideration of the seriousness of the injury or illness.
However, we believe that restricted work duty injuries/illnesses should be
placed in a separate category from days away from work and should not be
considered as serious as accidents with days away from work but are in fact
more serious than first Aid cases or other medically reportable cases. We
believe that the listing of the date of return of the employee to full work
activities may very well have it's place on the OSHA Form 301 or other
supplemental forms. In
the final rule, OSHA has eliminated the term "lost workdays" on the
forms and in the regulatory text. The use of the term has been confusing for
many years because many people equated the terms "lost workday"
with "days away from work" and failed to recognize that the former
OSHA term included restricted days. OSHA finds that deleting this term from
the final rule and the forms will improve clarity and the consistency of the
data. The
300 Log has four check boxes to be used to classify the case: death, day(s)
away from work, days of restricted work or job transfer; and case meeting
other recording criteria. The employer must check the single box that
reflects the most severe outcome associated with a given injury or illness.
Thus, for an injury or illness where the injured worker first stayed home to
recuperate and then was assigned to restricted work for several days, the
employer is required only to check the box for days away from work (column
I). For a case with only job transfer or restriction, the employer must check
the box for days of restricted work or job transfer (Column H). However, the
final Log still allows employers to calculate the incidence rate formerly
referred to as a "lost workday injury and illness rate" despite the
fact that it separates the data formerly captured under this heading into two
separate categories. Because the OSHA Form 300 has separate check boxes for
days away from work cases and cases where the employee remained at work but
was temporarily transferred to another job or assigned to restricted duty, it
is easy to add the totals from these two columns together to obtain a single
total to use in calculating an injury and illness incidence rate for total
days away from work and restricted work cases. Counting Days of Restricted Work or Job Transfer Although
the final rule does not use the term "lost workday" (which formerly
applied both to days away from work and days of restricted or transferred
work), the rule continues OSHA's longstanding practice of requiring employers
to keep track of the number of days on which an employee is placed on
restricted work or is on job transfer because of an injury or illness. OSHA
proposed to eliminate the counting of the number of days of restricted work
from the proposed 300 Log (61 FR 4046). The proposal also asked whether the
elimination of the restricted work day count would provide an incentive for
employers to temporarily assign injured or ill workers to jobs with little or
no productive value to avoid recording a case as one involving days away from
work (61 FR 4046). A
large number of commenters supported OSHA's proposal to eliminate the
counting of restricted work days (see, e.g., Exs. 21; 26; 27; 28; 33;
37; 51; 15: 9, 19, 26, 39, 44, 60, 65, 67, 69, 70, 76, 79, 82, 83, 85, 87,
100, 105, 107, 111, 119, 121, 123, 136, 137, 141, 145, 146, 154, 156, 159,
170, 171, 173, 176, 184, 188, 194, 199, 203, 204, 205, 218, 224, 225, 229,
230, 231, 234, 235, 239, 246, 247, 260, 262, 265, 266, 271, 272, 273, 278,
281, 283, 287, 288, 289, 298, 301, 303, 304, 305, 307, 317, 321, 332, 334,
336, 337, 341, 345, 346, 347, 351, 364, 368, 373, 384, 390, 391, 392, 401,
405, 409, 413, 414, 423, 424, 426, 427, 428, 430, 434, 437, 440, 442). For
example, the Union Carbide Corporation (Ex. 15: 391) argued that their: [e]xperience
with tracking lost or restricted workdays the way it is being done today
indicates that it is fruitless. The interest is in the number of lost workday
or restricted workday cases with only minor attention being given to the
number of days involved. Elimination of the term "lost workdays" in
regard to restricted workdays would surely be a step in the direction of
simplicity and focus. The severity of an injury/illness is more clearly
indicated by the number of days away from work than by any other means. The
inclusion of cases involving restricted work only clouds the issue. The
Monsanto Corporation (Ex. 28) urged the Agency to do away with all day
counts, noting that Monsanto: [u]ses
the recordable case as the basis of our performance measurement system. We
measure the number of days away and restricted but rarely look at them. We
agree that OSHA should eliminate the number of days of restricted work from
the requirements but we would also delete the number of days away as well.
While the number of days are some measure of "severity", we think a
better and simpler measure is just the cases rate for fatalities and/or days
away cases. The
commenters who argued for eliminating the counting of restricted workdays
offered several reasons: (1) Doing away with the counting would simplify the
recordkeeping system and reduce burden on employers (see, e.g., Exs.
33; 15: 69, 105, 136, 137, 141, 146, 156, 176, 184, 188, 203, 224, 231, 239,
266, 272, 273, 278, 288, 289, 301, 303, 304, 336, 337, 345, 346, 347, 390,
391, 409, 424, 426, 428, 430, 442); (2) eliminating the day counts would make
it easier to computerize the records (see, e.g., Exs. 15: 136, 137,
141, 224, 266, 278); (3) limiting counts of restricted work would match
workers' compensation insurance requirements, which typically count only days
away from work (see, e.g., Exs. 15: 225, 336); (4) counts of
restricted work have little or no value (see, e.g., Exs. 21; 15: 65,
105, 119, 154, 170, 203, 205, 235, 260, 262, 265, 332, 347, 391, 401, 405,
409, 430); (5) restricted workday counts are not used in safety and health
programs and their evaluation (see, e.g., Exs. 15: 65, 119, 154, 159,
194, 239, 271, 347, 409, 426, 428); (6) restricted workday counts are not a
good measure of injury and illness severity (see, e.g., Exs. 15: 336,
345); and (7) restricted workday counts are not a uniform or consistent
measure (see, e.g., Exs. 15: 235, 288, 289, 347, 409, 442). For
example, the National Grain and Feed Association (Ex. 15: 119) argued that
"[t]here is no evidence that the current restricted work activity day
counts are being used in safety and health programs and there is no purpose
in continuing the restricted work activity count requirement." The
Tennessee Valley Authority (Ex. 15: 235) argued that "[o]nly days away
from work or death should be recorded on the 300 log. Recording of restricted
work-day cases is difficult to consistently record, thereby, not providing a
good data base for comparison." However,
a number of commenters opposed the proposal to eliminate the counting of
restricted days (see, e.g., Exs. 35; 15: 31, 34, 41, 61, 72, 74, 181,
186, 281, 310, 350, 359, 369, 371, 380, 438). For example, Linda Ballas &
Associates (Ex. 15: 31) argued that: [r]estricted
work days should be counted. A restricted case with 1 restricted day would be
less severe than a restricted work case with 30 days. The elimination of the
restricted work activity day count will provide an incentive for employers to
temporarily assign injured or ill workers to jobs with little or no
productive value to avoid recording a case as one involving days away from
work.* * * Most
of these commenters argued that restricted work day data are needed to gauge
the severity of an occupational injury or illness (see, e.g., Exs. 15:
31, 34, 41, 181, 186, 310, 369, 371, 438) or that such data are a measure of
lost productivity (see, e.g., Exs. 15: 41, 61, 281). The American
Association of Occupational Health Nurses stated that "[O]SHA should be
aware that modifications to recording restricted work days will result in the
loss of valuable information related to the severity of the
injuries/illnesses." The Jewel Coal and Coke Company (Ex. 15: 281)
stated that: We
believe that the listing of restricted work injuries/ illnesses has its
purpose as to the consideration of the seriousness of the injury or illness.
However, we believe that restricted work duty injuries/illnesses should be
placed in a separate category from days away from work and should not be
considered as serious as accidents with days away from work but are in fact
more serious than first Aid cases or other medically reportable cases.* * * The
North Carolina Department of Labor (Ex. 15: 186) recommended that: [r]estricted
work day counts as well as lost work day counts can be measures of the
severity of individual illnesses/injuries. In addition through trend analysis
lost work day rates and restricted work day rates may be calculated by job,
department, etc. to identify higher risk jobs, departments, etc. and/or
measure the effectiveness of interventions and progress in the development of
a comprehensive ergonomics program. As
to OSHA's question in the proposal about the incentive for employers to offer
restricted work to employee's in order to avoid recording a case with days
away from work, a number of commenters questioned whether such an incentive
exists (see, e.g., Exs. 15: 13, 26, 27, 39, 79, 136, 137, 141, 156,
181, 199, 218, 224, 229, 242, 263, 266, 269, 270, 278, 283, 341, 364, 377,
409, 426, 434, 440). For example, the United Technologies Company (UTC)
stated that "[U]TC does not believe that the recording or not recording
of restricted days will influence management's decision to temporarily assign
employees to restricted work. The decision to place an employee on restricted
work is driven by workers' compensation costs rather than OSHA incidence
rates" (Ex. 15: 440). The American Textile Manufacturers Association
(ATMI) agreed: [A]TMI
believes that this will not provide an incentive for employers to temporarily
assign injured or ill workers to jobs with little or no productive value to
avoid recording a case as one involving days away from work. The restricted
work activity day count is in no way related to an employer wanting to avoid
having days away from work. Workers' compensation claims and, for the most
part, company safety awards are based on the number of "lost-time
accidents." The counting of restricted work days has never been an
incentive or disincentive for these two key employer safety measures and ATMI
believes that this will not change. (Ex. 15: 156) Other
commenters, however, believed there could be incentive effects (see, e.g.,
Exs. 15: 13, 31, 74, 111, 359, 369). In
the final rule, OSHA has decided to require employers to record the number of
days of restriction or transfer on the OSHA 300 Log. From the comments
received, and based on OSHA's own experience, the Agency finds that counts of
restricted days are a useful and needed measure of injury and illness
severity. OSHA's decision to require the recording of restricted and
transferred work cases on the Log was also influenced by the trend toward
restricted work and away from days away from work. In a recent article, the
BLS noted that occupational injuries and illnesses are more likely to result
in days of restricted work than was the case in the past. From 1978 to 1986,
the annual rate in private industry for cases involving only restricted work
remained constant, at 0.3 cases per 100 full-time workers. Since 1986, the
rate has risen steadily to 1.2 cases per 100 workers in 1997, a fourfold
increase. At the same time, cases with days away from work declined from 3.3
in 1986 to 2.1 in 1997 (Monthly Labor Review, June 1999, Vol. 122. No. 6, pp.
11-17). It is clear that employers have caused this shift by modifying their
return-to-work policies and offering more restricted work opportunities to injured
or ill employees. Therefore, in order to get an accurate picture of the
extent of occupational injuries and illnesses, it is necessary for the OSHA
Log to capture counts of days away from work and days of job transfer or
restriction. The
final rule thus carries forward OSHA's longstanding requirement for employers
to count and record the number of restricted days on the OSHA Log. On the
Log, restricted work counts are separated from days away from work counts,
and the term "lost workday" is no longer used. OSHA believes that
the burden on employers of counting these days will be reduced somewhat by
the simplified definition of restricted work, the counting of calendar days
rather than work days, capping of the counts at 180 days, and allowing the
employer to stop counting restricted days when the employees job has been
permanently modified to eliminate the routine job functions being restricted
(see the preamble discussion for 1904.7 General Recording Criteria). Separate 300 Log Data on Occupational Injury and Occupational Illness OSHA
proposed (61 FR 4036-4037) to eliminate any differences in the way
occupational injuries, as opposed to occupational illnesses, were recorded on
the forms. The proposed approach would not, as many commenters believed, have
made it impossible to determine the types and number of cases of occupational
illnesses at the aggregated national level, although it would have eliminated
the distinction between injuries and illnesses at the individual
establishment level. In other words, the proposed approach would have
involved a coding system that the BLS could use to project the incidences of
several types of occupational illnesses nationally, but would not have
permitted individual employers to calculate the incidence of illness cases at
their establishments. Many
commenters reacted with concern to the proposal to eliminate, for recording
purposes, the distinction between occupational injuries and occupational
illnesses, and to delete the columns on the Log used to record specific categories
of illnesses (see, e.g., Exs. 15: 213, 288, 359, 369, 407, 418, 429,
438). For example, Con Edison stated that "Distinguishing between
injuries and illness is a fundamental and essential part of
recordkeeping" (Ex. 15: 21), and the National Institute for Occupational
Safety and Health (NIOSH) discussed the potentially detrimental effects on
the Nation's occupational injury and illness statistics of such a move,
stating "For occupational health surveillance purposes * * * NIOSH
recommends that entries on the OSHA log continue to be categorized separately
as illnesses and injuries" (Ex. 15: 407). Many
commenters also criticized OSHA's proposal to delete from the Log the
separate columns for 7 categories of occupational illnesses (see, e.g.,
Exs. 20, 35, 15: 27, 283, 371). These commenters pointed out that these
categories of illnesses have been part of the recordkeeping system for many
years and that they captured data on illness cases in 7 categories:
occupational skin diseases or disorders, dust diseases of the lungs,
respiratory conditions due to toxic agents, poisoning (systemic effects of
toxic materials), disorders due to physical agents, disorders associated with
repeated trauma, and all other occupational illnesses. Typical of the views
of commenters concerned about the proposal to delete these columns from the
Log was the comment of the United Auto Workers: "OSHA should abandon the
plan to change the OSHA 200 form to eliminate illness categories. The illness
categories in the summary presently provide critically necessary information
about cumulative trauma disorders, and useful information about respiratory
conditions" (Ex: 15: 348). Several
commenters supported the proposed concept of adding a single column to the
form on which employers would enter illness codes that would correspond to
the illness conditions listed in proposed Appendix B, which could then be
decoded by government classifiers to project national illness incidence rates
for coded conditions (see, e.g., Exs. 20, 15: 27, 369, 371). For
example, the United Brotherhood of Carpenters and Joiners of America stated: The
UBC would recommend [that].* * * A column should be added for an
identification code for recordable conditions from Appendix B. (Eg. 1 =
hearings loss, 2 = CTD's. 3
= blood lead. Etc.) (Ex. 20). After
a thorough review of the comments in the record, however, OSHA has concluded
that the proposed approach, which would have eliminated, for recording
purposes, the distinction between work-related injuries and illnesses, is not
workable in the final rule. The Agency finds that there is a continuing need
for separately identifiable information on occupational illnesses and
injuries, as well as on certain specific categories of occupational
illnesses. The published BLS statistics have included separate estimates of
the rate and number of occupational injuries and illnesses for many years, as
well as the rate and number of different types of occupational illnesses, and
employers, employees, the government, and the public have found this
information useful and worthwhile. Separate illness and injury data are
particularly useful at the establishment level, where employers and employees
can use them to evaluate the establishment's health experience and compare it
to the national experience or to the experience of other employers in their
industry or their own prior experience. The data are also useful to OSHA
personnel performing worksite inspections, who can use this information to
identify potential health hazards at the establishment. Under
the final rule, the OSHA 300 form has therefore been modified specifically to
collect information on five types of occupational health conditions:
musculoskeletal disorders, skin diseases or disorders, respiratory
conditions, poisoning, and hearing loss. There is also an "all other
illness" column on the Log. To record cases falling into one of these
categories, the employer simply enters a check mark in the appropriate
column, which will allow these cases to be separately counted to generate
establishment-level summary information at the end of the year. OSHA
rejected the option suggested by the UBC and others (see, e.g., Exs.
20, 15: 27, 369, 371) -- to add a single column that would include a code for
different types of conditions -- because such an approach could require
employers to scan and separately tally entries from the column to determine
the total number of each kind of illness case, an additional step that OSHA
believes would be unduly burdensome. Because the scanning and tallying are complex,
this approach also would be likely to result in computational errors. In
the final rule, two of the illness case columns on the OSHA 300 Log are
identical to those on the former OSHA Log: a column to capture cases of skin
diseases or disorders and one to capture cases of systemic poisoning. The
single column for respiratory conditions on the new OSHA Form 300 will
capture data on respiratory conditions that were formerly captured in two
separate columns, i.e., the columns for respiratory conditions due to toxic
agents (formerly column 7c) and for dust diseases of the lungs (formerly
column 7b). Column 7g of the former OSHA Log provided space for data on all
other occupational illnesses, and that column has also been continued on the
new OSHA 300 Log. On the other hand, column 7e from the former OSHA Log,
which captured cases of disorders due to physical agents, is not included on
the new OSHA Log form. The cases recorded in former column 7e primarily
addressed heat and cold disorders, such as heat stroke and hypothermia;
hyperbaric effects, such as caisson disease; and the effects of radiation,
including occupational illnesses caused by x-ray exposure, sun exposure and
welder's flash. Because space on the form is at a premium, and because column
7e was not used extensively in the past (recorded column 7e cases accounted
only for approximately five percent of all occupational illness cases), OSHA
has not continued this column on the new OSHA 300 Log. OSHA
has, however, added a new column specifically to capture hearing loss cases
on the OSHA 300 Log. The former Log included a column devoted to repeated
trauma cases, which were defined as including noise-induced hearing loss
cases as well as cases involving a variety of other conditions, including
certain musculoskeletal disorders. Several commenters recommended that
separate data be collected on hearing loss (see, e.g., Exs. 20, 53X,
p.76, 15: 31). Dedicating a column to occupational hearing loss cases will
provide a valuable new source of information on this prevalent and often
disabling condition. Although precise estimates of the number of
noise-exposed workers vary widely by industry and the definition of noise
dose used, the EPA estimated in 1981 that about 9 million workers in the
manufacturing sector alone were occupationally exposed to noise levels above
85 dBA. Recent risk estimates suggest that exposure to this level of noise
over a working lifetime would cause material hearing impairment in about 9
percent, or approximately 720,000, U.S. workers (NIOSH, 1998). A separate
column for occupational hearing loss is also appropriate because the BLS
occupational injury and illness statistics only report detailed injury
characteristics information for those illness cases that result in days away
from work. Because most hearing loss cases do not result in time off the job,
the extent of occupational hearing loss has not previously been accurately
reflected in the national statistics. By creating a separate column for
occupational hearing loss cases, and clearly articulating in section 1904.10
of the final rule the level of hearing loss that must be recorded, OSHA
believes that the recordkeeping system will, in the future, provide accurate
estimates of the incidence of work-related loss of hearing among America's
workers. Column on the Log for Musculoskeletal Disorders Column
7f of the former Log also was intended to capture cases involving repetitive
motion conditions, such as carpal tunnel syndrome, tendinitis, etc. These
conditions have been called by many names, including repetitive stress
injuries, cumulative trauma disorders, and overuse injuries. OSHA has decided
to include a separate column on the Log for musculoskeletal disorders (MSDs),
the preferred term for injuries and illnesses of the muscles, nerves,
tendons, ligaments, joints, cartilage and spinal discs, including those of
the upper extremities, lower extremities, and back. Many MSDs are caused by
workplace risk factors, such as lifting, repetitive motion, vibration,
overexertion, contact stress, awkward or static postures, and/or excessive
force. The repeated trauma column on the former OSHA Log did not permit an
accurate count of musculoskeletal disorders, both because other conditions,
such as occupational hearing loss, were included in the definition of
repeated trauma and because many musculoskeletal disorders -- including lower
back injuries -- were excluded. The column was limited to disorders
classified as illnesses, but OSHA instructed employers to record all back
cases as injuries rather than illnesses, even though back disorders are
frequently associated with exposure to occupational stresses over time (Ex.
2, p. 38). In
its proposal, OSHA asked for comment on the need for a separate column
containing information on musculoskeletal disorder (MSD) cases such as low
back pain, tendinitis and carpal tunnel syndrome. OSHA received numerous
comments opposing the addition of an MSD column to the Log (see, e.g.,
Exs. 15: 9, 60, 78, 105, 122, 136, 137, 141, 201, 218, 221, 224, 266, 278,
305, 308, 318, 346, 395, 397, 406, 414, 430). These commenters objected on
several grounds: because they believed that including such a column would
make the forms more complex (Ex. 15: 414), because the column would have
"no utility" (Ex. 15: 397), or because the column would only
capture a small percentage of total MSD cases (Ex. 15: 210). Several
commenters objected because they believed that an MSD column would duplicate
information already obtained through the case description (see, e.g.,
Exs. 15: 9, 105, 210, 221, 406). For example, the law firm of Ogletree,
Deakins, Nash, Smoak & Stewart offered comments on behalf of a group of
employers known as the ODNSS Coalition, remarking that "The log and
system of OSHA recordkeeping would not benefit from a separate column for
musculoskeletal disorders. The proposed rules for recording these disorders
are clear, and the revisions to the "case description" column
appearing on the OSHA Form 300 provide for the ample identification of the
disorders, which will enable all interested parties to track and analyze
entries of that nature" (Ex. 15: 406). Another group of commenters
contended that a separate MSD column would result in an inaccurate picture of
MSD incidence because the numbers recorded would increase as a result of the inclusion
of lower back MSDs in the cases to be entered in the column (see, e.g.,
Exs. 15: 305, 308, 318, 346). Representative of these comments is one from
the National Association of Manufacturers (NAM): Given
the over-inclusive definitions of the terms "work-related,"
"injury or illness," "medical treatment" and
"MSDs" (in Appendix B), and the fact that, for the first time, back
injuries would be included as MSDs, we strongly objected to that idea. Under
that approach, the MSD numbers probably would have been huge, would have
painted a grossly inaccurate and misleading picture as to the current
prevalence of MSDs, and would have been cited as justification for an
ergonomics standard. Unless and until those deficiencies are completely
eliminated, the NAM remains unalterably opposed to the inclusion of an MSD
column on the OSHA Form 300 (Ex. 15: 305). OSHA
also received numerous comments supporting the addition of a separate MSD
column on the Log (see, e.g., Exs. 35; 15: 32, 156, 371, 379, 380,
415, 418, 438). For example, the United Food and Commercial Workers stated
that: Of
key concern to our membership is the lack of any categorization for
musculoskeletal disorders (MSD). A major concern in meatpacking and poultry
plants, our committees will now be forced to spend endless hours poring over
the logs, reading each individual definition and deciding whether it is a
MSD. The logs are often hand written and xerox copies of these are difficult
to read. This is a real burden for workers, companies, joint committees and
anyone using the logs (Ex. 15: 371). After
a thorough review of the record, and extensive consultation with NIOSH and
the BLS to establish the need for such statistics, OSHA has concluded that
including a separate column on the final OSHA 300 Log for MSD cases is
essential to obtain an accurate picture of the MSD problem in the United
States. In 1997, more than 600,000 MSDs resulting in days away from work were
reported to the BLS by employers, although determining this number has
required close cooperation between OSHA and the BLS and several "special
runs" by the BLS (i.e., computer analyses performed especially for OSHA)
(see on the Internet at ftp:// 146.142.4.23/pub/special.requests/ocwc/osh/).
OSHA believes that such a column on the OSHA 300 Log will not only permit
more complete and accurate reporting of these disorders and provide
information on the overall incidence of MSDs in the workplace, it will
provide a useful analytical tool at the establishment level. OSHA recognizes
that the column will add some complexity to the form, but believes that the
additional complexity will be more than offset by the fact that all
recordable MSDs will be captured in a single entry on the Log. Thus, the
total count of cases in the MSD column will allow employers, employees,
authorized representatives, and government representatives to determine, at a
glance, what the incidence of these disorders in the establishment is. OSHA
does not agree with those commenters who stated that entries in the MSD
column will duplicate information recorded in the injury/illness description;
the case description column will include additional information, e.g.,
on the particular type of MSD (back strain, carpal tunnel syndrome, wrist
pain, tendinitis, etc.). OSHA
also does not agree with those commenters who argued that including a
separate column for MSDs would introduce error into the national statistics
on the incidence of MSDs. The views of these commenters are not persuasive
because the number of reportable lost-workday MSDs is already being captured
in national statistics, albeit under two categories ("injuries" and
"illnesses") that are difficult to interpret. In response to
comments that including a separate column on the Log will provide OSHA with "justification
for an ergonomics standard," the Agency notes that it has already
developed and proposed an ergonomics standard despite the absence of a single
MSD column on employers' Logs. Miscellaneous 300 Form Issues The
proposed OSHA Form 300 contained a column designated as the "Employer
Use" column. Many employers keep two sets of injury and illness records;
one for OSHA Part 1904 purposes and another for internal safety management
system purposes. OSHA envisioned that the proposed Employer Use column would
be used to tailor the Log to meet the needs of the establishment's particular
safety and health program and reduce the practice some employers have adopted
of keeping multiple sets of occupational injury and illness records for
various purposes. For example, OSHA envisioned that an employer could enter
codes in this column to collect data on occupational injuries and illnesses
beyond what is required by the OSHA Part 1904 regulation, such as the results
of accident investigations, whether the case was accepted by workers' compensation,
or whether or not the employee was hospitalized for treatment. A
number of commenters supported the proposed Employer Use column (see, e.g.,
Exs. 15: 87, 136, 137, 141, 170, 224, 266, 278, 359). Some stated that
employers could utilize the column to identify cases based on specific
criteria that could be used in their internal safety and health evaluations
(see, e.g., Exs. 15: 136, 137, 141, 170, 224, 266, 278, 359). For
example, the National Safety Council stated "The Council believes that
adding the employer use column to the log will effectively reduce the adverse
effects of accountability systems. This will allow employers to identify
cases for which supervisors and managers should be held accountable, using
company specific criteria" (Ex. 15: 359, p. 14). Another commenter,
Kathy Mull, stated "The comment on possible use of the 'employer use
column' to note cases not included in internal safety statistics is a
possible mechanism to defer pressures on internal performance measures as
tied strictly to OSHA recordkeeping" (Ex. 15: 278, p. 4). Several
commenters opposed the addition to the Log of an Employer Use column, however
(see, e.g., Exs. 15: 28, 82, 109, 132, 375). Among these was the
American Petroleum Institute, which stated "If the revised regulation
meets API's recommended system objectives, the 'employer use' column would
not be needed. Cases recorded would then be credible, reasonable and
meaningful to employers, employees (and to OSHA). * * * OSHA should consider
the employer as the primary user of the system" (Ex. 15: 375A, p. 55).
Commenters also expressed concern that an Employer Use column could have a
negative effect on the use of the data. For example, the Sherman Williams
Company stated "It is not necessary to provide column j, for
"other" information that may be provided by the employer. It will
lead to inconsistent utilization of the proposed form. Delete column j of the
proposed Form 300" (Ex. 15: 132, p. 1). Several
other commenters argued for the addition of new data requirements to the OSHA
300 Log, as follows:
OSHA
has not added the fields or columns suggested by commenters to the final 300
or 301 forms because the available space on the form has been allocated to
other data that OSHA considers more valuable. In addition, there is no
requirement in the final rule for employers to enter any part of an
employee's social security number because of the special privacy concerns
that would be associated with that entry and employee access to the forms.
However, employers are, of course, free to collect additional data on
occupational injury and illness beyond the data required by the Agency's Part
1904 regulation. The OSHA 301 Form Although
the final OSHA 300 Log presents information on injuries and illnesses in a
condensed format, the final OSHA 301 Incident Record allows space for
employers to provide more detailed information about the affected worker, the
injury or illness, the workplace factors associated with the accident, and a
brief description of how the injury or illness occurred. Many employers use
an equivalent workers' compensation form or internal reporting form for the
purpose of recording more detailed information on each case, and this
practice is allowed under paragraph 1904.29(b)(4) of the final rule. The
OSHA Form 301 differs in several ways from the former OSHA 101 form it
replaces, although much of the information is the same as the information on
the former 101 Form, although it has been reworded and reformatted for
clarity and simplicity. The final Form 301 does not require the following
data items that were included on the former OSHA 101 to be recorded: --
The employer name and address; --
Employee social security number; --
Employee occupation; --
Department where employee normally works; --
Place of accident; --
Whether the accident occurred on the employer's premises; and --
Name and address of hospital. OSHA's
reasons for deleting these data items from the final 301 form is that most
are included on the OSHA Form 300 and are therefore not necessary on the 301
form. Eliminating duplicate information between the two forms decreases the
redundancy of the data collected and the burden on employers of recording the
data twice. The employee social security number has been removed for privacy
reasons. OSHA believes that the information found in several other data
fields on the 301 Form (e.g., the employee's name, address, and date
of birth) provides sufficient information to identify injured or ill
individuals while protecting the confidentiality of social security numbers. OSHA
has also added several items to the OSHA Form 301 that were not on the former
OSHA No. 101: --
The date the employee was hired; --
The time the employee began work; --
The time the event occurred; --
Whether the employee was treated at an emergency room; and --
Whether the employee was hospitalized overnight as an in-patient (the form
now requires a check box entry rather than the name and address of the
hospital). OSHA
concludes that these data fields will provide safety and health professionals
and researchers with important information regarding the occurrence of
occupational injuries and illnesses. The questions pertaining to what the
employee was doing, how the injury or illness occurred, what the injury or
illness was, and what object or substance was involved have been reworded
somewhat from those contained on the former OSHA No. 101, but do not require
employers or employees to provide additional information. Proposed Form 301 The
proposed OSHA 301 Injury and Illness Incident Record differed in minor
respects from the former OSHA 101. For example, a number of fields would have
been eliminated to reduce redundancy between the Log and the Incident Report,
and several items would have been added to the Incident Report to obtain
additional information about occupational injuries and illnesses. OSHA
proposed to add to the Form 301 the following: --
The date the employee was hired; --
The time the employee began work; --
The time the event occurred; --
Whether the employee was treated at an emergency room; --
Whether the employee was hospitalized overnight as an in-patient; --
The equipment, materials or chemicals the employee was using when the event
occurred; and --
The activity the employee was engaged in when the event occurred. In
addition, the proposed regulation would have required the employer to ask
several questions (questions 16 through 18) in the same order and using the
same language as used on the OSHA forms, in order to obtain more consistent
and accurate data about these data items. A
number of commenters approved of the proposed Form 301 (see, e.g.,
Exs. 21; 15: 32, 153, 246, 324, 369, 374, 380, 396, 427, 441). For example,
the International Brotherhood of Teamsters (Ex. 15: 369) stated that the
union "[s]upports the [proposed] modifications of the OSHA Injury and
Illness Incident Record (OSHA Form 301) to collect more useful
information." Other commenters preferred the former OSHA 101 form and
urged OSHA to retain it (see, e.g., Exs. 15: 47, 48, 122, 242). For
example, the Boiling Springs Fire District (Ex. 15: 47) opposed any changes
to the Log or 101 forms, stating "[W]e like the forms we are presently
using and feel that the information in these forms is adequate. I am a great
believer in the old saying 'if it is not broke -- why fix it'?" Many
of the commenters who specifically addressed the proposed 301 form were
concerned about the privacy implications of providing employees, former
employees, and employee representatives with access to the OSHA 301 forms.
These concerns are addressed in detail in the section of this summary and
explanation associated with section 1904.35, Employee involvement. Many other
commenters were concerned with the use of equivalent forms (discussed above)
and with the requirement to ask certain questions in the same order and using
the same language (also discussed above). The remaining comments relating to
the proposed forms are grouped into three categories: comments about the
proposed case detail questions (proposed questions 9, 10, 16, 17 and18) and
the data they would collect; the other fields OSHA proposed to add to the
form 101/301; and comments urging the Agency to place additional data fields
on the 301 form. Rewording of the Proposed Case Detail Questions (questions 9, 10, 16,
17, and 18) OSHA
proposed to include five questions on the final OSHA 301 form to gather
information about the details of each work-related injury or illness case: --
Proposed question 9 asked for information about the specific injury or
illness (e.g., second degree burn or toxic hepatitis); --
Proposed question 10 asked for information on the body part or parts affected
(e.g., lower right forearm); --
Proposed question 16 asked for information on all equipment, materials or
chemicals the employee was using when the event occurred; --
Proposed question 17 asked for information on the specific activity the
employee was engaged in when the event occurred; --
Proposed question 18 asked for information on how the injury or illness
occurred, including a description of the sequence of events that led up to
the incident and the objects or substances that directly injured or made the
employee ill. OSHA
received only one comment about the contents of the proposed questions:
George R. Cook, Jr., of the Hearing Conservation Services Company, stated: Questions
9, 10, and 16 on the OSHA 301 form should be worded so that the combination
of the answers to these three questions could be used as the answer to Question
F. on the OSHA 300. Therefore, if a form 301 is filled out in computerized
form, that information could then be carried over to the form 300 thus
eliminating the need for duplicate entry (Ex. 15: 188). As
discussed above, final Form 301 no longer requires the employer to include
these questions on any equivalent form in the same format or language as that
used by the OSHA 301 form. However, any employer wishing to take the approach
suggested by Mr. Cook is free to do so. Several
commenters objected to proposed question 16 and questioned why information on
all of the materials, equipment or chemicals the employee was using when the
event occurred was needed (see, e.g., Exs. 15: 35, 205, 318, 334, 375,
424). For example, the Chocolate Manufacturers Association and the National
Confectioners Association, in a joint comment (Ex. 15: 318, p. 9) , stated: [W]e
strongly disagree with the approach reflected in Question 16. We believe the
additional information sought by Question 16 (and not by Question 18) is irrelevant
and would not, in any event, justify a second set of reporting forms for
every recordable incident subject to federal or state OSHA jurisdiction.
Requiring a listing of "all" equipment, materials or chemicals an
employee might have been using -- without regard to whether they contributed
to the injury or illness -- would serve no useful purpose. OSHA
agrees with this assessment and has not included this question from the final
301 form. The
final form solicits information only on the object or substance that directly
harmed the employee. The final 301 form contains four questions eliciting
case detail information (i.e., what was the employee doing just before the
incident occurred?, what happened?, what was the injury or illness?, and what
object or substance directly harmed the employee?). The language of these
questions on the final 301 form has been modified slightly from that used in
the proposed questions to be consistent with the language used on the BLS
Survey of Occupational Injuries and Illnesses collection form. The BLS
performed extensive testing of the language used in these questions while
developing its survey form and has subsequently used these questions to
collect data for many years. The BLS has found that the order in which these
questions are presented and the wording of the questions on the survey form
elicit the most complete answers to the relevant questions. OSHA believes
that using the time-tested language and ordering of these four questions will
have the same benefits for employers using the OSHA Form 301 as they have had
for employers responding to the BLS Annual Survey. Matching the BLS wording
and order will also result in benefits for those employers selected to
participate in the BLS Annual Survey. To complete the BLS survey forms,
employers will only need to copy information from the OSHA Injury and Illness
Incident Report to the BLS survey form. This should be easier and less
confusing than researching and rewording responses to the questions on two
separate forms. The Data Fields OSHA Proposed to Change on the Proposed 301 Form Proposed field 5, Date hired. OSHA proposed to add this data field to
collect additional data about the work experience of the injured or ill
worker. Such data can be very useful for employers, employees, and OSHA
because it enables researchers to discover, for example, whether newly hired
or inexperienced workers experience relatively more injuries and illnesses
than more experienced workers. Several commenters questioned the value of the
data OSHA proposed to collect in field 5 (see, e.g., Exs. 15: 151,
152, 179, 180, 201, 347, 409). For example, Caterpillar Inc. (Ex. 15: 201)
recommended that "[i]tem 5 of Form 301 be deleted. The date hired is not
a significant factor in analyzing injury causation. If any similar data is
necessary, it should be the time on the current job, which is a better
indicator of relative job skills or work experience." Several commenters
asked for clarification of the "date hired" phrase (see, e.g.,
Exs. 15: 151, 152, 179, 180). For example, Atlantic Marine, Inc. (Ex. 15:
180) asked "What date shall be recorded as the "Date Hired" if
an employee is laid off, is terminated, or resigns and then is rehired?
Should the date of initial hire or the date of rehire be recorded?' OSHA
continues to believe that the data gathered by means of the "date
hired" field will have value for analyzing occupational injury and
illness data and has therefore included this data field on the final OSHA 301
form. These data are useful for analyzing the incidence of occupational
injury and illness among newly hired workers and those with longer tenure.
OSHA is aware that the data collected are not a perfect measure of job
experience because, for example, an employee may have years of experience doing
the same type of work for a previous employer, and that prior experience will
not be captured by this data field. Another case where this data field may
fail to capture perfect data could occur in the case of an employee who has
worked for the same employer for many years but was only recently reassigned
to new duties. Despite cases such as these, inclusion of this data field on
the Form 301 will allow the Agency to collect valid data on length of time on
the job for most employment situations. For
the relatively infrequent situation where employees are hired, terminated,
and then rehired, the employer can, at his or her discretion, enter the date
the employee was originally hired, or the date of rehire. Proposed field 6, Name of health care provider; proposed field 7, If
treatment off site, facility name and address; and proposed field 8,
Hospitalized overnight as in-patient? The former OSHA Form 101 included similar
data fields: former field 18 collected the "name and address of
physician," while former field 19 collected data on "if
hospitalized, name and address of hospital." Several commenters
discussed these data fields and questioned their usefulness for analytical
purposes (see, e.g., Exs. 15: 95, 151, 152, 179, 180, 347, 409). The
Pacific Maritime Association (Ex. 15: 95) noted the difficulty of collecting
the data requested by proposed data fields 5, 6, 7, and 13 as they pertain to
longshoremen: Items
5, 6, 7, and 13 on the OSHA Form 301 presents problems for direct employers
of longshoremen. Longshoremen are hired on a daily basis, select their own
health care provider; may be treated at a facility of their choice, and may
not return to the same employer when returning to work. Several
commenters asked OSHA to clarify the data that OSHA was asking for in these
data fields (see, e.g., Exs. 15: 51, 152, 179, 180, 347, 409). For
example, the Ford Motor Company (Ex. 15: 347) asked: [I]tem
6, "Name of health care provider" is unclear in terms of the
general instructions. Who is considered the primary health care provider? Is
it the individual who sees the employee on the initial medical visit, the
individual who renders the majority of care for a case, or the individual who
renders care if the employee is referred to an off-site provider on the
initial visit? We feel that the last choice is the correct response. We also
question the benefit of providing this information. The criteria for OSHA
recordability focuses on the care provided, and not on the individual
providing the care. Item
7, "If treated off-site, facility name and address" requires more
specific instructions as to when this field must be completed. Is this to be
completed if the employee is referred to an outside provider on the initial
visit, or is this to be completed should the individual be referred out later
in the course of the injury or illness? We feel that the former is the
correct response. We also question the benefit of providing this information. OSHA
has decided to continue to collect information on final Form 301 concerning
the treatment provided to the employee (proposed data field 7). OSHA's
experience indicates that employers have not generally had difficulty in
providing this information, either in the longshoring or any other industry.
The data in this field is particularly useful to an OSHA inspector needing
additional information about the medical condition of injured or ill
employees. (OSHA does not request this medical information without first
obtaining a medical access order under the provisions of 29 CFR part 1913,
Rules Concerning OSHA Access to Employee Medical Records.) The final OSHA 301
Form therefore includes a data field for information on the off-site treating
facility. The
final 301 Form also includes a data field requesting the name of the health
care professional seen by the injured or ill employee. The employer may enter
the name either of the physician or other health care professional who
provided the initial treatment or the off-site treatment. If OSHA needs
additional data on this point, the records of the health care professional
listed will include both the name of the referring physician or other health
care professional as well as the name of the health care professional to whom
the employee was referred for specialized treatment. Several
commenters asked OSHA to collect data on whether a hospitalization involved
in-patient treatment or was limited to out-patient treatment (see, e.g.,
Exs. 15: 151, 152, 179, 180). For example, Alabama Shipyard, Inc. recommended
"Instead of asking in [proposed] item 8 if an employee is hospitalized
overnight as in-patient, have a check box to record whether the treatment was
as an in-patient or outpatient status" (Ex. 15: 152). OSHA agrees that
the additional information suggested by this commenter would be useful, and
final OSHA Form 301 asks two hospitalization-related questions: Was employee
treated in an emergency room?, and Was employee hospitalized overnight as an
in-patient? Proposed question 13, date of return to work at full capacity: The proposed Injury and Illness Incident
Report (Form 301) contained a data field requiring the date the employee
returned to work at full capacity if the case involved restricted work
activity or days away from work. This field was included to provide
information regarding the length of time the employee was partially or fully
incapacitated by the injury or illness. However, because the final rule
requires employers to record day counts both for cases involving days away
from work and cases involving job transfer or restriction (see discussion
above), the date at which an employee returned to work at full capacity field
is no longer necessary and does not appear on the final form. Proposed questions 14, Time of event and 15, Time employee began work: No commenter objected to the
inclusion of proposed data field 14, Time of event, and only two commenters
objected to proposed data field 15, Time employee began work (see, e.g.,
Exs. 15: 347, 409). Both of these commenters, the Ford Motor Company and the
American Automobile Manufacturers Association, stated that: "Time
employee began work," is of questionable benefit. Many employees perform
a variety of jobs during the day or may have their job changed during the day
(work added or subtracted). This question is burdensome and offers little
benefit for data analysis. Several
commenters discussed the way the proposed form collected the new information
on the time of the accident (see, e.g., Exs. 15: 151, 152, 179, 180,
260, 262, 265, 347, 401, 409). Several of these commenters suggested that
OSHA do away with the am/pm designation and use a 24-hour clock instead (see,
e.g., Exs. 15: 151, 152, 179, 180). The comments of Atlantic Marine
(Ex. 15: 152) are representative: Change
the form from using A.M. or P.M. to using a 24-hour clock. A 24-hour clock is
much easier to use in drawing conclusions on the relationship between
injuries/illnesses and the time of day that they occurred. OSHA may find that
many employers are currently using a 24-hour clock system. Another
group of commenters suggested that OSHA add am/pm boxes the employer could
simply check off as an easier way to collect the data (see, e.g., Exs.
15: 260, 262, 265, 401). For example, the Edison Electric Institute (Ex. 15:
401) suggested that "Questions 14 and 15 should include a box which can
be checked for AM and PM to reduce the possibility that this information will
be omitted." OSHA
has included on the final 301 form the two questions asking for data on the
time of the event and the time the employee began work so that employers,
employees and the government can obtain information on the role fatigue plays
in occupational injuries and illness. Both questions (i.e., on time of
event and time employee began work) must be included to conduct this
analysis. Thus, OSHA has included both fields on the final Form 301. In
addition, the form has been designed so that the employer can simply circle
the a.m. or p.m. designation. OSHA believes that this approach will provide
the simplest, least burdensome method for capturing these data, and that using
a 24 hour clock system would be cumbersome or confusing for most employers. Data fields for the name and phone number of the person completing the
form. Both the
former and proposed Incident Report forms included fields designed to obtain
information on the person who completed the form. The former OSHA 101 form
asked for the date of report, the name of the preparer, and that person's
official position. The proposed form would have carried forward the name and
title of the preparer and the date, and added the person's phone number. OSHA
received very little comment on these proposed data fields. The Ford Motor
Company (Ex. 15: 347) and the American Automobile Manufacturers Association
(Ex. 15: 409) both made the following comment: The
"Completed by" field could be modified to consolidate name and
title. This would be consistent with the manner in which most health care
professionals routinely sign their name. The
"Phone number required" item should refer to the medical
department's number or the general number of the establishment, and be
included with the establishment's name and address at the top of the form.
This would decrease the paperwork burden by allowing the use of a stamp or a
pre-typed format as opposed to completing a phone number on each OSHA Form
301. The
final OSHA Form 301 permits the employer to include the name and title in
either field, as long as the information is available. As to the phone
number, the employer may use whatever number is appropriate that would allow
a government representative accessing the data to contact the individual who
prepared the form. Case File number: The former OSHA 101 form did not include a method for linking the
OSHA 300 and 301 forms. Any linking had to be accomplished via the employee's
name, department, occupation, and the other information from the forms. OSHA
proposed to add a field to the OSHA 301 form that would use the same case
number as that on the OSHA 300 form, thus making it easier for employers,
employees and government representatives to match the data from the two
forms. Two commenters objected to the addition of such a case file number
(Exs. 15: 217, 334). The American Forest & Paper Association (AF&PA)
argued: Another
issue of concern to AF&PA is the requirement for a unique case or file
number on the Form 300 and Form 301 to facilitate cross-referencing between
the forms. We believe there is sufficient data (employee name, date of birth,
date of injury) on all existing state First Report of Injury forms to readily
cross-reference the First Report to the entry on the Form 300. A uniform
requirement for employers to create an indexing system would serve no useful
purpose. Furthermore, it would be unduly burdensome for many affected
companies except in those cases when there is a reason to maintain the
confidentiality of the affected employee's name (Ex. 15: 334). OSHA
continues to believe that easy linkage of the Forms 300 and 301 will be
beneficial to all users of these data. Thus, the final Form 301 contains a
space for the case file number. The file/case number is required on both
forms to allow persons reviewing the forms to match an individual OSHA Form
301 with a specific entry on the OSHA Form 300. Access by authorized employee
representatives to the information contained on the OSHA Form 301 is limited
to the information on the right side of the form (see § 1904.35(b)(2)(v)(B)
of the final rule). The case/file number is the data element that makes a
link to the OSHA Form 300 possible. OSHA believes that this requirement will
add very little burden to the recordkeeping process, because the OSHA Log has
always required a unique file or case number. The final Form 301 requirement
simply requires the employer to place the same number on the OSHA 301 form. Suggested
Fields Commenters
submitted suggestions for other data fields that they believed should be
included on the OSHA Form 301, as follows.
Summary The
final forms employers will use to keep the records of those occupational
injuries and illnesses required by the final rule to be recorded have been
revised to reflect the changes made to the final rule, the record evidence
gathered in the course of this rulemaking, and a number of changes designed
to simplify recordkeeping for employers. In addition, the forms have been
revised to facilitate the use of equivalent forms and employers' ability to
computerize their records. Subpart D. Other OSHA injury and illness recordkeeping requirements Subpart
D of the final rule contains all of the 29 CFR Part 1904 requirements for
keeping OSHA injury and illness records that do not actually pertain to
entering the injury and illness data on the forms. The nine sections of
Subpart D are: --
Section 1904.30, which contains the requirements for dealing with multiple
business establishments; --
Section 1904.31, which contains the requirements for determining which
employees' occupational injuries and illnesses must be recorded by the
employer; --
Section 1904.32, which requires the employer to prepare and post the annual
summary; --
Section 1904.33, which requires the employer to retain and update the injury
and illness records; --
Section 1904.34, which requires the employer to transfer the records if the
business changes owners; --
Section 1904.35, which includes requirements for employee involvement,
including employees' rights to access the OSHA injury and illness
information; --
Section 1904.36, which prohibits an employer from discriminating against
employees for exercising their rights under the Act; --
Section 1904.37, which sets out the state recordkeeping regulations in OSHA
approved State-Plan states; and --
Section 1904.38, which explains how an employer may seek a variance from the recordkeeping
rule. Section 1904.30 Multiple Establishments Section
1904.30 covers the procedures for recording injuries and illnesses occurring
in separate establishments operated by the same business. For many
businesses, these provisions are irrelevant because the business has only one
establishment. However, many businesses have two or more establishments, and
thus need to know how to apply the recordkeeping rule to multiple
establishments. In particular, this section applies to businesses where separate
work sites create confusion as to where injury and illness records should be
kept and when separate records must be kept for separate work locations, or
establishments. OSHA recognizes that the recordkeeping system must
accommodate operations of this type, and has adopted language in the final
rule to provide some flexibility for employers in the construction,
transportation, communications, electric and gas utility, and sanitary
services industries, as well as other employers with geographically dispersed
operations. The final rule provides, in part, that operations are not
considered separate establishments unless they continue to be in operation
for a year or more. This length-of-site-operation provision increases the
chances of discovering patterns of occupational injury and illness,
eliminates the burden of creating OSHA 300 Logs for transient work sites, and
ensures that useful records are generated for more permanent facilities. OSHA's
proposed rule defined an establishment as a single physical location that is
in operation for 60 calendar days or longer (61 FR 4059), but did not provide
specific provisions covering multiple establishments. In the final rule, the
definition of establishment is included in Subpart G, Definitions. The
basic requirement of § 1904.30(a) of this final rule states that employers
are required to keep separate OSHA 300 Logs for each establishment that is
expected to be in business for one year or longer. Paragraph 1904.30(b)(1)
states that for short-term establishments, i.e., those that will exist for
less than a year, employers are required to keep injury and illness records,
but are not required to keep separate OSHA 300 Logs. They may keep one OSHA
300 Log covering all short-term establishments, or may include the short-term
establishment records in logs that cover individual company divisions or
geographic regions. For example, a construction company with multi-state
operations might have separate OSHA 300 Logs for each state to show the
injuries and illnesses of its employees engaged in short-term projects, as
well as a separate OSHA 300 Log for each construction project expected to
last for more than one year. If the same company had only one office location
and none of its projects lasted for more than one year, the company would
only be required to have one OSHA 300 Log. Paragraph
1904.30(b)(2) allows the employer to keep records for separate establishments
at the business' headquarters or another central location, provided that
information can be transmitted from the establishment to headquarters or the
central location within 7 days of the occurrence of the injury or illness,
and provided that the employer is able to produce and send the OSHA records
to each establishment when § 1904.35 or § 1904.40 requires such transmission.
The sections of the final rule are consistent with the corresponding
provisions of the proposed rule. Paragraph
1904.30(b)(3) states that each employee must be linked, for recordkeeping
purposes, with one of the employer's establishments. Any injuries or
illnesses sustained by the employee must be recorded on his or her home
establishment's OSHA 300 Log, or on a general OSHA 300 Log for short-term
establishments. This provision ensures that all employees are included in a
company's records. If the establishment is in an industry classification
partially exempted under § 1904.2 of the final rule, records are not
required. Under paragraph 1904.30(b)(4), if an employee is injured or made
ill while visiting or working at another of the employer's establishments,
then the injury or illness must be recorded on the 300 Log of the
establishment at which the injury or illness occurred. How
Long Must an Establishment Exist to Have a Separate OSHA Log As
previously stated, the final rule provides that an establishment must be one
that is expected to exist for a year or longer before a separate OSHA log is
required. Employers are permitted to keep separate OSHA logs for shorter term
establishments if they wish to do so, but the rule does not require them to
do so. This is a change from the proposed rule, which would have required an
establishment to be in operation for 60 days to be considered an
"establishment" for recordkeeping purposes. The proposed 60-day
threshold would have changed the definition of "establishment" used
in OSHA's former recordkeeping rule, because that rule included a
one-year-in-operation threshold for defining a fixed establishment required
to keep a separate OSHA Log (Ex. 2, p. 21). The effect of the proposed change
in the threshold would have been to increase the number of short-duration
operations required to maintain separate injury and illnesses records. The
majority of the comments OSHA received on this issue opposed the decrease in
the duration of the threshold from one year to 60 calendar days, primarily
because commenters felt that requiring temporary facilities to maintain
records would be burdensome, costly and would not increase the utility of the
records (see, e.g., Exs. 21, 15: 21, 43, 78, 116, 122, 123, 145, 170,
199, 213, 225, 254, 272, 288, 303, 304, 305, 308, 338, 346, 349, 350, 356,
358, 359, 363, 364, 375, 389, 392, 404, 412, 413, 423, 424, 433, 437, 443,
475). For example, the Associated Builders and Contractors, Inc. (ABC): [d]isagrees
that sites in existence for as little as 60 days need separate injury and
illness records. The redefinition of "establishment" will cause
enormous problems for subcontractors in a variety of construction industries.
Even employers with small workforces could be on the site of several projects
at any one time, and in the course of the year could have sent crews to
hundreds of sites. Though they may be on such sites for only brief periods of
time, they will be required under this proposal to create separate logs for
each site, increasing greatly their paperwork requirements without increasing
the amount of information available to their employees (Ex. 15: 412). In
addition, many of these commenters argued that a 60-day threshold would be
especially burdensome because it would capture small work sites where posting
of the annual summary or mailing the summary to employees would make little
sense because so few cases would be captured on each Log. The majority of
these commenters suggested that OSHA retain the former one-year duration
threshold in the definition of establishment (see, e.g., Exs. 15: 78,
123, 225, 254, 305, 356, 389, 404). Other
commenters expressed concern that the proposed 60-day threshold would create
an unreasonable burden on employers in service industries like
telecommunications and other utilities, whose employees typically report to a
fixed location, such as a service center or garage, but perform tasks at
transient locations that remain in existence for more than 60 days. These
commenters felt that classifying such locations as "establishments"
and creating thousands of new OSHA Logs, would have "no benefit to
anyone" (Ex. 15: 199) (see also Exs. 15: 65, 170, 213, 218, 332,
336, 409, 424). In
contrast, commenters who supported the 60-day threshold worried that injuries
and illnesses occurring at transient locations would never be accounted for
without such a provision (see, e.g., Exs. 15: 9, 133, 310, 369, 425).
Some urged OSHA to adopt an even shorter time-in-operation threshold (see, e.g.,
Exs. 15: 369, 418, 429). For example, the International Brotherhood of
Teamsters (IBT) stated that they "[w]ould strongly support reducing the
requirement to thirty days to cover many low level housing construction
sites, and transient operations, similar to mobile amusement parks" (Ex.
15: 369). The AFL-CIO agreed: "* * * the 60-day time period is still too
long. We believe that to truly capture a majority of these transient work
sites, a 30-day time period would be more realistic. A 30-day time period as
the trigger would capture construction activities such as trenching, roofing,
and painting projects which will continue to be missed if a 60-day time
period is used" (Ex. 15: 418). OSHA agrees that under the proposed
provisions there was a potential for injuries and illnesses to be missed at
short term establishments and for employees who did not report to fixed
establishments. Therefore, §§ 1904.30(b)(1) and (b)(3) have been added to
make it clear that records (but not a separate log) must be kept for
short-term establishments lasting less than one year, and that each employee
must be linked to an establishment. The
United Parcel Service (UPS) recommended that OSHA craft its rule to coincide
with a company's personnel records system, stating "[t]he unit for which
an employer maintains personnel records is presumptively appropriate and
efficient; accordingly, OSHA should not mandate a rule that conflicts with a
company's current personnel units policy" (Ex. 15: 424). OSHA recognizes
that employers would prefer OSHA to allow companies to keep records in any
way they choose. However, OSHA believes that allowing each company to decide
how and in what format to keep injury and illness records would erode the
value of the injury and illness records in describing the safety and health
experience of individual workplaces and across different workplaces and
industries. OSHA has therefore decided not to adopt this approach in the
final rule, but to continue its longstanding requirement requiring records to
be kept by establishment. OSHA
has reviewed all of the comments on this issue and has responded by deleting
any reference to a time-in-operation threshold in the definition of
establishment but specifying a one-year threshold in section 1904.30(a) of
the final rule. OSHA finds, based on the record evidence, that the one-year
threshold will create useful records for stable establishments without
imposing an unnecessary burden on the many establishments that remain in
existence for only a few months. Centralized
Recordkeeping As
previously stated, the proposed rule did not include a specific section
covering multiple establishments. The proposal did require that records for
employees not reporting to any single establishment on a regular basis should
be kept at each transient work site, or at an established central location,
provided that records could be obtained within 4 hours if requested as
proposed. Most
commenters supported provisions that would allow the employer to keep records
at a centralized location (see, e.g., Exs. 20, 21, 15: 9, 38, 48, 136,
137, 141, 154, 173, 203, 213, 224, 234, 235, 254, 260, 262, 265, 266, 272,
277, 278, 288, 303, 321, 336, 350, 367, 373, 375, 401, 409). Many, however,
disagreed with the requirement that records be produced within 4 hours if
requested by an authorized government official. Those comments are discussed
in the preamble for § 1904.40, Providing records to government
representatives. The only other concern commenters expressed about
centralized recordkeeping was that centralized records, like computerized
records, would make it more difficult for employees to access the records
(see, e.g., Exs. 15:379, 380, 418, 438). OSHA
does not believe that centralization of the records will compromise timely
employee or government representative access to the records. To ensure that
this is the case, centralization under § 1904.30(b)(2) is allowed only if the
employer can produce copies of the forms when access to them is needed by a
government representative, an employee or former employee, or an employee
representative, as required by §§ 1904.35 and 40. Recording
Injuries and Illnesses Where They Occur Proposed
section 1904.7, Location of records, and section 1904.11, Access to records,
covered recordkeeping requirements for employees who report to one
establishment but are injured or made ill at other locations of the same
company. Specifically, these sections required that records for employees
reporting to a particular establishment but becoming ill or injured at
another establishment within the same company be kept at the establishment in
which they became injured or ill. This was derived from OSHA's longstanding
interpretation that employees' cases should be recorded where they occur, if
it is at a company establishment (April 24, 1992 letter of interpretation to
Valorie A. Ferrara of Public Service Electric and Gas Company). Several
commenters objected to the proposed requirement that an employee's injury or
illness be recorded on the log of the establishment where the injury
occurred, rather than on the log of the establishment they normally report to
(see, e.g., Exs.15: 60, 107, 146, 184, 199, 200, 232, 242, 263, 269,
270, 329, 335, 343, 356, 375, 377). The comments of the B.F. Goodrich Company
(Ex. 15: 146) are representative: [t]he
requirement for a company to log a visiting employee's injury or illness on
the log of the company establishment that they are visiting rather than on
the log of their normal work establishment, is not consistent with the data
collection process. As proposed, the rule requires the facility to record the
injury or illness and not the hours worked by the visiting employee. These
individuals would not normally be counted in the number of employees at the
visited site nor in the manhours worked at that site. Recording of cases from
visiting employees would improperly skew the incidence rates of both
facilities. This approach is particularly inappropriate in the case of an
illness, since the case may be a result of accumulated exposures which have
nothing to do with the site visited during the onset of the illness.
Alternately, an injury or illness could manifest after the visitor leaves the
facility. OSHA
disagrees with these commenters about where the injuries and illnesses should
be recorded. For the vast majority of cases, the place where the injury or
illness occurred is the most useful recording location. The events or
exposures that caused the case are most likely to be present at that
location, so the data are most useful for analysis of that location's
records. If the case is recorded at the employee's home base, the injury or
illness data have been disconnected from the place where the case occurred,
and where analysis of the data may help reveal a workplace hazard. Therefore,
OSHA finds that it is most useful to record the injury or illness at the
location where the case occurred. Of course, if the injury or illness occurs
at another employer's workplace, or while the employee is in transit, the
case would be recorded on the OSHA 300 Log of the employee's home
establishment. For
cases of illness, two types of cases must be considered. The first is the
case of an illness condition caused by an acute, or short term workplace
exposure, such as skin rashes, respiratory ailments, and heat disorders.
These illnesses generally manifest themselves quickly and can be linked to
the workplace where they occur, which is no different than most injury cases.
For illnesses that are caused by long-term exposures or which have long
latency periods, the illness will most likely be detected during a visit to a
physician or other health care professional, and the employee is most likely
to report it to his or her supervisor at the home work location. Recording
these injuries and illnesses could potentially present a problem with
incidence rate calculations. In many situations, visiting employees are a
minority of the workforce, their hours worked are relatively inconsequential,
and rates are thus unaffected to any meaningful extent. However, if an
employer relies on visiting labor to perform a larger amount of the work, rates
could be affected. In these situations, the hours of these personnel should
be added to the establishment's hours of work for rate calculation purposes. Section 1904.31 Covered employees Final
Rule Requirements and Legal Background Section
1904.31 requires employers to record the injuries and illnesses of all their
employees, whether classified as labor, executive, hourly, salaried,
part-time, seasonal, or migrant workers. The section also requires the
employer to record the injuries and illnesses of employees they supervise on
a day-to-day basis, even if these workers are not carried on the employer's
payroll. Implementing
these requirements requires an understanding of the Act's definitions of
"employer" and "employee." The statute defines
"employer," in relevant part, to mean "a person engaged in a
business affecting interstate commerce who has employees." 29 U.S.C. 652
(5). The term "person" includes "one or more individuals,
partnerships, associations, corporations, business trusts, legal representatives,
or any organized group of persons." 29 U.S.C. 652 (4). The term
"employee" means "an employee of an employer who is employed
in a business of his employer which affects interstate commerce." 29
U.S.C. 652(6). Thus, any individual or entity having an employment
relationship with even one worker is an employer for purposes of this final
rule, and must fulfill the recording requirements for each employee. The
application of the coverage principles in this section presents few issues
for employees who are carried on the employer's payroll, because the
employment relationship is usually well established in these cases. However,
issues sometimes arise when an individual or entity enters into a temporary
relationship with a worker. The first question is whether the worker is an
employee of the hiring party. If an employment relationship exists, even if
temporary in duration, the employee's injuries and illnesses must be recorded
on the OSHA 300 Log and 301 form. The second question, arising in connection
with employees provided by a temporary help service or leasing agency, is
which employer -- the host firm or the temporary help service -- is
responsible for recordkeeping. Whether
an employment relationship exists under the Act is determined in accordance
with established common law principles of agency. At common law, a
self-employed "independent contractor" is not an employee;
therefore, injuries and illnesses sustained by independent contractors are
not recordable under the final Recordkeeping rule. To determine whether a
hired party is an employee or an independent contractor under the common law
test, the hiring party must consider a number of factors, including the
degree of control the hiring party asserts over the manner in which the work
is done, and the degree of skill and independent judgment the hired party is
expected to apply. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938,
942 (9th Cir. 1994). Other
individuals, besides independent contractors, who are not considered to be
employees under the OSH Act are unpaid volunteers, sole proprietors,
partners, family members of farm employers, and domestic workers in a
residential setting. See 29 CFR § 1975.4(b)(2) and § 1975.6 for a discussion
of the latter two categories of workers. As is the case with independent
contractors, no employment relationship exists between these individuals and
the hiring party, and consequently, no recording obligation arises. A
related coverage question sometimes arises when an employer obtains labor
from a temporary help service, employee leasing firm or other personnel
supply service. Frequently the temporary workers are on the payroll of the
temporary help service or leasing firm, but are under the day-to-day
supervision of the host party. In these cases, Section 1904.31 places the
recordkeeping obligation upon the host, or utilizing, employer. The final
rule's allocation of recordkeeping responsibility to the host employer in
these circumstances is consistent with the Act for several reasons. First,
the host employer's exercise of day-to-day supervision of the temporary
workers and its control over the work environment demonstrates a high degree
of control over the temporary workers consistent with the presence of an
employment relationship at common law. See Loomis Cabinet Co., 20 F.3d
at 942. Thus, the temporary workers will ordinarily be the employees of the
party exercising day-to-day control over them, and the supervising party will
be their employer. Even
if daily supervision is not sufficient alone to establish that the host party
is the employer of the temporary workers, there are other reasons for the
final rule's allocation of recordkeeping responsibility. Under the OSH Act,
an employer's duties and responsibilities are not limited only to his own
employees. Cf. Universal Constr. Co. v. OSHRC, 182 F.3d 726,
728-731 (10th Cir. 1999). Assuming that the host is an employer under the Act
(because it has an employment relationship with someone) it reasonably should
record the injuries of all employees, whether or not its own, that it
supervises on a daily basis. This follows because the supervising employer is
in the best position to obtain the necessary injury and illness information
due to its control over the worksite and its familiarity with the work tasks
and the work environment. As discussed further below, the final rule is
sensible and will likely result in more accurate and timely recordkeeping. The
Proposed Rule The
final rule's coverage rules are consistent with the basic principles embodied
in the former rule and in the proposal. The proposed rule would have
continued to require employers to record the injuries and illnesses of
employees over whose work they exert "day-to-day supervision" (61
FR 4058/3). OSHA proposed to codify this longstanding interpretation by
adding a definition of "employee" together with a note explaining
its application to Part 1904 recordkeeping. The proposed definition restated
the definition of employee in the OSH Act. It then explained that, for
recordkeeping purposes, an employer should consider as its employees any
persons who are supervised on a day-to-day basis at the establishment. The
proposal noted that this was the test regardless of whether the persons were
labeled as "independent contractors," "migrant workers,"
or workers provided by a temporary help service. The
proposal further explained that day-to-day supervision occurs "when, in
addition to specifying the output, product or result to be accomplished by
the person's work, the employer supervises the details, means, methods and
processes by which the work is to be accomplished" (61 FR 4059/1). OSHA
also noted that other classes of workers would not be covered because they
were not considered employees, either as defined in the OSH Act or as set
forth in regulatory interpretations. These included sole proprietors,
partners, family members of farm employers, and domestic workers in a
residential setting. Response
To the Proposal A
number of commenters agreed with OSHA's approach to differentiate between
employees and true independent contractors, and to require employers to keep
records for employees they supervise on a day-to-day basis (see, e.g.,
Exs. 15: 61, 65, 205, 305, 322, 333, 346, 348, 351, 369, 390, 429). The
National Association of Manufacturers (NAM) stated: [f]or
purposes of recordkeeping, OSHA has consistently taken the position that the
term "employee" includes all personnel who are supervised on a
day-to-day basis by the employer using their services (not only with respect
to the result to be achieved, but also the means, methods and processes by
which the work is to be accomplished). While this is a fact-intensive
determination that must be made on a case-by-case basis, we commend the
Agency for attempting to clarify the matter by making that approach an
explicit part of the rule, presumably for purposes of both recordkeeping and
records access (Ex. 15: 305). The
National Association of Temporary Staffing Services (NATSS)) supported: [c]ontinuation
of "utilizing employer" rule for maintaining records for temporary
employees. Temporary help and staffing service firms recruit individuals with
a broad range of training, education and skills, and then assign them to work
at customer locations on a variety of assignments and projects. The
fundamental nature of the service relationship is such that while staffing
service firms are the general employers of their workers and assume a broad
range of employer responsibilities, those responsibilities generally do not
include direct supervision of the employees at the worksite. Hence, staffing
firms have a limited ability to affect conditions at the worksite. In
recognition of the above, OSHA's long-standing policy has been to require the
worksite employer, not the staffing firm, to maintain illness and injury
records of temporary workers supervised by the worksite employer. The
proposed rules continue this policy. In a special "note" in section
1904.3, "employee" for record keeping purposes is defined to
include temporary workers "when they are supervised on a day-to-day
basis by the employer utilizing their services." Under this definition,
the worksite employer, not the staffing firm, would be required to maintain
records for temporary employees supplied by a staffing firm, provided they
are supervised by the worksite employer. As stated in the background section
of the proposed rule, "this is consistent with case law and the
interpretation currently used by OSHA" (61 F.R. 4034). NATSS strongly
supports this proposed definition. (Ex. 15: 333) A
number of commenters opposed OSHA's proposed approach on this issue (see, e.g.,
Exs. 15: 9, 23, 26, 64, 67, 82, 92, 119, 154, 159, 161, 184, 185, 198, 203,
204, 225, 259, 287, 297, 299, 312, 335, 336, 338, 341, 356, 363, 364, 370,
404, 423, 424, 427, 431, 437, 443). Several of these commenters thought that
including temporary employees from temporary services, independent
contractors and other leased personnel within the definition of employee
would impose new burdens on employers (see, e.g., Exs. 15: 35, 67,
356, 423, 437). However, the proposal did not alter the long-standing
meanings of the terms employee, employer or employment relationship. The
day-to-day supervision test for identifying the employer who is responsible
for compliance with Part 1904 is a continuation of OSHA's former policy, and
is consistent with the common law test. The comments indicate that many
employers are not aware that they need to keep records for leased workers,
temporary workers, and workers who are inaccurately labeled "independent
contractors" but are in fact employees. However, these workers are
employees under both the former rule and the final rule. Incorporating these
requirements into the regulatory text can only help to improve the
consistency of the data by clarifying the employer's responsibilities. Several
commenters erroneously believed that they might need to keep records for all
employees of independent contractors performing work in their establishment
(see, e.g., Exs. 15: 161, 203, 312). The Battery Council International
remarked: [i]t
is unclear how this clarification would apply to employers in the battery
industry who hire independent contractors to perform construction and other
activities on their manufacturing facilities. Often times, battery
manufacturers will provide the contractors with an orientation to the
facility (which includes the facility's safety and health rules and location
of MSDSs) [material safety data sheets], and monitor the work of the
contractor to ensure that work contracted for has been completed, but do not
otherwise supervise the details, means, methods and processes by which the
work is to be accomplished. In these relationships, the contractors certify
to the battery manufacturers that they comply with all OSHA requirements
including training, which must be completed as part of the work contract. If
the intent of the proposed clarification is to not require the reporting of
injuries and illnesses to independent contractors under similar conditions as
described above, then BCI supports this concept and requests further
clarification on this issue. BCI will oppose, however, any attempt by OSHA to
require the reporting of injuries or illnesses that occur to
"independent contractors" where the employer has not otherwise
supervised the details, means, methods and processes by which the work was
accomplished (Ex. 15: 161). The
International Dairy Foods Association (IDFA) was concerned that if a dairy
processing facility hired an electrical contractor to install new lighting
and the electrical contractor's employee were injured while installing the
lighting, the dairy might have to record the incident in its Part 1904
records (Ex. 15: 203). The
1904 rule does not require an employer to record injuries and illnesses that
occur to workers supervised by independent contractors. However, the label
assigned to a worker is immaterial if it does not reflect the economic
realities of the relationship. For example, an employment contract that
labels a hired worker as an independent contractor will have no legal
significance for Part 1904 purposes if in fact the hiring employer exercises
day-to-day supervision over that worker, including directing the worker as to
the manner in which the details of the work are to be performed. If the
contractor actually provides day-to-day supervision for the employee, then
the contractor is responsible for compliance with Part 1904 as to that
employee. In the IDFA example, unless the dairy exercised supervisory control
over the time and manner of the electrician's work, the dairy would not be
considered the electrician's employer and would not be required to record the
incident. Some
commenters argued that the injury and illness statistics would be more
accurate or useful if the payroll employer recorded the injuries and
illnesses, regardless of which employer controlled the work or the hazard
(see, e.g., Exs. 15: 9, 26, 92, 161, 198, 259, 287, 297, 299, 333,
341, 356, 364, 443). The Sandoz Corporation stated that "[t]he control
and responsibility for reporting these injuries should be with the employer,
i.e. the establishment that pays the employee. This simplifies the control
and reporting. It also allows a company that utilizes temporary or contract
services to look at the OSHA record of the supplier as part of the purchasing
decision and thus put pressure on the supplier for better safety performance,
thus using market forces to improve safety" (Ex. 15: 299). The Battery
Council International added "[r]equiring employers to record the
injuries and illnesses of independent contractors under such circumstances is
unfair and will result in the over recording of injuries and illnesses by the
battery industry. This will result in more OSHA inspections on the lead
battery industry, which will in turn impose additional costs and burdens on
BCI members" (Ex. 15: 161). The Fertilizer Institute stated
"[a]dopting compensation as the basis for determining the employer/
employee relationship results in simplification that is not afforded when one
must look at day-to-day supervision" (Ex. 15: 154). A
few commenters recommended that the employer responsible for workers'
compensation insurance also be required to record the injuries and illnesses
(Ex. 15: 204, 225, 336, 364). The American Gas Association (Ex. 15: 225)
stated that OSHA should: [s]trive
to parallel Workers' Compensation law. The employer may have supervision of
some types of temporary workers, e.g., daily office workers. However,
the employer may have no control over a crew of construction contractors. In
this case, the employer does not supervise the details, means, methods and
processes by which the work accomplished. The definition of employee, along
with the note to the definition proposed by OSHA requires a subjective
determination to be made. 61 Fed. Reg. at 4058. We recommend OSHA follow a
more objective test. The responsibility of reporting injuries and illnesses
should turn on the fact of who provides the Workers' Compensation insurance,
not necessarily daily supervision. This would then be an objective, rather
than subjective test, less likely open to interpretation and mistakes. OSHA
has rejected the suggestions that either the payroll or workers' compensation
employer keep the OSHA 1904 records. The Agency believes that in the majority
of circumstances the payroll employer will also be the workers' compensation
employer and there is no difference in the two suggestions. Temporary help
services typically provide the workers' compensation insurance coverage for
the employees they provide to other employers. Therefore, our reasons for
rejecting these suggestions are the same. OSHA agrees that there are good
arguments for both scenarios: 1. Including injuries and illnesses in the
records of the leasing employer (the payroll or workers' compensation
employer and 2. For including these cases in the records of the controlling
employer. Requiring the payroll or workers' compensation employer to keep the
OSHA records would certainly be a simple and objective method. There would be
no doubt about who keeps the records. However, including the cases in the
records of the temporary help agency erodes the value of the injury and
illness records for statistical purposes, for administering safety and health
programs at individual worksites, and for government inspectors conducting
safety and health inspections or consultations. The benefits of
simplification and clarity do not outweigh the potential damage to the
informational value of the records, for the reasons discussed below. First,
the employer who controls the workers and the work environment is in the best
position to learn about all the injuries and illnesses that occur to those
workers. Second, when the data are collected for enforcement and research use
and for priority setting, the injury and illness data are clearly linked to
the industrial setting that gave rise to them. Most important, transferring
the recording/reporting function from the supervising employer to the leasing
firm would undermine rather than facilitate one of the most important goals
of Part 1904 -- to assure that work-related injury and illness information
gets to the employer who can use it to abate work-related hazards. If OSHA
were to shift the recordkeeping responsibility from the controlling employer
to the leasing firm, the records would not be readily available to the
employer who can make best use of them. OSHA would need to require the
leasing firm to provide the controlling employer with copies of the injury
and illness logs and other reports to meet this purpose. This would be both
burdensome and duplicative. Requiring
the controlling (host) employer to record injuries and illnesses for
employees that they control has several advantages. First, it assigns the
injuries and illnesses to the individual workplace with the greatest amount
of control over the working conditions that led to the worker's injury or
illness. Although both the host employer and the payroll employer have safety
and health responsibilities, the host employer generally has more control
over the safety and health conditions where the employee is working. To the
extent that the records connect the occupational injuries and illnesses to
the working conditions in a given workplace, the host employer must include
these cases to provide a full and accurate safety and health record for that
workplace. If
this policy were not in place, industry-wide statistics would be skewed. Two
workplaces with identical numbers of injuries and illnesses would report
different statistics if one relied on temporary help services to provide
workers, while the other did not. Under OSHA's policy, when records are
collected to generate national injury and illness statistics, the cases are
properly assigned to the industry where they occurred. Assigning these
injuries and illnesses to temporary help services would not accurately
reflect the type of workplace that produced the injuries and illnesses. It
would also be more difficult to compare industries. To illustrate this point,
consider a hypothetical industry that relies on temporary help services to
provide 10% of its labor force. Assuming that the temporary workers
experience workplace injury and illness at the same rate as traditional
employees, the Nation's statistics would underrepresent that industry's
injury and illness numbers by 10%. If another industry only used temporary
help services for 1% of the labor force, its statistics would be closer to
the real number, but comparisons to the 10% industry would be highly suspect. The
policy also makes it easier to use an industry's data to measure differences
that occur in that industry over time. Over the last 20 years, the business
community has relied increasingly on workers from temporary help services,
employee leasing companies, and other temporary employees. If an industry
sector as a whole changed its practices to include either more or fewer temporary
workers over time, comparisons of the statistics over several years might
show trends in injury and illness experience that simply reflected changing
business practices rather than real changes in safety and health conditions. Some
commenters objected to this aspect of the proposal because they thought it
would require both the personnel leasing firm and the host employer to record
injuries and illnesses. Double recording would lead to inaccurate statistics
when both employers reported their data to BLS (see, e.g., Exs. 15: 9,
26, 92, 198, 259, 287, 297, 333, 341, 356, 364, 443). The National
Association of Temporary Staffing Services Stated: [i]f
the exemption is not retained in the case of SIC 7363 [Help Supply Services]
employers, it would be especially important for the final rules to expressly
provide * * * that there is no intent to impose a dual reporting requirement.
At least one state OSH office already has construed the proposed lifting of
the partial exemption as creating an obligation on the part of staffing firms
to maintain records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent with the
intent of the proposed rule and should be clarified (Ex. 15: 333). The
Society of the Plastics Industry added: [b]ecause
statistics are required to be collected for several years, it would take a
significant effort to contact several independent companies on a continual
basis to obtain such information. This would only result in a serious
duplication of records, as both the host employer and the temporary leasing
employer record the case. This will increase the recordkeeping burden for
both the employer and those independent companies hired for a specific job by
that employer (Ex. 15: 364). OSHA
agrees with these commenters that there is a potential for double counting of
injuries and illnesses for workers provided by a personnel supply service. We
do not intend to require both employers to record each injury or illness. To
solve this problem, the rule, at § 1904.31(b)(4), specifically states that
both employers are not required to record the case, and that the employers
may coordinate their efforts so that each case is recorded only once -- by
the employer who provides day-to-day supervision. When the employers involved
choose to work with each other, or when both employers understand the Part
1904 regulations as to who is required to record the cases and who is not,
there will not be duplicative recording and reporting. This policy will not
completely eliminate double recording of these injuries and illnesses, but it
provides a mechanism for minimizing the error in the BLS statistics. OSHA
believes that many employers already share information about these injuries
and illnesses to help each other with their own respective safety and health
responsibilities. For example, personnel service employers need information
to process workers' compensation claims and to determine how well their
safety and health efforts are working, especially those involving training
and the use of personal protective equipment. The host employer needs
information on conditions in the workplace that may have caused the injuries
or illnesses. Many
commenters objected to the requirement that the employer who controls the
work environment record injuries and illnesses of temporary workers because
that employer does not have adequate information to record the cases
accurately (see, e.g., Exs. 15: 9, 23, 184, 341, 363, 364, 370). These
commenters contended that temporary workers supplied by personnel agencies
may not have been at any given assignment long enough for the controlling
employer to count days away from work accurately or to make informed
judgments about the recordability of ongoing or recurring cases. The comments
also contended that the controlling employer may have difficulty judging
whether an injury or illness is related to that employer's work environment,
to other places of employment, or is totally non-work related. These
drawbacks in turn affect the recording employer's ability to certify to the
completeness and accuracy of the annual summary of the Log. U.S. West, Inc.
(Ex. 15: 184) remarked: [e]mployers
should not be responsible for recordkeeping involving independent
contractors, workers from temporary agencies, etc. A major reason for this
would be the difficulties presented when trying to track such individuals for
injuries/illnesses that have long periods of days away from work. In
addition, it is often difficult to assign work relatedness for cases to a
specific employer -- an example would be upper extremity repetitive motion
disorders for an individual from a temporary agency that works for several
different employers in the course of a week or month. To avoid such problems,
recordkeeping should be the responsibility of the individual's actual
employer. OSHA
agrees with these commenters that recording work-related injuries and
illnesses for temporary, leased employees will sometimes present these
difficulties. However, the solution is not, as some commenters urge, to
require the personnel leasing agency to assume responsibility for Part 1904
recording and reporting. The personnel leasing firm will not necessarily have
better information than the host employer about the worker's exposures or
accidents in previous assignments, previously recorded injuries or illnesses,
or the aftermath of an injury or illness. And the personnel leasing firm will
certainly have less knowledge of and control over the work environment that
may have caused, contributed to, or significantly aggravated an injury or
illness. As described above, the two employers have shared responsibilities
and may share information when there is a need to do so. If
Part 1904 records are inaccurate due to lack of reasonably reliable data
about leased employees, there are ways for OSHA to address the problem.
First, the OSH Act does not impose absolutely strict liability on employers.
The controlling employer must make reasonable efforts to acquire necessary
information in order to satisfy Part 1904, but may be able to show that it is
not feasible to comply with an OSHA recordkeeping requirement. If entries for
temporary workers are deficient in some way, the employer can always defend
against citation by showing that it made the efforts that a reasonable
employer would have made under the particular circumstances to obtain more
complete or accurate data. A
few commenters suggested that OSHA should link the recording requirement to
the duration of time that the contract or temporary employee works at a
specific location (see, e.g., Exs. 15: 185, 259, 341, 364). The
National Wholesale Druggists Association (NWDA) believed that: [t]here
should be a length-of-employment delineation to determine whether a temporary
or contract employee illness or injury should be included in the OSHA log.
OSHA should set a length of time that the contract or temporary employee must
work in a location before requirements for OSHA log reporting are triggered.
By setting a length of employment standard, OSHA will not only eliminate the
possibility of duplicative reporting of injuries and illnesses but will also
eliminate the reporting of those short-term temporary employee assignments
that may be covered by the temporary agency (Ex. 15: 185). The
Society of the Plastics Industry (SPI) recommended that the controlling firm
should only keep records for permanently leased workers, stating "[f]or
temporary employees, the employer who pays an employee (with the presumption
that this is for whom they work) should be required to keep the records. For
permanently assigned, leased employees, SPI agrees that such cases should be
recorded by the leasing employer" (Ex. 15: 364). The Iowa Health Care
Association asked whether a temporary nurse's aide who works in a facility
for seven days to cover a vacationing permanent employee would be considered
to be under the day-to-day supervision of the host facility (Ex. 15: 259). OSHA
has decided not to base recording obligations on the temporary employee's
length of employment. Recording the injuries and illnesses of some temporary
employees and not others would not improve the value or accuracy of the
statistics, and would make the system even more inconsistent and complex. In
OSHA's view, the duration of the relationship is much less important than the
element of control. In the example of the temporary nurse's aide, for OSHA
recordkeeping purposes the worker would be considered an employee of the
facility for the days he or she works under the day-to-day supervision of the
host facility. Several
commenters questioned whether or not temporary workers would be included in
the total number of employees of that employer (see, e.g., Exs. 15:
67, 356, 375, 437). The number of employees is used in two separate areas of
the recordkeeping system. The number of employees is used to determine the
exemption for smaller employers, and is entered on the annual summary of
occupational injuries and illnesses. The Small Business Administration
expressed concern over whether counting these workers as employees would affect
the exemption for smaller employers, stating "[t]he definition of
"employee" goes beyond the statutory intent * * * Small businesses
would not only have new obligations for coverage, but this methodology for
counting employees would impact the opportunity for an exemption under this
standard" (Exs. 15: 67, 437). The American Petroleum Institute (API) was
concerned about how the employee count affects the way that the host employer
completes the annual summary, particularly the entries for hours worked by
all employees and the average number of employees: [u]sing
the OSHA-specified approach for determining the number of employees and hours
worked, particularly for temporary employees and/or smaller establishments,
is not often feasible. Assumption (1) [that the employer already has this
data] is not true for temporary employees. Their hours worked are maintained
by their contract employers. Host employers have dollar costs paid to each
contractor employer. Therefore, getting employee counts and hours worked for
temporaries requires making assumptions and estimating (Ex. 15: 375). Because
OSHA is using the common law concepts to determine which workers are to be
included in the records, a worker who is covered in terms of recording an
injury or illness is also covered for counting purposes and for the annual
summary. If a given worker is an employee under the common law test, he or
she is an employee for all OSHA recordkeeping purposes. Therefore, an
employer must consider all of its employees when determining its eligibility
for the small employer exemption, and must provide reasonable estimates for
hours worked and average employment on the annual summary. OSHA has included
instructions on the back of the annual summary to help with these
calculations. The
Texas Chemical Council argued that supervising employers should not have to
record injuries or illnesses of agency-supplied workers unless the
supervising employer has authority to hold these workers accountable for
safety performance (Ex. 15: 159). According to this commenter, most temporary
agencies limit the contracting employer to following the agencies' policies
for corrective action for unacceptable performance. OSHA would simply point
out that this is a matter within the contract arrangements between the two
employers, and that OSHA intervention in this area is not necessary or
appropriate. In any event, we believe that this should not determine who
records occupational injuries and illnesses. The
Phibro-Tech company asked "[i]f the facility is now responsible for
tracking these injuries on their Form 300, will this affect the Worker's
Compensation liability?" (Ex. 15: 35). Tracking injuries and illnesses
for OSHA purposes does not affect an employer's workers' compensation
liability. An employer's liability for workers' compensation is a separate
matter that is covered by state law. Employers who maintain workers'
compensation coverage will be responsible for injuries and illnesses
regardless of which employer records them for OSHA purposes. Bell
Atlantic Network Services asked "[a]re contract employee OSHA recordable
injury/illness incidents to be recorded on the same OSHA 300 log as
employer's full-time employees? Are they to be identified as
"Contract/Temporary" employees on the OSHA 300 Log, i.e., under the
column E -- Job Title?" (Ex. 15: 218). OSHA's view is that a given
establishment should have one OSHA Log and only one Log. Injuries and
illnesses for all the employees at the establishment are entered into that
record to create a single summary at the end of the year. OSHA does not
require temporary workers or any other types of workers to be identified with
special titles in the job title column, but also does not prohibit the
practice. This column is used to list the occupation of the injured or ill
worker, such as laborer, machine operator, or nursing aide. However, OSHA
does encourage employers to analyze their injury and illness data to improve
safety and health at the establishment. In some cases, identifying temporary
or contract workers may help an employer to manage safety and health more
effectively. Thus an employer may supplement the OSHA Log to identify
temporary or contract workers, although the rule does not require it. OSHA
received two suggestions that would provide an OSHA inspector with injury and
illness data for temporary workers without putting their injuries on the host
employer's OSHA 300 Log. The National Grain and Feed Association, Grain
Elevator and Processing Society, and National Oilseed Processors Association
jointly recommended: [e]mployers
with employees who work under contract at a site other than the employer's
should be required to provide a copy of the appropriate first report of
injury or OSHA 301 to the site controlling employer. The site controlling
employer can then maintain a file of Form 301's to facilitate OSHA's
evaluation of workplace hazards (Ex. 15: 119). The
Douglas Battery Manufacturing (Ex. 15: 82) company suggested the following
alternative: [a]n
option that would allow an employer of temporary workers to determine the
incident rate of the temporaries, would be to require the temporary agency/
contractor to forward a copy of its OSHA log for workers at a particular
facility, to that facility by February of the next calendar year. The names
and other personal identifiers of the temporary/contract workers could be
removed prior to submittal but the data would be available on site for agency
inspection purposes. OSHA
believes that neither of these alternatives would be an acceptable substitute
for completing the 300 Log and 301 form for injured workers. The information
would not be entered into the annual summary, so the establishment's
statistics would not be complete. While these options would create a method
(although a cumbersome method) for providing the information to a government
inspector, the data would not be collected for statistical purposes. Some
commenters asked OSHA about how they should deal with a variety of other
types of workers. The American Ambulance Association suggested that OSHA
"[s]pecifically exclude from the definition of employee, students who
are unpaid by the company/institution which is providing a clinical or
practice setting" (Ex. 15: 226). The Maine Department of Labor (Ex. 15:
41) asked the following question: [q]uestions
about how to report people such as Interns, Aspire (welfare) program
participants, prison release workers and volunteers are now being asked. A
clear definition needs to be established to account for all kinds of
employees. Our Public Sector law requires us to count all people who are
permitted to work. Maybe you don't want that inclusive a definition, but it
is something to consider. We had to come up with a specific definition of
volunteers to exclude sporadic volunteers (essentially those not working at a
specific place at a specific time on a regular basis). With some workplaces
utilizing volunteers and with welfare reform changes expected, you may want
to prepare for these questions now. These
workers should be evaluated just as any other worker. If a student or intern
is working as an unpaid volunteer, he or she would not be an employee under
the OSH Act and an injury or illness of that employee would not be entered
into the Part 1904 records. If the worker is receiving compensation for
services, and meets the common law test discussed earlier, then there is an
employer-employee relationship for the purposes of OSHA recordkeeping. The
employer in that relationship must evaluate any injury or illness at the
establishment and enter it into the records if it meets the recording
criteria. Section 1904.32 Annual Summary At
the end of each calendar year, section 1904.32 of the final rule requires
each covered employer to review his or her OSHA 300 Log for completeness and
accuracy and to prepare an Annual Summary of the OSHA 300 Log using the form
OSHA 300-A, Summary of Work-Related Injuries and Illnesses, or an equivalent
form. The summary must be certified for accuracy and completeness and be
posted in the workplace by February 1 of the year following the year covered
by the summary. The summary must remain posted until April 30 of the year in
which it was posted. Preparing
the Annual Summary requires four steps: reviewing the OSHA 300 Log, computing
and entering the summary information on the Form 300-A, certification, and
posting. First, the employer must review the Log as extensively as necessary
to make sure it is accurate and complete. Second, the employer must total the
columns on the Log; transfer them to the summary form; and enter the calendar
year covered, the name of the employer, the name and address of the
establishment, the average number of employees on the establishment's payroll
for the calendar year, and the total hours worked by the covered employees.
If there were no recordable cases at the establishment for the year covered,
the summary must nevertheless be completed by entering zeros in the total for
each column of the OSHA 300 Log. If a form other than the OSHA 300-A is used,
as permitted by paragraph 1904.29(b)(4), the alternate form must contain the
same information as the OSHA 300-A form and include identical statements
concerning employee access to the Log and Summary and employer penalties for
falsifying the document as are found on the OSHA 300-A form. Third,
the employer must certify to the accuracy and completeness of the Log and
Summary, using a two-step process. The person or persons who supervise the
preparation and maintenance of the Log and Summary (usually the person who
keeps the OSHA records) must sign the certification statement on the form,
based on their direct knowledge of the data on which it was based. Then, to
ensure greater awareness and accountability of the recordkeeping process, a
company executive, who may be an owner, a corporate officer, the highest
ranking official working at the establishment, or that person's immediate
supervisor, must also sign the form to certify to its accuracy and
completeness. Certification of the summary attests that the individual making
the certification has a reasonable belief, derived from his or her knowledge
of the process by which the information in the Log was reported and recorded,
that the Log and summary are "true" and "complete." Fourth,
the Summary must be posted no later than February 1 of the year following the
year covered in the Summary and remain posted until April 30 of that year in
a conspicuous place where notices are customarily posted. The employer must
ensure that the Summary is not defaced or altered during the 3 month posting
period. Changes from the former rule. Although the final rule's requirements for
preparing the Annual Summary are generally similar to those of the former
rule, the final rule incorporates four important changes that OSHA believes
will strengthen the recordkeeping process by ensuring greater completeness
and accuracy of the Log and Summary, providing employers and employees with
better information to understand and evaluate the injury and illness data on
the Annual Summary, and facilitating greater employer and employee awareness
of the recordkeeping process. 1. Company Executive Certification of the Annual Summary. The final rule carries forward
the proposed rule's requirement for certification by a higher ranking company
official, with minor revision. OSHA concludes that the company executive certification
process will ensure greater completeness and accuracy of the Summary by
raising accountability for OSHA recordkeeping to a higher managerial level
than existed under the former rule. OSHA believes that senior management
accountability is essential if the Log and Annual Summary are to be accurate
and complete. The integrity of the OSHA recordkeeping system, which is relied
on by the BLS for national injury and illness statistics, by OSHA and
employers to understand hazards in the workplaces, by employees to assist in
the identification and control of the hazards identified, and by safety and
health professionals everywhere to analyze trends, identify emerging hazards,
and develop solutions, is essential to these objectives. Because OSHA cannot
oversee the preparation of the Log and Summary at each establishment and
cannot audit more than a small sample of all covered employers' records, this
goal is accomplished by requiring employers or company executives to certify
the accuracy and completeness of the Log and Summary. The
company executive certification requirement imposes different obligations
depending on the structure of the company. If the company is a sole
proprietorship or partnership, the certification may be made by the owner. If
the company is a corporation, the certification may be made by a corporate
officer. For any management structure, the certification may be made by the
highest ranking company official working at the establishment covered by the
Log (for example, the plant manager or site supervisor), or the latter
official's supervisor (for example, a corporate or regional director who
works at a different establishment, such as company headquarters). The
company executive certification is intended to ensure that a high ranking
company official with responsibility for the recordkeeping activity and the
authority to ensure that the recordkeeping function is performed
appropriately has examined the records and has a reasonable belief, based on
his or her knowledge of that process, that the records are accurate and
complete. The
final rule does not specify how employers are to evaluate their recordkeeping
systems to ensure their accuracy and completeness or what steps an employer
must follow to certify the accuracy and completeness of the Log and Summary
with confidence. However, to be able to certify that one has a reasonable
belief that the records are complete and accurate would suggest, at a
minimum, that the certifier is familiar with OSHA's recordkeeping
requirements, and the company's recordkeeping practices and policies, has
read the Log and Summary, and has obtained assurance from the staff
responsible for maintaining the records (if the certifier does not personally
keep the records) that all of OSHA's requirements have been met and all
practices and policies followed. In most if not all cases, the certifier will
be familiar with the details of some of the injuries and illnesses that have
occurred at the establishment and will therefore be able to spot check the
OSHA 300 Log to see if those cases have been entered correctly. In many
cases, especially in small to medium establishments, the certifier will be
aware of all of the injuries and illnesses that have been reported at the
establishment and will thus be able to inspect the forms to make sure all of
the cases that should have been entered have in fact been recorded. The
certification required by the final rule may be made by signing and dating
the certification section of the OSHA 300-A form, which replaces the summary
portion of the former OSHA 200 form, or by signing and dating a separate
certification statement and appending it to the OSHA Form 300-A. A separate
certification statement must contain the identical penalty warnings and
employee access information as found on the OSHA Form 300-A. A separate
statement may be needed when the certifier works at another location and the
certification is mailed or faxed to the location where the Summary is posted. The
certification requirement modifies the certification provision of the former
rule (former paragraph 1904.5(c)), which required a certification of the
Annual Summary by the employer or an officer or employee who supervised the
preparation of the Log and Summary. The former rule required that individual
to sign and date the year-end summary on the OSHA Form 200 and to certify
that the summary was true and complete. Alternatively, the recordkeeper
could, under the former rule, sign a separate certification statement rather
than signing the OSHA form. Both
the former rule (paragraph 1904.9 (a) and (b)) and the proposed rule
(paragraph 1904.16(a) and (b)) contained penalty provisions for the
falsification of OSHA records or for the failure to record recordable cases;
these provisions do not appear in the final rule. OSHA believes, based on the
record and the Agency's own recordkeeping and audit experience, that this
deletion will not affect the accuracy or completeness of the records,
employers' recording obligations, or OSHA's enforcement powers. The criminal
penalties referred to in paragraph 1904.9(a) of the former rule are
authorized by section 17(g) of the OSH Act and do not need to be repeated in
the final rule to be enforced. Similarly, the administrative citations and
penalties referred to in paragraph 1904.9(b) of the former rule are
authorized by sections 9 and 17 of the OSH Act. The warning statement on the
final OSHA 300-A form or its equivalent should be sufficient to remind those
who certify the forms of their legal obligations under the Act. OSHA
has revised the final rule's certification requirement in response to
questions about its usefulness raised in the preamble to the proposal (61 FR
4047). In particular, the proposal noted that the person responsible for
preparing the Log and Summary might, in some cases, have an incentive not to
report injuries and illnesses, which would, of course, impair the accuracy of
the Log. OSHA stated that "some employers mistakenly believe that
recording a case implies fault on the part of the employer" and thus has
the potential to adversely affect their ability to defend workers'
compensation claims or lawsuits. Some employers also have established
"accountability systems" that are based on the number of OSHA
recordables, i.e., that evaluate the safety performance of managers by the
number of injuries and illnesses reported by workers in the departments or
organizational units under their control. OSHA noted that individuals whose
performance, promotions, compensation, and/or bonuses depend on the
achievement of reduced injury and illness rates "may be discouraged from
fully and accurately recording injuries and illnesses (61 FR 4047) * *
*" Managers and supervisors being evaluated by the numbers" also
may have an incentive to avoid recording as many cases as possible. OSHA
proposed to change the former rule's certification requirements. In the
proposed rule, OSHA proposed to require that a responsible company official
certify to the accuracy and completeness of the Log and Summary. According to
the proposal, that person would sign the summary to certify that "he or
she has examined the OSHA Injury and Illness Log and Summary and that the
entries on the form and the year-end summary are true, accurate, and
complete" (61 FR 4060). "Responsible company official" was
defined in the proposal as "an owner of the company, the highest ranking
company official working at the establishment, or the immediate supervisor of
the highest ranking company official working at the establishment" (61
FR 4059). By requiring a high level individual to sign each establishment Log
certification, the proposal sought to create an incentive for that official
to take steps to ensure the accuracy and completeness of the information on
the log or face penalties for failing to do so. Several
commenters (see, e.g., Exs. 15: 50, 105, 415) confirmed that an
underreporting incentive did exist under the former rule's certification
system. For example, the International Chemical Workers' Union (Ex. 15: 415)
and Mr. George Cook (Ex. 15: 50) noted the potential for this problem to
arise in their comments to the record. Harsco Corporation (Ex. 15: 105)
pointed out that a contractor's accident rate will affect its ability to bid
for jobs, and there is thus an incentive to keep rates low by not recording
all injuries and illnesses. There
were many responses to the proposed change in the certification requirement.
In general, a broad cross-section of commenters (see, e.g., Exs. 15:
70, 127, 136, 137, 141, 153, 163, 170, 224, 266, 278, 324, 371, 407, 418,
429) gave unqualified support to the proposal's certification by a
"responsible corporate official." Typical of these comments was the
New Jersey Department of Labor's statement that the proposed change would
result in heightened awareness of health and safety problems by management,
enhanced efforts to reduce workplace injuries and illnesses, and more
accurate reporting (Ex. 15: 70). The AFL-CIO noted that requiring top
corporate officials to be responsible "represents a fundamental change
in the importance of data gathering in the workplace" (Ex. 15: 418). A
number of commenters expressed reservations about the definition of
"responsible corporate official" and the extent of the
responsibility and/or legal liability such certification might impose on
certifying officials. Some commenters argued that it was unreasonable for a
high corporate official, who might not be familiar with the recordkeeping
function and its legal requirements, to certify to the accuracy and
completeness of the Log and Summary. These commenters argued that it would be
more appropriate for a high level management official, industrial hygienist,
or director of health and safety to certify the Log and Summary because these
individuals are already responsible for ensuring the accuracy and
completeness of the Log, especially in multi-establishment businesses where
recordkeeping is centralized (see, e.g., Exs. 21; 25; 27; 33; 15: 44,
48, 65, 122, 132, 133, 147, 154, 161, 169, 174, 176, 193, 194, 199, 203, 231,
242, 263, 269, 270, 272, 273, 283, 284, 289, 290, 292, 295, 297, 299, 301,
304, 305, 317, 325, 329, 332, 341, 345, 346, 348, 364, 368, 377, 385, 386,
387, 403, 405, 410, 412, 413, 420, 425, 442). Two commenters suggested that,
if a high level official were to be responsible for the certification, he or
she should only be required to certify that the "[c]ompany has * * *
taken reasonable steps to ensure the accuracy of the logs" (Exs. 15:
200, 442). Several representatives from the construction industry (see, e.g.,
Exs. 15: 126, 342, 355) urged OSHA to make sure that any certification
provision reflect the operation of multi-employer construction sites. These
commenters recommended that the certifying official either be the senior
official on-site or that person's immediate superior. Other
employer representatives believed that the broad nature of the proposed
certification could make the certification vulnerable to legal liability
(see, e.g., Exs. 20; 33; 15: 122, 133, 147, 149, 176, 193, 199, 201,
205, 220, 231, 236, 272, 273, 284, 290, 292, 297, 301, 304, 313, 318, 320,
335, 345, 346, 352, 353, 368, 373, 375, 389, 396, 424, 425, 427, 428, 430).
The National Association of Manufacturers (Ex. 15: 305), in a statement that
is representative of the views of these commenters, said that: [t]he
language of the certification is totally impractical and unreasonable in that
it is written as a certification of absolute completeness and accuracy. This
creates such an unreasonably high standard that no one should legitimately be
asked or required to sign it. As a general rule, we believe an individual
would be expected to have significantly better knowledge of the information
on his/her personal income tax return than on the OSHA Form 300; yet even the
certification on the personal income tax return includes the language
"to the best of my knowledge and belief." This clause must be added
to the certifying language. Numerous
commenters favored a dual level of accountability, with a first level
certification by the "responsible company official," as defined in
the proposal, and a second level certification required by a high level
corporate official with safety and health responsibilities (see, e.g.,
Exs. 20, 15: 65, 89, 182, 369, 380, 409, 415). These participants recommended
that OSHA require a more senior official, at a corporate level beyond the
establishment keeping the records, additionally certify that the company had
made a good faith effort to ensure accurate and complete records for all of
the employer's establishments. The American Automobile Manufacturers
Association (AAMA) stated that it: [a]grees
that a corporate official responsible for health and safety and the highest
ranking company official at an establishment should certify that a good faith
effort for proper recordkeeping has taken place, and the individual
responsible for day-to-day OSHA recordkeeping should certify the accuracy and
completeness of the log (Ex. 15-409). OSHA
has not adopted a dual certification requirement because one certification
should be enough to make sure that the records are accurate. In addition, a
dual certification requirement would increase the complexity and burdens of
the final rule, without significantly adding incentives for employers to keep
better records. Some
commenters wished OSHA to maintain the former rule's approach to
certification. These participants were generally skeptical of senior
management certification, characterizing it as impractical, onerous,
burdensome, unrealistic, intrusive, and infringing on the prerogative of
management to designate the appropriate person(s) to certify the Log (see, e.g.,
Exs. 15: 9, 15, 39, 45, 60, 89, 96, 132, 149, 156, 183, 184, 185, 195, 200,
201, 203, 204, 213, 218, 225, 239, 259, 260, 262, 265, 271, 272, 303, 304,
313, 317, 318, 320, 332, 335, 338, 344, 352, 353, 360, 373, 378, 389, 390,
392, 401, 406, 414, 423, 424, 427, 428, 430, 431). According to the Battery
Council International, "[t]he threat of civil and criminal liability
provides more than enough incentive to ensure the accuracy of the
recordkeeping Log and Summary" (Ex. 15: 161). Mallinckrodt Chemical,
Inc., and the Interconnecting and Packaging Electronic Circuits Corporation
echoed this belief (Exs. 15: 69, 172). The Vulcan Chemical Company went so
far as to recommend that OSHA delete certification requirements completely
and rely only on the proposed penalty provisions (Ex. 15: 171). Most
commenters opposing high-level management certification argued that
management-designated, well-qualified, lower level administrative personnel
perform the recordkeeping function and can therefore best certify to the
accuracy of the OSHA 300 Log (see, e.g., Exs. 15: 69, 220, 225, 227,
281, 297, 305, 313, 352, 353). According to the American Textile
Manufacturers Institute (Ex. 15: 156), "[a] corporate official (i.e.,
safety director, human resources director, Chief Executive Officer) should
never be required to certify the accuracy of the logs. Commenters also stated
that placing the responsibility on senior management would increase the
economic and paperwork burden of the rule because these individuals would
need additional training and would conduct audits, particularly at businesses
with many work locations (see, e.g., Exs. 15 : 213, 259, 375, 395). A
few commenters stated that none of OSHA's proposed approaches, including the
Log and Summary certification, would significantly decrease the financial
incentives employers have for underreporting (see, e.g., Exs. 15: 39,
199, 406). The Ogletree, Deakins, Nash, Smoak & Stewart Coalition
(ODNSSC) said that "[i]n the final analysis, the one measure that will
have the greatest effect in fostering the maintenance of accurate logs is
finally within the grasp of all interested parties: the promulgation of a
final rule * * * that is well conceived, makes intuitive and analytical
sense, and as such is largely accepted within the regulated community"
(Ex. 15: 406). Although
OSHA believes that the final rule has many features that will enhance the
accuracy and completeness of reporting, the Agency has included a company
executive level of certification in the final rule. OSHA believes that
company executive certification will raise employer awareness of the
importance of the OSHA records, improve their accuracy and completeness (and
thus utility), and decrease any underreporting incentive. The
final rule therefore requires a higher level company official to certify to
their accuracy and completeness. Thus the final rule reflects OSHA's
agreement with those commenters who stated that the Log and Summary must be
actively overseen by higher level management and that certification by such
an official would make management's responsibility for the accuracy and
completeness of the system clear (see, e.g., Exs. 20; 15: 31, 65, 70,
89, 127, 136, 137, 141, 153, 163, 170, 182, 224, 266, 278, 324, 369, 371,
380, 396, 407, 409, 415, 418, 429). As the Union Carbide Company stated,
having a higher authority sign a qualified certification of the summary
"[w]ould encourage activities, such as training and periodic
reviews/audits of the logs, to improve the accuracy and completeness of the
data" (Ex. 15: 396). In the words of one safety consultant,
"[u]ntil there is a Corporate Commitment the information will be
suspect" (Ex. 15: 31). OSHA
has slightly modified the proposed definition of responsible company official
in the text of the final rule. In the final rule, the person who must perform
the certification must be a company executive. OSHA does not believe that an
industrial hygienist or a safety officer is likely to have sufficient
authority to ensure the integrity of a company's recordkeeping process. Therefore,
the final rule requires that the certification be provided by an owner of a
sole proprietorship or partnership, an officer of the corporation, the
highest-ranking official at the establishment, or that person's supervisor. OSHA
believes that this definition takes into account and addresses the concerns
of the comments received from construction employers (see, e.g., Exs.
15: 105, 126.342, 355). OSHA
is also aware that senior management officials cannot be expected to have
hands-on experience in the details of the logs and summaries and therefore
that their certification attests to the overall integrity of the
recordkeeping process. In response to numerous comments that certification by
the responsible company official be qualified by the addition to the
certification of a clause such as "to the best of my knowledge and
belief" (see, e.g., Exs. 20, 15: 122, 193, 199, 205, 220, 272,
273, 290, 305, 320, 335, 375, 396, 424, 425, 427, 428, 430), OSHA has added
that the certification required by the final rule must be based on the
official's "reasonable belief" that the Log and Summary are
accurate and complete. Certification thus means that the certifying official
has a general understanding of the OSHA recordkeeping requirements, is familiar
with the company's recordkeeping process, and knows that the company has
effective recordkeeping procedures and uses those procedures to produce
accurate and complete records. The precise meaning of "reasonable
belief" will be determined on a case-by-case basis because circumstances
vary from establishment to establishment and decisions about the
recordability of individual cases may differ, depending upon case-specific
details. 2. Number of employees and hours worked. Injury and illness records provide a
valuable tool for OSHA, employers, and employees to determine where and why
injuries and illnesses occur, and they are crucial in the development of
prevention strategies. The final rule requires employers to include in the
Annual Summary (the OSHA Form 300-A) the annual average number of employees
covered by the Log and the total hours worked by all covered employees. In
the proposal (61 FR 4037), OSHA stated that this information would facilitate
hazard analysis and incidence rate calculations for each covered
establishment. A number of commenters supported the proposed approach and
felt that it would not be a burden on employers, as long as OSHA granted some
flexibility to employers who did not have sophisticated recordkeeping systems
(see, e.g., Exs. 15: 48, 61, 70, 78, 153, 163, 181, 262, 310, 350,
369, 429). For example, the Safety Services Administration of the City of
Mesa, Arizona, a small employer, stated: [f]or
most employers, the average number of employees is readily available; the
work hour totals may, or may not be so easily obtained, depending upon the
book keeping methodology. For salaried employees, where detailed hourly
records are not maintained, the 2,000 hr/yr would be used in any case. In our
case, both employee numbers and total hours worked is available and presents
no problem (Ex. 15: 48). Other
commenters stated that the total number of hours worked was readily available
through payroll records and that calculating it would present only a minimal
burden, but were opposed to the required inclusion of the annual average
number of employees because this number is highly variable, difficult to
assess where employment is seasonal and subject to high turnover, and not
important to incidence calculations (see, e.g., Exs. 15: 123, 145, 170,
225, 359, 375). Other
commenters opposed including in the summary the average number of employees
and the total number of hours worked because they believed the costs of
compiling this information would outweigh its benefits, which they believed
to be minimal (see, e.g., Exs. 15: 9, 44, 184, 195, 205, 214, 247,
272, 303, 308, 313, 335, 341, 352, 353, 412, 423, 431), especially in
industries, like health care, with high turnover rates (Ex. 15: 341). One
company estimated its cost of collecting data on total hours worked to be
$200,000 to $300,000 and to take four to six months (Ex. 15: 423). Sprint
Corporation proposed that "[i]ncidence rates continue to be calculated
on an exception basis by the compliance officer at the time of the
inspection. Larger employers, like Sprint, maintain such incidence rates by
department or business unit and not by physical location as broken out on the
OSHA log" (Ex. 15: 133). Some
commenters recommended alternatives, including permitting employers to
estimate the total number of hours worked, possibly by using the ANSI Z16.4
standard of 173.33 hours per month per employee, to minimize the burden (see,
e.g., Exs. 15: 272, 303, 335, 359) or excluding establishments with
fewer than 100 employees from the requirement altogether (Ex. 15: 375). OSHA's
view is that the value of the total hours worked and average number of
employees information requires its inclusion in the Summary, and the final
rule reflects this determination. Having this information will enable
employers and employees to calculate injury and illness incidence rates,
which are widely regarded as the best statistical measure for the purpose of
comparing an establishment's injury and illness experience with national
statistics, the records of other establishment, or trends over several years.
Having the data available on the Form 300-A will also make it easier for the
employer to respond to government requests for the data, which occurs when
the BLS and OSHA collect the data by mail, and when an OSHA or State inspector
visits the facility. In particular, it will be easier for the employer to
provide the OSHA inspector with the hours worked and employment data for past
years. OSHA
does not believe that this requirement creates the time and cost burden some
commenters to the record suggested, because the information is readily
available in payroll or other records required to be kept for other purposes,
such as income tax, unemployment, and workers' compensation insurance
records. For the approximately 10% of covered employers who participate in
the BLS's Annual Survey of Occupational Injuries and Illnesses, there will be
no additional burden because this information must already be provided to the
BLS. Moreover, the rule does not require employers to use any particular method
of calculating the totals, thus providing employers who do not maintain
certain records -- for example the total hours worked by salaried employees
-- or employers without sophisticated computer systems, the flexibility to
obtain the information in any reasonable manner that meets the objectives of
the rule. Employers who do not have the ability to generate precise numbers
can use various estimation methods. For example, employers typically must
estimate hours worked for workers who are paid on a commission or salary
basis. Additionally, the instructions for the OSHA 300-A Summary form include
a worksheet to help the employer calculate the total numbers of hours worked
and the average number of. 3. Extended posting period. The final rule's requirement increasing the
summary Form 300-A posting period from one month to three months is intended
to raise employee awareness of the recordkeeping process (especially that of
new employees hired during the posting period) by providing greater access to
the previous year's summary without having to request it from management. The
additional two months of posting will triple the time employees have to
observe the data without imposing additional burdens on the employer. The
importance of employee awareness of and participation in the recordkeeping
process is discussed in the preamble to sections 1904.35 and 1904.36. The
requirement to post the Summary on February 1 is unchanged from the posting
date required by the former rule. As OSHA stated in the proposal (61 FR 4037)
"one month (January) is a reasonable time period for completing the
summary section of the form." Only three commenters disagreed (see, e.g.,
Exs. 15: 347, 402, 409); two of these commenters suggested that 60 days were
required to do so (Exs. 15: 347, 409). OSHA believes that, since the required
process is simple and straightforward, 30 days will be sufficient. Delaying
the posting any further would mean that employers would not have access to
the Summary for a longer period, thus diminishing the timeliness of the
posted information. OSHA's
proposal would have required employers to post the summary for one year,
based on the Agency's preliminary conclusion that continuous posting
presented no additional burden for employers and would be beneficial to employees
(61 FR 4037-4038). The one-year posting period was unconditionally supported
by a number of commenters (see, e.g., Exs. 15: 70, 153, 154, 199, 277)
and was supported by others on the condition that no updating of the posted
summary be required (see, e.g., Exs. 15: 262, 288, 435). The AAMA and
the Ford Motor Co. supported a ten-month posting period (from March 1 to
December 31) (Exs. 15: 347, 409). A
number of commenters stated that a one-year posting period was too long and
would not be justified by the minimal benefits to be achieved by such
year-long posting. Some of these participants contended that the Annual
Summary does not continue to provide useful, accurate information after its
initial posting and will not enhance employee awareness because, although
posting of a new summary is noticed when it is done, it becomes
"wallpaper" shortly thereafter, especially if it is on a cluttered
bulletin board (see, e.g., Exs. 33; 15: 9, 23, 39, 40, 45, 60, 66, 98,
107, 119, 121, 122, 176, 203, 204, 231, 232, 273, 281, 289, 301, 317, 322,
329, 335, 341, 344, 347, 348, 356, 358, 381, 389, 399, 405, 409, 414, 428,
430, 431, 434, 441). For example, the Witco Corporation predicted that the
12-month posting requirement "[w]ill result in no one noticing the old Log's
removal and the posting of a new one" (Ex. 15: 107). One commenter even
suggested that continuous posting "[u]ndermines the Agency's intent in
bringing the information to employees" attention" (Ex. 15: 428). Other
commenters argued that year-long posting was excessive because it created too
great a burden on employers. They stated that extended posting would require
employers to make periodic inspections to ensure that the summary had not
been taken down, covered, or defaced (see, e.g., Exs. 37, 15: 57, 80,
97, 151, 152, 179, 180, 272, 303, 335, 346, 381, 410, 431), and that this
additional administrative burden, especially to employers with large
establishments that now voluntarily post Logs in multiple locations, could be
significant (see, e.g., Exs. 15: 97, 184, 239, 272, 283, 297, 303,
304, 305, 348, 395, 396, 410, 424, 430). One suggestion made by commenters to
minimize this burden was to post the Summary for one month at the
establishment and then at a central location for the remaining eleven months
(see, e.g., Exs. 15: 151, 152, 179, 180) or to permit electronic
posting (Ex. 15: 184). Other employers opposed the extended posting period on
the grounds that a one-month period posting was sufficient to achieve OSHA's
objectives (see, e.g., Exs. 15: 9, 15, 39, 45, 49, 57, 69, 74, 80, 89,
97, 98, 116, 119, 133, 163, 182, 184, 195, 203, 287, 289, 335, 356, 396, 424,
427, 428, 441, 443), especially since employees have access to the summary at
any time during the retention period (see, e.g., Exs. 15: 9, 15, 69,
80, 98, 119, 136, 137, 141, 161, 200, 204, 224, 225, 266, 272, 278, 303, 312,
317, 324, 348, 374, 395, 405, 406, 410, 412, 431). Still other commenters
thought the one-year period was too long but supported a two or even
three-month posting period as adding little, if any, additional burden (see, e.g.,
Exs. 37, 15: 78, 89, 199, 235, 256, 277). After
a review of all the comments received and its own extensive experience with
the recordkeeping system and its implementation in a variety of workplaces, OSHA
has decided to adopt a 3-month posting period. The additional posting period
will provide employees with additional opportunity to review the summary
information, raise employee awareness of the records and their right to
access them, and generally improve employee participation in the
recordkeeping system without creating a "wallpaper" posting of
untimely data. In addition, OSHA has concluded that any additional burden on
employers will be minimal at best and, in most cases, insignificant. All the
final rule requires the employer to do is to leave the posting on the
bulletin board instead of removing it at the end of the one-month period. In
fact, many employers preferred to leave the posting on the bulletin board for
longer than the required one-month period in the past, simply to provide
workers with the opportunity to view the Annual Summary and increase their
awareness of the recordkeeping system in general and the previous year's
injury and illness data in particular. OSHA agrees that the 3-month posting
period required by the final rule will have these benefits which, in the
Agency's view, greatly outweigh any minimal burden that may be associated
with such posting. The final rule thus requires that the Summary be posted
from February 1 until April 30, a period of three months; OSHA believes that
the 30 days in January will be ample, as it has been in the past, for
preparing the current year's Summary preparatory to posting. 4. Review of the records. The provisions of the final rule requiring the employer to review the
Log entries before totaling them for the Annual Summary are intended as an
additional quality control measure that will improve the accuracy of the
information in the Annual Summary, which is posted to provide information to
employees and is also used as a data source by OSHA and the BLS. Depending on
the size of the establishment and the number of injuries and illnesses on the
OSHA 300 Log, the employer may wish to cross-check with any other relevant
records to make sure that all the recordable injuries and illnesses have been
included on the Summary. These records may include workers' compensation
injury reports, medical records, company accident reports, and/or time and
attendance records. OSHA
did not propose that any auditing or review provisions be included in the
final rule. However, several commenters suggested that OSHA include
requirements that would require employers to audit the OSHA 300 Log
information (see, e.g., Exs. 35; 36; 15: 31, 310, 418, 438). For
example, the United Auto Workers (Ex. 15: 438) stated: [t]he
most important change OSHA could make in recordkeeping rules would be to
require employers to conduct an independent audit of the completeness of the
record. The purpose of the audit would be to determine that no case went
unrecorded, and that no disabling injury or illness was mislabeled as non
lost workday. Such requirements were not in the proposal, but are desperately
needed. Linda
Ballas (Ex. 15: 31), a safety consultant who performs audits of OSHA injury
and illness records for employers, added [u]ntil there is Corporate
Commitment the information will be suspect. * * * Audits are necessary."
In fact, the Laborers' Health & Safety Fund of North America (Ex. 15:
310) recommended biennial third-party audits. In
the final rule, OSHA has not adopted regulatory language that requires formal
audits of the OSHA Part 1904 records. However, the final rule does require
employers to review the OSHA records as extensively as necessary to ensure
their accuracy. The Agency believes that including audit provisions is not
necessary because the high-level certification requirement will ensure that
recordkeeping receives the appropriate level of management attention. Some
companies, especially larger ones, may choose to conduct audits, however, to
ensure that the records are accurate and complete; many companies commented
that they already perform records audits as part of their company's safety
and health program. For example, the Ford Motor Company (Ex. 15: 347), Dow
Chemical Company (Ex. 15: 335), and Brown & Root (Ex. 15: 423) reported
that they audit their injury and illness records on a regular basis. Also,
three commenters to the record were safety and health consultants who provide
injury and illness auditing services to employers, in addition to other
safety and health services (Exs. 15: 31, 345, 406). In the past, OSHA has
entered into a number of corporate-wide settlement agreements with individual
companies that included third-party audits of the employers' injury and
illness records (e.g., Ford, General Motors, Union Carbide). OSHA
expects that many of these companies will continue to audit their injury and
illness records and their recordkeeping procedures, and to take any other
quality control measures they believe to be necessary to ensure the quality
of the records. However, OSHA has not required records audits in the final
rule because the Agency believes that the combination of final rule
requirements providing for employee participation (§ 1904.35), protecting
employees against discrimination for reporting work-related injuries and
illnesses to their employer (section 1904.36), requiring review by employers
of the records at the end of the year, and mandating two level certification
of the records will provide the quality control mechanisms needed to improve
the quality of the OSHA records. Deletions from the former rule. Except for the foregoing changes discussed
above, the final rule is generally similar to the former rule in its
requirements for preparing, certifying and posting of the year-end Summary. However,
some provisions of the former rule related to the Summary have not been
included in the final rule. For example, the former rule required employers
with employees who did not report to or work at a single establishment, or
who did not report to a fixed establishment on a regular basis, to
hand-deliver or mail a copy of the Summary to those employees. OSHA proposed
to maintain this requirement, which was supported by one commenter (Ex. 15:
298) but opposed by many others because of the administrative cost of
preparing such mailings, especially in high turnover industries like
construction (see, e.g., Exs. 15: 116, 132, 199, 200, 201, 312, 322,
329, 335, 342, 344, 355, 375, 395, 430, 440, 441). These commenters pointed
out that employees who do not report to a single establishment still have the
right to view the summary at a central location and to obtain copies of it. In
the final rule, OSHA has decided not to include the proposed requirement for
individual mailings as unnecessary because final paragraph 1904.30(b)(3)
requires that every employee be linked, for recordkeeping purposes, to at
least one establishment keeping a Log and Summary that will be prepared and
posted. In other words, every employee covered by the rule will have his or
her injuries or illnesses recorded on a particular establishment's Log, even
if that employee does not routinely report to that establishment or is
temporarily working there. Thus every employee will have 3-month access to
the Log and Summary at the posted location or may obtain a copy the next
business day under paragraph 1904.35(b)(2)(iii), making the need for
hand-delivery or mailing unnecessary. Under
the former rule, multi-establishment employers who closed an establishment during
the year were not obligated to post an Annual Summary for that establishment.
OSHA believes that this requirement is also unnecessary because it is obvious
in such cases that there is no physical location at which to post the
Summary. Closing an establishment does not, however, relieve an employer of
the obligation to prepare and certify the Summary for whatever portion of the
calendar year the establishment was operating, retain the Summary, and make
the Summary accessible to employees and government officials. Other comments. Some commenters availed themselves of the opportunity to comment on
portions of the recordkeeping rule that OSHA did not propose to change. Some
of these comments addressed the issue of whether to post a year-end Summary
at all. Posting the Summary was almost unanimously supported, but a few
commenters opposed posting on the grounds that posting had "[a] de
minimus effect on employee safety and accident prevention" (Ex. 15: 46),
was not an accurate measure of current safety and health conditions (see, e.g.,
Exs. 15: 95, 126), or was unnecessary and burdensome for their industry (e.g,
the maritime industry (Ex. 15: 95), construction industry (Ex. 15: 126), and
retail store industry (Ex. 15: 367)). Although opposed to the posting of a
year-end summary, one company urged OSHA to require that year-end summaries
be submitted to OSHA (Ex. 15: 63). Alternatives
to posting were suggested by some commenters. One advocated annual
informational meetings with employees instead (Ex. 15: 126), while others
supported mailing the summary to each employee and providing the summary to
new employees at orientation (Ex. 15: 154) or by e-mail (Ex. 15: 156). Three
employers recommended excluding small establishments (fewer than 20, 50 or
100 employees) from posting if all column totals on the Log were zero (see, e.g.,
Exs. 15: 304, 358, 375). OSHA
believes, based on the record evidence and its own extensive recordkeeping
experience, that posting the Summary is important to safety and health for
all the reasons described above. Some of the suggested alternatives may be
useful, and OSHA encourages employers to use any practices that they believe
will enhance their own and employee awareness of safety and health issues,
provided that they also comply fully with the final rule's posting
requirements. Another
issue raised by commenters was whether multi-establishment employers should
be required to post their summaries in each establishment, as required by the
former rule. Employers generally supported posting at each establishment,
although one commenter opposed posting at each establishment in
multi-establishment companies as overly burdensome and without benefit (Ex.
15: 356). One construction employer argued that construction companies should
be allowed to post their summaries at a centralized location and only be
required to do so at the establishment if it was a major construction site in
operation for at least one year (Ex. 15: 116). OSHA
believes that permitting centralized posting only would substantially interfere
with ready employee access to the Log, especially for employers operating
many different sites. The record does not suggest that retaining the
requirement for posting summaries at each establishment will be burdensome to
employers and the final rule accordingly requires that multi-establishment
employers post a Summary in each establishment relating that establishment's
injury and illness experience for the preceding year. Section 1904.33 Retention and Updating Section
1904.33 of the final rule deals with the retention and updating of the OSHA
Part 1904 records after they have been created and summarized. The final rule
requires the employer to save the OSHA 300 Log, the Annual Summary, and the
OSHA 301 Incident Report forms for five years following the end of the
calendar year covered by the records. The final rule also requires the
employer to update the entries on the OSHA 300 Log to include newly
discovered cases and show changes that have occurred to previously recorded
cases. The provisions in section 1904.33 state that the employer is not
required to update the 300A Annual Summary or the 301 Incident Reports,
although the employer is permitted to update these forms if he or she wishes
to do so. As
this section makes clear, the final rule requires employers to retain their
OSHA 300 and 301 records for five years following the end of the year to
which the records apply. Additionally, employers must update their OSHA 300
Logs under two circumstances. First, if the employer discovers a recordable injury
or illness that has not previously been recorded, the case must be entered on
the forms. Second, if a previously recorded injury or illness turns out,
based on later information, not to have been recorded properly, the employer
must modify the previous entry. For example, if the description or outcome of
a case changes (a case requiring medical treatment becomes worse and the
employee must take days off work to recuperate), the employer must remove or
line out the original entry and enter the new information. The employer also
has a duty to enter the date of an employee's return to work or the date of
an injured worker's death on the Form 301; OSHA considers the entering of
this information an integral part of the recordkeeping for such cases. The
Annual Summary and the Form 301 need not be updated, unless the employer
wishes to do so. The requirements in this section 1904.33 do not affect or
supersede any longer retention periods specified in other OSHA standards and
regulations, e.g., in OSHA health standards such as Cadmium, Benzene,
or Lead (29 CFR 1910.1027, 1910.1028, and 1910.1025, respectively). The
proposed rule (61 FR 4030, at 4061) would have reduced the retention and
updating periods for these records to three years. The language of the proposal
was as follows: (a)
Retention. OSHA Forms 300 and 301 or equivalents, year-end summaries, and
injury and illness records for "subcontractor employees" as
required under Sec. 1904.17 of this Part shall be retained for 3 years
following the end of the year to which they relate. (b)
Updating. During the retention period, employers must revise the OSHA Form
300 or equivalent to include newly discovered recordable injuries or
illnesses. Employers must revise the OSHA Form 300 to reflect changes which
occur in previously recorded injuries and illnesses. If the description or
outcome of a case changes, remove the original entry and enter the new
information to reflect the more severe consequence. Employers must revise the
year-end summary at least quarterly if such changes have occurred. Note to Sec. 1904.9: Employers are not required to update OSHA Form 301 to reflect changes
in previously recorded cases. A
number of commenters supported the proposed reduction in the retention period
from five years to three years on the ground that it would reduce
administrative burdens and costs without having any demonstrable effect on
safety and health (see, e.g., Exs. 22, 33, 37, 15: 9, 39, 61, 69, 82,
89, 95, 107, 121, 133, 136, 137, 141, 154, 173, 179, 181, 184, 201, 204, 213,
224, 225, 239, 242, 263, 266, 269, 270, 272, 278, 283, 288, 304, 307, 321,
322, 332, 334, 341, 347, 348, 368, 375, 377, 384, 387, 390, 392, 395, 396,
397, 409, 413, 424, 425, 427, 443). According to the American Iron and Steel
Institute (AISI), whose views were typical of those of this group of
commenters, a three-year retention period: [s]hould
reduce employers' administrative costs without sacrificing any accuracy in
the records of serious illnesses and injuries. Additional cost savings could
be accomplished by limiting the time period during which an employer must
update its injury and illness records to one year. Such a change would allow
employers to close the books sooner on the health and safety data for a
particular year, without resulting in any loss of accuracy. In AISI's
experience, it is extremely rare that any new information on an illness or
injury surfaces more than a few months after an injury is recorded, while the
administrative cost of having to update a log and summary is significant for
the rare cases that yield information after one year (Ex. 15: 395). Several
commenters, however, opposed the three-year retention period and favored the
former rule's five-year retention period (see, e.g., Exs. 20, 24, 15:
153, 350, 359, 379, 407, 415, 429). For example, the American Industrial
Hygiene Association (AIHA) opposed the shorter retention period, stating: [A]IHA
opposes OSHA's proposed change of OSHA recordkeeping record retention from 5
to 3 years. There is little work in record retention, and much information
lost if they are discarded. We recommend maintaining the 5 year retention for
OSHA Logs and supporting 301 forms (Ex. 15: 153.) According
to NIOSH, which favored the longer retention period, retaining records for
five years: [a]llows
the aggregation of data over time that is important for evaluating
distributions of illnesses and injuries in small establishments with few
employees in each department/job title. Also, the longer retention period is
important for the observation of trends over time in the recognition of new
problems and the evaluation of the effectiveness of intervention in large
companies. In addition, the longer retention period makes possible the
assessment of trends over time or to determine if a current cluster of cases
is unusual for that industry. Reducing the retention period would thus have a
detrimental effect on these types of analysis, which are frequently used by
NIOSH in field studies (Ex. 15: 407). The
American Industrial Hygiene Association recommended a longer retention period
(up to 30 years) for the OSHA 301 form to accommodate occupational diseases
with long latency periods (Ex. 15: 153). In
this final rule, OSHA has decided to retain the five-year retention
requirement for OSHA injury and illness records because the longer time
period will enable employers, employees, and researchers to obtain sufficient
data to discover patterns and trends of illnesses and injuries and, in many
cases, to demonstrate the statistical significance of such data. In
addition, OSHA has concluded that the five-year retention period will add
little additional cost or administrative burden, since relatively few cases
will surface more than three years after the injury and illness occurred, and
the vast majority of cases are resolved in a short time and do not require
updating. In addition, OSHA believes that other provisions of the final rule
(e.g., computerization of records, centralized recordkeeping, and the
capping of day counts) will significantly reduce the recordkeeping costs and
administrative burden associated with the tracking of long-term cases. The
comments on the proposed rule's updating requirements for individual entries
on the OSHA Form 300 reflected a considerable amount of confusion about the
proposed rule's requirements for updating. Because the proposed rule did not
state how frequently the form was to be updated, some employers interpreted
the proposed rule as permitting quarterly updates (proposed by OSHA for
year-end summaries only) during the retention period (see, e.g., Exs.
15: 9, 61, 89, 170, 181, 288, 389). Some participants argued for even less
frequent updating (see, e.g., Exs. 15: 151, 152, 179, 180, 317, 348). Several
employers recognized that the Log is an ongoing document and that information
must be updated on a regular basis, preferably at the same frequency as
required for initial recording (see, e.g. Exs. 15: 65, 201, 313, 346,
352, 353, 430). The final rule requires Log updates to be made on a
continuing basis, i.e., as new information is discovered. For example, if a
new case is discovered during the retention period, it must be recorded
within 7 calendar days of discovery, the same interval required for the
recording of any new case. If new information about an existing case is
discovered, it should be entered within 7 days of receiving the new
information. OSHA has also decided to require updating over the entire
five-year retention period. OSHA believes that maintaining consistency in the
length of the retention and updating periods will simplify the recordkeeping
process without imposing additional burdens on employers, because most
updating of the records occurs during the first year following an injury or
illness. The
comments OSHA received on the proposed quarterly updating of year-end summaries
were mixed. Some thought that such updating would provide timely and accurate
information to employees at little cost (see, e.g. Exs. 15: 9, 89,
170, 260, 262, 265, 401), while others saw the requirement as burdensome and
costly and without commensurate value (see, e.g. Exs. 15: 78, 225,
289, 337, 406, 412). Typical of those commenters who viewed such a
requirement as burdensome was the American Automobile Manufacturing
Association (AAMA), which stated "[u]pdating prior year totals on the
annual summary(s) once posted, is of little value. The increase in total
numbers is generally so modest as to not affect the overall magnitude of
problems within an establishment" (Ex. 15: 409). Some
commenters recommended that the summaries be updated less frequently, such as
semi-annually (see, e.g., Exs. 37, 15: 163). The National Safety
Council (Ex. 15: 359) recommended quarterly updates the first year and annual
updates thereafter. Others interpreted the proposed rule as requiring
quarterly updates and re-certification and re-posting of the year-end
summaries after the posting period had ended; these commenters opposed such a
requirement as being overly burdensome (see, e.g., Exs. 15: 181, 199,
201, 225, 272, 288, 303, 308, 351). Lucent Technologies (Ex. 15: 272), one of
these commenters, urged OSHA to add the following qualifier to any
requirement for the updating of the annual summary: "[t]he quarterly
update of the summary is for tracking purposes only and will not require
re-certification or posting." After
reviewing these comments and the evidence in the record, OSHA has decided not
to require the updating of annual summaries. Eliminating this requirement
from the final rule will minimize employers' administrative burdens and
costs, avoid duplication, and avoid the complications associated with the
certification of updated summaries, the replacement of posted summaries, and
the transmission of summaries to remote sites. The Agency concludes that
updating the OSHA Form 300 or its equivalent for a period of five years will
provide a sufficient amount of accurate information for recordkeeping
purposes. OSHA is persuaded that updating the year-end summary would provide
little benefit as long as the information from which the summaries are
derived (the OSHA Form 300) is updated for a full five-year period. Very
few comments were received on OSHA's proposed position not to require the
updating of the 301 form. All of the comments received supported OSHA's
proposed approach (see, e.g., Exs. 15: 260, 262, 265, 401). OSHA does
not believe that updating the OSHA Form 301 will enhance the information
available to employers, employees, and others sufficiently to warrant
including such a requirement in the final rule. However, the final rule makes
it clear that employers may, if they choose, update either the Summary or the
Form 301. Section 1904.34 Change in Business Ownership Section
1904.34 of the final rule addresses the situation that arises when a
particular employer ceases operations at an establishment during a calendar
year, and the establishment is then operated by a new employer for the
remainder of the year. The phrase "change of ownership," for the
purposes of this section, is relevant only to the transfer of the
responsibility to make and retain OSHA-required injury and illness records. In
other words, if one employer, as defined by the OSH Act, transfers ownership
of an establishment to a different employer, the new entity becomes
responsible for retaining the previous employer's past OSHA-required records
and for creating all new records required by this rule. The
final rule requires the previous owner to transfer these records to the new
owner, and it limits the recording and recordkeeping responsibilities of the
previous employer only to the period of the prior owner. Specifically,
section 1904.34 provides that if the business changes ownership, each
employer is responsible for recording and reporting work-related injuries and
illnesses only for that period of the year during which each employer owned
the establishment. The selling employer is required to transfer his or her
Part 1904 records to the new owner, and the new owner must save all records
of the establishment kept by the prior owner. However, the new owner is not
required to update or correct the records of the prior owner, even if new
information about old cases becomes available. The
former OSHA injury and illness recording and reporting rule also required
both the selling and buying employers to record and report data for the
portion of the year for which they owned the establishment. Although the
former rule required the purchasing employer to preserve the records of the
prior employer, it did not require the prior employer to transfer the OSHA
injury and illness records to the new employer. Section 1904.11 of the former
rule stated: Where
an establishment has changed ownership, the employer shall be responsible for
maintaining records and filing reports only for that period of the year
during which he owned such establishment. However, in the case of any change
in ownership, the employer shall preserve those records, if any, of the prior
ownership which are required to be kept under this part. These records shall
be retained at each establishment to which they relate, for the period, or
remainder thereof, required under § 1904.6. The
section of OSHA's proposed rule addressing "change of ownership"
mirrored the former rule with only slight language changes, as follows: Where
an establishment has changed ownership, each employer shall be responsible
for recording and reporting occupational injuries and illnesses only for that
period of the year during which he or she owned such establishment, but the
new owner shall retain all records of the establishment kept by the prior
owner, as required by § 1904.9(a) of this Part. Some
commenters felt that this proposed section suggested that new owners could be
held responsible for obtaining OSHA injury and illness records, but that the
former owners were not required to provide them (see, e.g., Exs. 15:
119 298, 323, 356, 397, 323). This interpretation, which would clearly place
the new owner in an untenable position, was not accurate. Consequently, to
avoid confusion in the future, the final rule requires former owners to
transfer their Part 1904 records to the new owner. This requirement ensures
that the continuity of the records is maintained when a business changes
hands. Sections 1904.35 Employee Involvement, and 1904.36, Prohibition
Against Discrimination One
of the goals of the final rule is to enhance employee involvement in the
recordkeeping process. OSHA believes that employee involvement is essential
to the success of all aspects of an employer's safety and health program. This
is especially true in the area of recordkeeping, because free and frank
reporting by employees is the cornerstone of the system. If employees fail to
report their injuries and illnesses, the "picture" of the workplace
that the employer's OSHA forms 300 and 301 reveal will be inaccurate and
misleading. This means, in turn, that employers and employees will not have
the information they need to improve safety and health in the workplace. Section
1904.35 of the final rule therefore establishes an affirmative requirement
for employers to involve their employees and employee representatives in the
recordkeeping process. The employer must inform each employee of how to
report an injury or illness, and must provide limited access to the injury
and illness records for employees and their representatives. Section 1904.36
of the final rule makes clear that § 11(c) of the Act prohibits employers
from discriminating against employees for reporting work-related injuries and
illnesses. Section 1904.36 does not create a new obligation on employers. Instead,
it clarifies that the OSH Act's anti-discrimination protection applies to
employees who seek to participate in the recordkeeping process.(3) Under
the employee involvement provisions of the final rule, employers are required
to let employees know how and when to report work-related injuries and
illnesses. This means that the employer must establish a procedure for the
reporting of work-related injuries and illnesses and train its employees to
use that procedure. The rule does not specify how the employer must
accomplish these objectives. The size of the workforce, employees' language
proficiency and literacy levels, the workplace culture, and other factors
will determine what will be effective for any particular workplace. Employee
involvement also requires that employees and their representatives have
access to the establishment's injury and illness records. Employee
involvement is further enhanced by other parts of the final rule, such as the
extended posting period provided in section 1904.32 and the access statements
on the new 300 and 301 forms. These
requirements are a direct outgrowth of the issues framed by OSHA in the 1996
proposal. In that Federal Register notice, OSHA proposed an employee
access provision, § 1904.11(b), and discussed the issue at length in the
preamble (61 FR 4038, 4047, and 4048). OSHA did not propose a specific
provision for employee involvement in the reporting process, but raised the
issue for discussion in the preamble (61 FR 4047-48) (see Issue 7. Improving
employee involvement). The proposed rule did contain a reference to section
11(c) of the OSH Act and its applicability to retaliatory discrimination by
employers against employees who report injuries or illnesses (61 FR 4062). Specifically,
OSHA noted in the NPRM that the Keystone Dialogue report (Ex. 5) advocated
greater employee awareness and involvement in the recordkeeping process to
improve the process and enhance safety and health efforts in general. There
was agreement among members of the Dialogue group that, for a number of
reasons, among them lack of knowledge, fear of reprisal, and apathy,
"employees often do not seek access to injury/illness logs (to a
sufficient extent) * * * [and] that overall workplace safety and health would
benefit if the information in the logs were more widely known. * * *" In
this regard, the group made several recommendations to modify the
recordkeeping process and to involve employees in accident prevention
efforts: §
OSHA should require employers
to notify employees individually of log entries for each recordable case and
their right to access the records, either by providing them with a copy of
the 101 form or the log, by having the employee initial or otherwise
acknowledge the log entry, or by other means negotiated with a designated
employee representative; §
Employers should inform
employees of an affirmative duty to bring cases to the employer's attention; §
OSHA should add statements to
the OSHA recordkeeping forms 101 and 200 that inform employees of their right
to access the 200 form; §
OSHA should extend the posting
period for the 200 form from one month to 12 months; §
Employers should share data
with employees and members of safety committees; §
Employers should include more
employees in accident investigations and analyses; and §
Detailed survey data systems
should be developed so those employees could assist employers in evaluating
accident and exposure risks associated with their work processes. OSHA
also noted that the General Accounting Office (GAO) report (Ex. 3) identified
employee lack of knowledge and understanding of the recordkeeping system as
one cause of the underreporting of occupational injuries and illnesses. Based
on these and other reports and OSHA's compliance experience, OSHA requested
comment in the proposal on (1) whether employers should notify employees that
their injuries or illnesses have been entered into the records, (2) if so,
how employers could meet such a requirement and the degree of flexibility
OSHA should give employers, (3) any other ideas for improving employee
involvement in the recordkeeping system, and (4) the costs and benefits of
alternate proposals. These
issues drew considerable comment during the rulemaking. With few exceptions
(see, e.g., Exs. 15: 13, 78, 201, 389, 406), commenters generally
supported increasing employee awareness and involvement in the recordkeeping
process in some form (see, e.g., Exs. 15: 26, 85, 87, 154, 170, 199,
234, 310, 341, 357, 378, 414, 415, 418, 426). For example, some commenters
supported increasing employee awareness by requiring year-round posting of
the OSHA 300 Log (see, e.g., Exs. 15: 154, 170, 199, 415, 426), adding
an employee accessibility statement to the OSHA 300 Log (Ex. 15: 418) , and
requiring employee training on recordkeeping issues and procedures (Ex. 15:
418). A number of commenters also discussed their own efforts to involve
employees in various recordkeeping activities, such as in filling out
accident forms (see, e.g., Exs. 15: 23, 87, 225), assisting in
accident investigations (see, e.g., Exs. 15: 170, 357, 425), and
reviewing accident data (see, e.g., Exs. 15: 260, 262, 265, 310, 357,
401, 414). However,
most employers, including many who supported various methods to increase
employee awareness and involvement in the process, opposed a provision
requiring employers to notify individual employees that their injuries have
been recorded on the Log because, in their views, such a requirement would
not be likely to achieve OSHA's stated objective and would be too burdensome
and costly for employers (see, e.g., Exs. 15: 9, 49, 60, 76, 82, 85,
95, 109, 123, 145, 154, 170, 172, 199, 204, 218, 225, 262, 281, 283, 288,
324, 341, 357, 374, 393, 406, 426). Representative of these comments were
those of AT&T and Lucent Technologies, which pointed out that workers are
currently required to be notified about the status of job-related incidents
by workers' compensation regulations and company benefit programs and that
separate notification of an OSHA 300 Log entry would therefore be confusing
and redundant (Exs. 15: 272 and 15: 303). On
the other hand, individual notification of employees was supported by
commenters from the unions and professional organizations, as well as by some
employers (see, e.g., Exs. 15: 156, 181, 233, 247, 310, 350, 369,
414). For example, the American Association of Occupational Health Nurses
(Ex. 15: 181) supported notification "[a]s a means of improving employee
cooperation and helping employees recognize their role in working safely and
promoting a safe workplace." Those supporting notification suggested
that reasonable means of providing such notification would be direct mail,
including a notice in a pay envelope, or e-mailing a notice and/or the OSHA
301 form to affected employees (see, e.g., Exs. 15: 310, 350). The
National Safety Council's comment (Ex. 15: 359) typifies the views of these
commenters: [w]e
believe that employee involvement in occupational safety and health issues is
highly desirable and that notification is one aspect of employee involvement.
* * * If OSHA were to require notification, then OSHA should require each
employer to create and comply with its own written notification policy --
perhaps subject to some limitation such as notification within 7-14 days of
entry on the Log. The OSHA compliance officer can verify compliance with the
company's policy on a test basis during an inspection. Other
commenters (see, e.g., Exs. 15: 234, 283, 348, 426) agreed that the
final rule should not specify how employee notification should be
accomplished. For example,
E. I. du Pont de Nemours Corporation (Ex. 15: 348) stated: [l]egislating
how people communicate is confining. Many companies do a fine job of
notifying employees about injuries, investigation findings, hazard reduction,
and ways to contribute to a safer workplace. Mandating a particular method
would be counterproductive to those organizations already doing a good job. *
* * We suggest that unless full implications of involving employees in the
process are clearly understood (and are not prohibited by any other federal
agency) no guideline should be written -- but perhaps suggestions of ways
successful companies have worked with their employees to improve safety
performance could be provided and would be useful. One
participant suggested a policy of having the injured employee view the Log to
verify its accuracy, noting that "[t]his procedure * * * does not appear
to place additional costs or undue burden on the employer" (Ex. 15:
163). Another recommended a "face-to-face advisory" after an
investigation of the accident had been completed (Ex. 15: 414). The American
Textile Manufacturers Institute (Ex. 15: 156) suggested more proactive
approaches: [o]ther
methods for improving employee involvement in the injury and illness
recordkeeping system include giving employees accident causation and
prevention information from the records. In addition, information about
departments, accident types, injury types, hazards and contributing factors,
etc., could and should be shared for the benefit of employer and employees. The
AFL-CIO, United Auto Workers (UAW), Services Employees International Union
(SEIU), and MassCOSH addressed the reporting disincentive that occurs when
employees are threatened, disciplined, or discriminated against for reporting
injuries or illnesses (Exs. 58X, 15: 79, 418, 438). MassCOSH recounted how
health care workers were disciplined for reporting multiple needle stick
injuries, and the United Auto Workers noted that some injury victims were
subject to drug testing (Ex. 15: 438). The unions recommended that
discriminatory treatment of employees who report injuries should be presumed
to be a violation of section 11(c), the anti-discrimination provision of the
OSH Act (see, e.g., Exs. 48, 58X, 15: 379, 418, 438). Specifically,
the UAW (Ex. 15: 438) recommended that the following regulatory text be added
to the final rule: [r]eporting
* * * an injury or illness to management is an activity in support of the
purposes of the Act. Since an injury report may trigger an employer's
responsibility to abate a hazard, such report is an exercise of an employee's
right under the Act and therefore protected activity under Section 11(c) of
the Act. Adverse action by an employer following such a report shall be
presumed to be discrimination. Examples of adverse action are verbal
warnings, disparate treatment, additional training provided only to injury
victims, disciplinary action of any kind, or drug testing. Suffering an
injury or illness by itself shall not be considered probable cause to trigger
a drug test. An employer may rebut the presumption of discrimination by
showing substantial evidence that injured employees receive consistent
treatment to those who have not suffered injuries. Granting of prizes or
compensation to employees or groups of employees who do not report injuries
is discrimination against those employees who do report injuries. Therefore,
such programs are violations of Section 11(c) of the Act. The
AFL-CIO (Ex. 15: 4218) supported this language and, along with the Union of
Needletrades, Industrial and Textile Employees (UNITE) (Ex. 15: 380), also
recommended that the rule include a prohibition against retaliation or
discrimination that would be enforced in the same manner as other violations
of the recordkeeping rule (Ex. 15: 418). The AFL-CIO (Ex. 15: 418) also
requested that OSHA include in the final rule: [a]n
affirmative obligation on employers to inform employees of their right to
report injuries or illnesses without fear of reprisal and to gain access to
the Log 300 and to the Form 301 with certain limitations. At a minimum, the
Log 300 should contain a statement, which informs employees of their rights
and protections afforded under the rule. We recommend the following language
be added to the log: 'Employees have a right to report work-related injuries
and illnesses to their employer and to gain access to the Log 300 and Form
301.' OSHA
has concluded that the rulemaking record overwhelmingly demonstrates that
employee awareness and involvement is a crucial part of an effective
recordkeeping program, as well as an overall safety and health program. There
was little disagreement over this point among participants in the rulemaking,
whether they represented management, labor, government or professional
associations (see, e.g., Exs. 15: 26, 85, 87, 154, 170, 199, 234, 310,
341, 357, 378, 414, 415, 426). There was also no disagreement with the
unions' contention that employees should not be retaliated against for
reporting work-related injuries and illnesses and for exercising their right
of access to the Log and Incident Report forms. The prominent employee
involvement issues in the rulemaking were thus not whether employee
involvement should be strengthened but to what extent and in what ways
employees should be brought into the process. In
response to this support in the record, OSHA has strengthened the final rule
to promote better injury and illness information by increasing employees'
knowledge of their employers' recordkeeping program and by removing barriers
that may exist to the reporting of work-related injuries and illnesses. To
achieve this goal, the final rule establishes a simple two-part process for
each employer who is required to keep records, as follows: --
Set up a way for employees to report work-related injuries and illnesses
promptly; and --
Inform each employee of how to report work-related injuries and illnesses. OSHA
agrees with commenters that employees must know and understand that they have
an affirmative obligation to report injuries and illnesses. Additionally,
OSHA believes that many employers already take these actions as a common
sense approach to discovering workplace problems, and that the rule will
thus, to a large extent, be codifying current industry practice, rather than
breaking new ground. OSHA
is convinced that a performance requirement, rather than specific requirements,
will achieve this objective effectively, while still giving employers the
flexibility they need to tailor their programs to the needs of their
workplaces (see, e.g., Exs. 15: 234, 283, 348, 359, 426). The Agency
finds that employee awareness and participation in the recordkeeping process
is best achieved by such provisions of the final rule as the requirement to
extend the posting period for the OSHA 300 summary, the addition of
accessibility statements on the OSHA Summary, and requirements designed to
facilitate employee access to records. Many
of the specific suggestions made by commenters have not been adopted in the
final rule in favor of the more performance-based approach to employee
involvement supported by so many commenters. For example, OSHA has decided
not to require employers to devise a method of notifying individual employees
when a case involving them has been entered on the OSHA 300 Log. An employee
notification requirement would be very burdensome and costly, and the
potential advantages of an employee notification system have not been shown
in the record for this rule. Thus, OSHA is not sure that employee
notification would improve the quality of the records enough to justify the
added burdens. Additionally, employees and their representatives have a right
to access the records under the final rule, if they wish to review the
employer's recording of a given occupational injury or illness case. OSHA
believes that the improved recordkeeping that will result from the changes
being made to the final rule, the enhanced employee involvement reflected in
many of the rule's provisions, and the prohibition against discrimination
will all work in concert to achieve the goal envisioned by those commenters
who urged OSHA to require employee notification: more and better reporting
and recording. Several
of the other suggestions made by participants -- such as including employees
in accident investigations and involving employees in program evaluation --
are beyond the scope of the Part 1904 regulation, which simply requires
employers to record and report occupational deaths, injuries and illnesses. OSHA
encourages employers and employees to work together to determine how best to
communicate the information that workers need in the context of each specific
workplace. Moreover, OSHA encourages employers to involve their workers in
activities such as accident investigations and the analysis of accident,
injury and illness data, as suggested by some commenters, but believes that
requiring these activities is beyond the scope of this rule. OSHA
has also included in the final rule, in section 1904.36, a statement that
section 11(c) of the OSH Act protects workers from employer retaliation for
filing a complaint, reporting an injury or illness, seeking access to records
to which they are entitled, or otherwise exercising their rights under the
rule. This section of the rule does not impose any new obligations on
employers or create new rights for employees that did not previously exist. In
view of the evidence that retaliation against employees for reporting
injuries is not uncommon and may be "growing" (see, e.g.,
Ex. 58X, p. 214), this section is intended to serve the informational needs
of employees who might not otherwise be aware of their rights and to remind
employers of their obligation not to discriminate. OSHA concurs with the
International Chemical Workers Union, which, while discussing the issue of
whether personal identifiers should be used on the Log, stated (Ex. 15: 415),
"We have never heard of [personal identifiers] being an issue for our
members, except when management used the reports as an excuse to discipline
'unsafe' workers. The addition of language notifying workers of their rights
to 11(c) protection * * * should help alleviate any such concerns." Employee
access to OSHA injury and illness records The
Part 1904 final rule continues OSHA's long-standing policy of allowing
employees and their representatives access to the occupational injury and
illness information kept by their employers, with some limitations. However,
the final rule includes several changes to improve employees' access to the
information, while at the same time implementing several measures to protect
the privacy interests of injured and ill employees. Section 1904.35 requires
an employer covered by the Part 1904 regulation to provide limited access to
the OSHA recordkeeping forms to current and former employees, as well as to
two types of employee representatives. The first is a personal representative
of an employee or former employee, who is a person that the employee or
former employee designates, in writing, as his or her personal
representative, or is the legal representative of a deceased or legally
incapacitated employee or former employee. The second is an authorized
employee representative, which is defined as an authorized collective
bargaining agent of one or more employees working at the employer's
establishment. Section
1904.35 accords employees and their representatives three separate access
rights. First, it gives any employee, former employee, personal
representative, or authorized employee representative the right to a copy of
the current OSHA 300 Log, and to any stored OSHA 300 Log(s), for any
establishment in which the employee or former employee has worked. The
employer must provide one free copy of the OSHA 300 Log(s) by the end of the
next business day. The employee, former employee, personal representative or
authorized employee representative is not entitled to see, or to obtain a
copy of, the confidential list of names and case numbers for privacy cases. Second,
any employee, former employee, or personal representative is entitled to one
free copy of the OSHA 301 Incident Report describing an injury or illness to
that employee by the end of the next business day. Finally, an authorized
employee representative is entitled to copies of the right-hand portion of
all OSHA 301 forms for the establishment(s) where the agent represents one or
more employees under a collective bargaining agreement. The right-hand
portion of the 301 form contains the heading "Tell us about the
case," and elicits information about how the injury occurred, including
the employee's actions just prior to the incident, the materials and tools
involved, and how the incident occurred, but does not contain the employee's
name. No information other than that on the right-hand portion of the form
may be disclosed to an authorized employee representative. The employer must
provide the authorized employee representative with one free copy of all the
301 forms for the establishment within 7 calendar days. Employee
privacy is protected in the final rule in paragraphs 1904.29(b)(7) to (10). Paragraph
1904.29(b)(7) requires the employer to enter the words "privacy
case" on the OSHA 300 Log, in lieu of the employee's name, for
recordable privacy concern cases involving the following types of injuries
and illnesses: (i) an injury from a needle or sharp object contaminated by
another person's blood or other potentially infectious material; (ii) an injury
or illness to an intimate body part or to the reproductive system; (iii) an
injury or illness resulting from a sexual assault; (iv) a mental illness; (v)
an illness involving HIV, hepatitis; or tuberculosis, or (vi) any other
illness, if the employee independently and voluntarily requests that his or
her name not be entered on the log. Musculoskeletal disorders (MSDs) are not
considered privacy concern cases, and thus employers are required to enter
the names of employees experiencing these disorders on the log. The employer
must keep a separate, confidential list of the case numbers and employee
names for privacy cases. The
employer may take additional action in privacy concern cases if warranted. Paragraph
1904.29(b)(9) allows the employer to use discretion in describing the nature
of the injury or illness in a privacy concern case, if the employer has a
reasonable basis to believe that the injured or ill employee may be
identified from the records even though the employee's name has been removed.
Only the six types of injuries and illnesses listed in Paragraph
1904.29(b)(7) may be considered privacy concern cases, and thus the
additional protection offered by paragraph 1904.29(b)(9) applies only to such
cases. Paragraph
1904.29(b)(10) protects employee privacy if the employer decides voluntarily
to disclose the OSHA 300 and 301 forms to persons other than those who have a
mandatory right of access under the final rule. The paragraph requires the
employer to remove or hide employees' names or other personally identifying
information before disclosing the forms to persons other than government
representatives, employees, former employees or authorized representatives,
as required by paragraphs 1904.40 and 1904.35, except in three cases. The
employer may disclose the forms, complete with personally identifying
information, (2) only: (i) to an auditor or consultant hired by the employer
to evaluate the safety and health program; (ii) to the extent necessary for
processing a claim for workers' compensation or other insurance benefits; or
(iii) to a public health authority or law enforcement agency for uses and
disclosures for which consent, an authorization, or opportunity to agree or
object is not required under section 164.512 of the final rule on Standards for
Privacy of Individually Identifiable Health Information, 45 CFR 164.512. The former rule. The access provisions of the former recordkeeping regulation required
employers to provide government representatives, as well as employees, former
employees, and their representatives, with access to the OSHA Logs and
year-end summaries, including the names of all injured and ill employees. The
former regulation permitted only government representatives to have access to
the supplemental incident reports (the former Form 101). Id.
Employees, former employees and their representatives had no right to inspect
and copy the incident reports, although employers were permitted to disclose
these forms if doing so was included in the terms of a collective bargaining
agreement. Id. The proposed rule. The proposed rule would have required employers to provide government
representatives, and employees, former employees, and their representatives,
with access to the unredacted OSHA Logs and summaries (61 FR 4061). The
proposal would have expanded the scope of the former rule's access provisions
by requiring employers to make available the incident reports (former OSHA
Form 101, renumbered Form 301 in the final rule) to employees, former
employees, and their designated representatives. Id. At the same time,
OSHA did not intend to provide access to the general public. The proposed
standard stated: "OSHA asks for input on possible methodologies for
providing easy access to workers while restricting access to the general
public" (61 FR 4048). The
access provisions of the proposed rule attracted considerable comment. Many
industry representatives argued that disclosure of information contained in
the injury and illness records to employees, former employees and their
representatives would violate an injured or ill employee's right, under the
Constitution and several statutes, to privacy. On the other hand, a number of
commenters emphasized the importance of the information contained in the
records to employees and unions in their voluntary efforts to uncover and
eliminate workplace safety and health hazards. The following paragraphs
discuss privacy and access issues, and their relationship to the
recordkeeping rule. The
Privacy Interest of the Injured or Ill Employee Whether,
and to what extent, the U.S. Constitution grants individuals a right of
privacy in personal information has not been firmly established. In Whalen
v. Roe, 429 U.S. 589 (1977), the Supreme Court considered whether a
New York law creating a central computer record of the names and addresses of
persons taking certain dangerous but lawful drugs violated the constitutional
privacy interest of those taking the drugs. The Court rejected the claim,
primarily because the state statute required that government employees with
access keep the information confidential and there was no basis to assume
that the requirement would be violated. 429 U.S. at 601, 605-606. Although
the decision does not say whether the Constitution affords protection against
disclosure of personal information, some language suggests that it does, at
least in some circumstances. The Court stated: The
cases sometimes characterized as protecting "privacy" have in fact
involved at least two different kinds of interests. One is the individual
interest in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of decisions. 429 U.S. at
598, 599. Recognizing
that in some circumstances th[e] duty [to avoid unwarranted disclosure of
personal matters] arguably has its roots in the Constitution, nevertheless
New York's statutory scheme, and its implementing administrative procedures,
evidence a proper concern with, and protection of, the individual's interest
in privacy. 429 U.S. at 605 A
subsequent case, Nixon v. Administrator of General Services,
433 U.S. 425 (1977), lends further support to the existence of a
constitutional right of privacy in personal information. At issue in Nixon
was a statute that required the former president to turn over both public and
private papers to an archivist who would review them and return any personal
materials. The Court appeared to acknowledge that Nixon had a
Constitutionally protected privacy right in personal information. 433 U.S. at
457. It upheld the statute because of the strong public interest in
preserving the documents and because the statute's procedural safeguards made
it unlikely that truly private materials would be disclosed to the public. A
number of federal circuit courts of appeals, building on Whalen and Nixon,
have held that individuals possess a qualified constitutional right to
confidentiality of personal information, including medical information. See, e.g.,
Paul v. Verniero, 170 F.3d 396, 402 (3d Cir. 1999); Norman-Bloodsay
v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998);
F.E.R. v. Valdez, 58 F.3d 1530, 1535 (10th Cir. 1995); John Doe v. City
of New York, 15 F.3d 264, 267 (2d Cir. 1994); Fadjo v. Coon,
633 F.2d 1172, 1175 (5th Cir. 1981). See also Anderson v. Romero,
72 F.3d 518, 522 (7th Cir. 1995) (noting holdings of federal circuits,
including seventh circuit, recognizing qualified constitutional right to
confidentiality in medical records, but finding it "not clearly
established" that prison inmate enjoyed such right in 1992). Of
the remaining circuits that have addressed the issue, only the Sixth has
squarely rejected a general constitutional right to nondisclosure of personal
information. E.g., J.P. v. DeSanti, 653 F.2d 1080, 1089
(6th Cir. 1981). Two circuits have expressed skepticism as to the existence
of such a right. See American Federation of Government Employees, AFL-CIO
v. Department of Housing and Urban Development, 118 F.3d 786, 788
(D.C. Cir. 1987) (expressing "grave doubt" whether the Constitution
protects against disclosure of personal information); Borucki v. Ryan,
827 F.2d 836, 845-846 (1st Cir. 1987) (noting lack of concrete guidance by
Supreme Court and disagreement among circuits on constitutional right of
confidentiality). See also Ferguson v. City of Charleston, S.C.,
186 F.3d 469, 483 (4th Cir.1999) (declining to decide whether individuals
possess a general constitutional right to privacy, noting circuit conflict). Where
the right to privacy is recognized, protection extends to information that
the individual would reasonably expect to remain confidential. Fraternal
Order of Police Lodge No. 5 v. City of Philadelphia, 812 F.2d 105,
112 (3d Cir. 1987); Mangels v. Pena, 789 F.2d 836, 839 (10th
Cir. 1986). "The more intimate or personal the information, the more
justified is the expectation that it will not be subject to public
scrutiny." Fraternal Order of Police, 812 F.2d at 105. Thus,
information about the state of a person's health, including his or her
medical treatment, prescription drug use, HIV status and related matters, is
entitled to privacy protection. See Paul v. Verniero, 170 F.3d
at 401-402 (collecting cases). See also Doe v. City of New York,
15 F.3d at 267 ("[T]here are few matters that are quite so personal as
the status of one's health, and few matters the dissemination of which one
would prefer to maintain greater control over.") The
right to privacy is not limited only to medical records. Other types of
records containing medical information are also covered. See, e.g., Whalen,
(computer tapes containing prescription drug information); Fraternal Order
of Police, 812 F.2d at 112 (police questionnaire eliciting information
about employee's physical and mental condition); Doe v. SEPTA,
72 F.3d 1133 (3d Cir. 1995) (utilization report listing prescription drugs dispensed
to employees under employer health plan). Moreover, personal financial data
and other types of private information may be subject to privacy protection
in certain cases. See Nixon v. Administrator of General Services,
433 U.S. 425, 455 (1977) (personal matters, including personal finances,
reflected in presidential papers); Paul v. Verniero, 170 F.3d
at 404 (home address of sex offender subject to disclosure under
"Megan's Law"); Fadjo v. Coon, 633 F.2d at 1175
(private details contained in subpoenaed testimony). A
finding that information is entitled to privacy protection is only the first
step in determining whether a disclosure requirement is valid. A balancing
test must be applied, which weighs the individual's interest in
confidentiality against the public interest in disclosure. Fraternal Order
of Police, 812 F.2d at 113. In evaluating the government's interest, at
least two factors must be considered; the purpose to be served by disclosure
of personal information to individuals authorized by law to receive it, and
the adverse effect of unauthorized public disclosure of such information. Id.
at 117, 118. Accord, Barry v. City of New York, 712 F.2d 1554,
1561-5162 (2d Cir. 1983). Thus, the fact that disclosure of highly personal
information to parties who have need for it serves an important public
interest is not sufficient justification for a disclosure requirement in the
absence of adequate safeguards against broader public access. Fraternal
Order of Police, 812 F.2d at 118 ("It would be incompatible with the
concept of privacy to permit protected information and material to be
publicly disclosed. The fact that protected information must be disclosed to
a party who has need for it * * * does not strip the information of its
protection against disclosure to those who have no similar need.") Balancing
the Interests of Privacy and Access OSHA
historically has recognized that the Log and Incident Report (Forms 300 and
301, respectively) may contain information of a sufficiently intimate and
personal nature that a reasonable person would wish it to remain
confidential. In its 1978 records access regulation (29 CFR 1910.1020), OSHA
addressed the privacy implications of its decision to grant employee access
to the Log. The agency noted that while Log entries are intended to be brief,
they may contain medical information, including diagnoses of specific
illnesses, and that disclosure to other employees, former employees or their
representatives raised a sensitive privacy issue. 43 FR 31327 (1978).
However, OSHA concluded that disclosure of the Log to current and former
employees and their representatives benefits these employees generally by
increasing their awareness and understanding of the health and safety hazards
to which they are, or have been, exposed. OSHA found that this knowledge
"will help employees to protect themselves from future
occurrences," and that "[i]n such cases, the right of privacy must
be tempered by the obvious exigencies of informing employees about the
effects of workplace hazards." Id. at 31327, 31328. The
proposed rule would have expanded the right of access of employees, former
employees, and their designated representatives beyond the Log to include the
Incident Report (Form 301) (61 FR 4061). OSHA discussed the potentially conflicting
interests involved, and explained its preliminary balancing of these
interests, as follows: OSHA's
historical practice of allowing employee access to all of the information on
the log permits employees and their designated representatives to be totally
informed about the employer's recordkeeping practices, and the occupational
injuries and illnesses recorded in the workplace. However, this total
accessibility may infringe on an individual employee's privacy interest. At
the same time, the need to access individual's Incident Records to adequately
evaluate the safety and health environment of the establishment has been
expressed. These
two interests -- the privacy interests of the individual employee versus the
interest in access to health and safety information concerning one's own
workplace -- are potentially at odds with one another. For injury and illness
recordkeeping purposes, OSHA has taken the position that an employee's
interest in access to health and safety information on the OSHA forms concerning
one's own workplace carries greater weight than an individual's right to
privacy. More complete access to the detailed injury and illness records has
the potential for increasing employee involvement in workplace safety and
health programs and therefore has the potential for improving working
conditions. Analysis of injury and illness data provides a wealth of
information for injury and illness prevention programs. Analysis by workers,
in addition to analyses by the employer, lead to the potential of developing
methods to diminish workplace hazards through additional or different
perspectives (61 FR 4048). The
proposal asked for comment on alternatives that would preserve broad access
rights while protecting fundamental privacy interests, including requiring
omission of personal identifying information for certain specific injury and
illness cases recorded on the Log, and restricting non-government access to
the Incident Reports to that portion of the Form 301 that does not contain
personal information. Ibid. OSHA
continues to believe that granting employees a broad right of access to
injury and illness records serves important public interests. There is
persuasive evidence that access by employees and their representatives to the
Log and the Incident Report serves as a useful check on the accuracy of the
employer's recordkeeping and promotes greater employee involvement in
prevention programs that contribute to safer, more healthful workplaces. For
example, the Building and Construction Trades Department, AFL-CIO stated
that: In
the main, the name of the employee is critically important to understanding
and verifying recordable cases. It is often necessary to speak with the
employee to explore the conditions that lead to the injury or illness, and
this is impossible without employee names. In addition, employees and unions
play an important role in assuring the proper administration of the
recordkeeping rule, and they cannot audit an employer's recordkeeping
performance without having access to employee names, which are necessary to
verify that all properly recordable cases are actually on the log, and to
verify that recorded cases are properly classified. (Ex. 15: 394, p. 35) Similarly,
the American Federation of State, County and Municipal Employees, AFL-CIO
stated that "[w]hen employees and their representatives have complete
access to the detailed injury and illness records, employee involvement in
workplace safety and health programs increases. Worker representatives use
the data on the forms to assist in the identification of specific hazards, as
well as other factors affecting workplace safety" (Ex.15: 362, p. 7). The
United Auto Workers (Ex. 15: 438) argued that the OSHA 301 incident reports
are as valuable as the log is in aiding voluntary enforcement efforts. The
UAW stated: The
OSHA 101 (proposed 301) form is an available data source on circumstances of
an injury or illness. The collected data contains information for prevention,
and also indicates the effectiveness of management's health and safety
program. The information on the OSHA [301] relevant to hazard identification
and control should be made available to employee representatives on the same
basis as they are made available to OSHA compliance officers. Personal data
on treatment details, physician's name, personal information on employee can
be recorded on the "other" side of the form and blanked out. The
Laborers' Health and Safety Fund (Ex. 15: 310) also emphasized the practical
value of the information contained in the Form 301: We
wholeheartedly support the specific language in the proposed rule allowing
designated representatives access to the OSHA 300 and 301 forms. In a project
we administered to determine the major causes of serious injuries and
illnesses in road construction under a Federal Highway Administration grant,
several employers would not allow access to even information from the injured
person's 101 workers compensation equivalent form, because the form contained
other information such as the employee's age and salary. The event
information contained in the 301 form is critical in determining the hazards
and possible preventive measures. Other
commenters also supported the proposal's approach of broadening employee
access to records (see, e.g. Exs. 24; 36; 15: 350, 380, 418). Recognition
of the important purpose served by granting access to injury and illness
records does not end the analysis. The public interest that is served when
information contained in the records is used to promote safety and health
must be balanced against the possible harm that would result from the misuse
of private information. There are two ways in which harm could occur. First,
the information could be used for unauthorized purposes, such as to harass or
embarrass employees. Second, employees and their representatives with access
to records could, deliberately or inadvertently, disclose private information
to others who have no need for it. Several
commenters indicated concern about the unauthorized disclosure of private
material contained in the injury and illness records. The joint comments
filed by the National Broiler Council and the National Turkey Council express
the view shared by many employers: There
is universal support among employees and employers for the communication of
information about workplace illnesses and injuries. It also seems apparent
that there is universal opposition to the communication of personal
information about individuals involved in those incidents. There are many
circumstances in the workplace where employees have no desire for fellow
employees to know the extent, description, or type of injury or illness they
have incurred. The reasons for an employee's concern about his or her
personal privacy may vary but almost always find their foundation in very
strong and personal emotions. One example that clearly illustrates this point
would be the employee who has experienced an exposure incident under the
bloodborne pathogens standard. Most people would not want it to be known that
they may have been exposed to HIV, let alone if they tested positive for HIV.
* * * In addition to the concerns about how this information could be used by
other individuals, employers also have very serious concerns about the misuse
of this information by individuals or organizations for purposes in no way
related to the issue of workplace health and safety (Ex. 15: 193, pp. 4-5). A
number of commenters argued that granting access to the Log and Incident
Report to employees, former employees and their representatives will deter
employees from reporting their injuries and illnesses, especially in cases
involving exposure to bloodborne pathogens and injuries and illnesses
involving reproductive organs (see, e.g., Exs. 15-185, 15-193, 15-238,
15-239, 15-305). A representative of the Middlesex Convalescent Center wrote: [R]equiring
employers to disclose personal identifiers (which include name and
occupation) will result in fewer people reporting injuries and
illnesses because employees will feel shame or embarrassment for being
involved in an accident. * * * Additionally, employees who do not want
co-workers to know their physical handicaps and other personal business will
choose not to report accidents, including those in which the employee is not
at fault (Ex. 15: 23 (emphasis in original)). There
exist at present no mechanisms to protect against unwarranted disclosure of
private information contained in OSHA records. While Agency policy is that
employees and their representatives with access to records should treat the
information contained therein as confidential except as necessary to further
the purposes of the Act, the Secretary lacks statutory authority to enforce
such a policy against employees and representatives (e.g. 29 U.S.C. §§
658, 659) (Act's enforcement mechanisms directed solely at employers). Nor
are there present here other types of safeguards that have been held to be
adequate to protect against misuse of private material. See Whalen,
589 U.S. at 605 ("The right to collect and use [private] data for public
purposes is typically accompanied by a concomitant statutory or regulatory
duty to avoid unwarranted disclosures.") See also Fraternal Order of
Police, 812 F.2d at 118 (appropriate safeguards could include statutory
sanctions for unauthorized disclosures, security provisions to prevent mishandling
of files, coupled with express regulatory prohibition on disclosure, or
procedures such as storage of private material in locked cabinets with
automatic removal and destruction within six months); In re Search Warrant
(Sealed), 810 F.2d 67, 72 (3d Cir. 1987) (district court order that
medical records and related information be kept confidential except as
disclosure was reasonably required in connection with criminal
investigation). The
degree of harm that could result from unauthorized use or disclosure of
information on the Log and Incident Report varies depending upon the nature
and sensitivity of the injury or illness involved. An employee might
reasonably have little to fear from disclosure of a garden-variety injury or
illness of the kind that one might sustain in everyday life. Cf. Wilson
v. Pennsylvania State Police Department, 1999 WL 179692 (E.D.Pa)
(vision-related information not as intimate as other types of medical
information, and less likely to result in harm if disclosed to the public). However,
there is a much greater risk that social stigma, harassment and
discrimination could result from public knowledge that one has, or may have,
AIDS, has been the victim of a sexual assault, or has suffered an injury to a
reproductive organ or other intimate body part. See, e.g. Doe
v. SEPTA, 712 F.2d at 1140 (AIDS); New Jersey Bell Telephone Co.
v. NLRB, 720 F.2d 789, 790 (3d Cir. 1983) (reasons given by employees
for absence or tardiness included colitis, insertion of urethral tubes,
vaginal infections, scalded rectal areas, and heart problems). OSHA
has concluded that the disclosure of occupational injury and illness records
to employees and their representatives serves important public policy
interests. These interests support a requirement for access by employees and
their representatives to personally identifiable information for all but a
limited number of cases recorded on the Log, and to all information on the
right-hand side of the Form 301. However, OSHA also concludes that prior
Agency access policies may not have given adequate consideration to the harm
which could result from disclosure of intimate medical information. In the
absence of effective safeguards against unwarranted use or disclosure of
private information in the injury and illness records, confidentiality must
be preserved for particularly sensitive cases. These "privacy concern
cases" listed in paragraph 1904.29 (b)(7) of the final rule involve
diseases, such as AIDS and hepatitis, other illnesses if the employee
voluntarily requests confidentiality, as well as certain types of injuries,
the disclosure of which could be particularly damaging or embarrassing to the
affected employee. MSDs are not included in privacy concern cases because
OSHA's ergonomics rule independently provides for access by employees and
their representatives to the names of workers who report work-related MSDs. (See
29 CFR 1910.900(v)(1) and (2.) The
record supports this approach. For example, API recommended that OSHA protect
employee confidentiality for cases involving HIV, fertility problems,
bloodborne pathogens, seroconversions, and impotence (Ex. 15: 375). OSHA
agrees that employee confidentiality should be protected in these and similar
cases. Therefore, the final rule requires that the employer withhold the
employee's name from the OSHA 300 Log for each "privacy concern
case," and maintain a separate confidential list of employee names and
case numbers. In all other respects, the final rule ensures full access to
the OSHA Log by employees, former employees, personal representatives and
authorized employee representatives. Protections
Against Broad Public Access In
the proposal, OSHA noted that the access requirements were intended as a tool
for employees and their representatives to affect safety and health
conditions at the workplace, not as a mechanism for broad public disclosure
of injury and illness information. (61 FR 4048.) A number of commenters
suggested that OSHA should include specific language in the final rule
protecting employee confidentiality whenever injury and illness data are
disclosed for other than safety or health purposes, or to persons other than
those who have a legitimate need to know. Dow argued that: OSHA
should allow an employer to develop a system that will protect personal
identifiers and other non-safety or health related information. Further, such
information should only be available for the specific use by an OSHA
inspector who is reviewing an employer's logs during an inspection, medical
personnel, the employer's incident investigation designated officials, and
the individual's supervisor. Outside of these individuals, access should be
granted only after written authorization from the injured or ill employee has
been obtained. This approach would allow those individuals who have a
legitimate "need to know" limited access to the information (Ex.. 15:
335). Other
commenters suggested requiring that employee names be shielded if the forms
are disclosed to third parties (see, e.g., Exs. 15: 374, 375). OSHA
agrees that confidentiality of injury and illness records should be
maintained except for those persons with a legitimate need to know the
information. This is a logical extension of the agency's position that a
balancing test is appropriate in determining the scope of access to be
granted employees and their representatives. Under this test, "the fact
that protected information must be disclosed to a party who has need for it*
* * does not strip the information of its protection against disclosure to
those who have no similar need." Fraternal Order of Police, 812
F2d at 118. OSHA
has determined that employees, former employees and authorized employee
representatives have a need for the information that justifies their access
to records, including employee names, for all except privacy concern cases. While
the possibility exists that employees and their representatives with access
to the records could disclose the information to the general public, OSHA
does not believe that this risk is sufficient to justify restrictions on the
use of the records by persons granted access under sections 1904.40 and
1904.35. As discussed in the following section, strong policy and legal
considerations militate against placing restrictions on employees' and
employee representatives' use of the injury and illness information. There
is also a concern that employers may voluntarily grant access to OSHA records
to persons outside their organization, who do not need the information for
safety and health purposes. To protect employee confidentiality in these
circumstances, paragraph 1904.29(b)(10) requires employers generally to
remove or shield employee names and other personally identifying information
when they disclose the OSHA forms to persons other than government
representatives, employees, former employees or authorized employee
representatives. Employers remain free to disclose unredacted records for
purposes of evaluating a safety and health program or safety and health
conditions at the workplace, processing a claim for workers' compensation or
insurance benefits, or carrying out the public health or law enforcement
functions described in section 164.512 of the final rule on Standards for
Privacy of Individually Identifiable Health Information. OSHA
believes that this provision protects employee privacy to a reasonable degree
consistent with the legitimate business needs of employers and sound public
policy considerations. The record does not demonstrate that routine access by
the general public to personally identifiable injury and illness data is
necessary or useful. Indeed, several prominent industry representatives
stated that the OSHA log should not be made available to the general public. See
Ex. 335 (Dow); Ex. 15-375 (API). Furthermore, employers are always free to
seek authorization from employees to disclose their names in particular
cases. Thus, employers retain a degree of flexibility to tailor their
voluntary disclosure policies to meet exigent circumstances. Misuse
of the Records by Employees and Their Representatives Several
commenters were concerned about inappropriate uses of the records once they
are released to employees (see, e.g., Exs. 15: 9, 39, 102, 185, 193,
201, 304, 305, 317, 321, 330, 341, 346, 359, 363, 375, 389, 397, 412, 413,
423, 424, 431). The American Petroleum Institute stated: "API has
concerns about potentials for uncontrolled and unscrupulous use of these data
for purposes unrelated to safety and health -- uses such as for
plaintiff-lawyer "fishing expeditions", in union organizing
attempts, to create adverse publicity as contracts expire, or to foster other
special interests" (Ex. 15: 375). Several commenters stated that
information requests could be used as a harassment by unions (see, e.g.,
Exs. 15: 9, 201, 317, 423, 424), and the Caterpillar Corporation (Ex. 15:
201) related its labor management difficulties during a recent strike (Ex.
15: 201). The American Crystal Sugar Company (Ex. 15 363) expressed concern
that "there have been instances where an employee is paid a finder's fee
to identify possible cases for personal injury lawyers." A few
commenters suggested methods to solve these potential misuse problems,
including a requirement for all information requests to be made in writing
(see, e.g., Exs. 15: 163, 235, 281, 397). Two commenters suggested
requirements for the employee or employee representative to sign a pledge not
to misuse the information (Exs. 15: 359, 389). For example, the Waste
Management, Inc. Company suggested that "OSHA should require the
individual(s) obtaining a copy of the log or record to certify that the
information will be maintained in confidence and will not be released to a
third party under any circumstances under penalty of law. OSHA shall also
promulgate severe penalties for violation" (Ex. 15: 389). While
there may be instances where employees share the data with third parties who
normally would not be allowed to access the data directly, the final rule
contains no enforceable restrictions on use by employees or their
representatives. Employees and their representatives might reasonably fear
that they could be found personally liable for violations of such
restrictions. This would have a chilling effect on employees' willingness to
use the records for safety and health purposes, since few employees would
voluntarily risk such liability. Moreover, despite the concerns of commenters
about abuse problems, OSHA has not noted any significant problems of this
type in the past. This suggests that, if such problems exist, they are
infrequent. In addition, as noted in the privacy discussion above, a
prohibition on the use of the data by employees or their representatives is
beyond the scope of OSHA's enforcement authority. For these reasons, the
employer may not require an employee, former employee or designated employee
representative to agree to limit the use of the records as a condition for
viewing or obtaining copies of records. OSHA
has added a statement to the Log and Incident Report forms indicating that
these records contain information related to employee health and must be used
in a manner that protects the confidentiality of employees to the extent
possible while the information is used for occupational safety and health
purposes. This statement is intended to inform employees and their
representatives of the potentially sensitive nature of the information in the
OSHA records and to encourage them to maintain employee confidentiality if
compatible with the safety and health uses of the information. Encouraging
parties with access to the forms to keep the information confidential where
possible is reasonable and should not discourage the use of the information
for safety and health purposes. OSHA stresses, however, that the statement
does not reflect a regulatory requirement limiting the use of records by
those with access under sections 1904.35 and 1904.40. The
Records Access Requirement and the ADA Several
commenters alleged that a requirement that individually identifiable injury
and illness records be disclosed to employees and union representatives would
conflict with the confidentiality provisions of the Americans With
Disabilities Act, 42 U.S.C. §§ 12112 (d)(3)(B), (d)(4)(C) (1994 ed. and Supp.
III) (ADA) (see, e.g., Exs. 15: 64, 290, 304, 315, 397). Section
12112(d)(3)(B) of the ADA permits an employer to require a job applicant to
submit to a medical examination after an offer of employment has been made
but before commencement of employment duties, provided that medical
information obtained from the examination is kept in a confidential medical
file and not disclosed except as necessary to inform supervisors, first aid
and safety personnel, and government officials investigating compliance with
the ADA. Section 12112(d)(4)(C) requires that the same confidentiality
protection be accorded health information obtained from a voluntary medical
examination that is part of an employee health program. By
its terms, the ADA requires confidentiality for information obtained from
medical examinations given to prospective employees, and from medical
examinations given as part of a voluntary employee health program. The OSHA
injury and illness records are not derived from pre-employment or voluntary
health programs. The information in the OSHA injury and illness records is
similar to that found in workers' compensation forms, and may be obtained by
employers by the same process used to record needed information for workers'
compensation and insurance purposes. The Equal Employment Opportunity
Commission (EEOC) recognizes a partial exception to the ADA's strict
confidentiality requirements for medical information regarding an employee's
occupational injury or workers' compensation claim. See EEOC Enforcement
Guidance: Workers' Compensation and the ADA, 5 (September 3, 1996). Therefore,
it is not clear that the ADA applies to the OSHA injury and illness records. Even
assuming that the OSHA injury and illness records fall within the literal
scope of the ADA's confidentiality provisions, it does not follow that a
conflict arises. The ADA states that "nothing in this Act shall be
construed to invalidate or limit the remedies, rights, and procedures of any
Federal law. * * *" 29 U.S.C. 12201(b). In enacting the ADA, Congress
was aware that other federal standards imposed requirements for testing an
employee's health, and for disseminating information about an employee's
medical condition or history, determined to be necessary to preserve the
health and safety of employees and the public. See H.R. Rep. No. 101-485 pt.
2, 101st Cong., 2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N.
356, 357 (noting, e.g. medical surveillance requirements of standards
promulgated under OSH Act and Federal Mine Safety and Health Act, and stating
"[t]he Committee does not intend for [the ADA] to override any medical
standard or requirement established by Federal * * * law * * * that is
job-related and consistent with business necessity"). See also 29 CFR
part 1630 App. p. 356. The ADA recognizes the primacy of federal safety and
health regulations; therefore such regulations, including mandatory OSHA
recordkeeping requirements, pose no conflict with the ADA. Cf. Albertsons,
Inc. v. Kirkingburg, 527 U.S. 555, (1999) ("When Congress
enacted the ADA, it recognized that federal safety and health rules would
limit application of the ADA as a matter of law.") The
EEOC, the agency responsible for administering the ADA, has recognized both
in the implementing regulations at 29 CFR part 1630, and in interpretive
guidelines, that the ADA yields to the requirements of other federal safety
and health standards. The implementing regulation codified at 29 CFR
1630.15(e) explicitly states that an employer's compliance with another
federal law or regulation may be a defense to a charge of violating the the
ADA: (e)
Conflict with other Federal laws. It may be a defense to a charge of discrimination
under this part that a challenged action is required or necessitated by
another Federal law or regulation, or that another Federal law or regulation
prohibits an action (including the provision of a particular reasonable
accommodation) that would otherwise be required by this part. Interpretive
guidance provided by the EEOC further underscores this point. The 1992
Technical Assistance Manual on Title I of the ADA states as follows: 4.6 Health and Safety Requirements of Other Federal or State Laws The
ADA recognizes employers' obligations to comply with requirements of other
laws that establish health and safety standards. However, the [ADA] gives
greater weight to Federal than to state or local law. 1.
Federal Laws and Regulations The
ADA does not override health and safety requirements established under other
Federal laws. If a standard is required by another Federal law, an employer
must comply with it and does not have to show that the standard is job
related and consistent with business necessity (emphasis added). U.S.
Equal Employment Opportunity Commission, A Technical Assistance Manual on
the Employment Provisions (Title I) of the Americans With Disabilities Act,
IV-16 (1992) (Technical Assistance Manual). The Technical Assistance Manual
also states that, while medical-related information about employees must
generally be kept confidential, an exception applies where "[o]ther
Federal laws and regulations * * * require disclosure of relevant medical
information." Assistance Manual at VI-12. See also Assistance Manual at
VI-14-15 (actions taken by employers to comply with requirements imposed
under the OSH Act are job related and consistent with business necessity). For
these reasons, OSHA does not believe that the mandatory employee access
provisions of the final recordkeeping rule conflict with the provisions of
the ADA. Times
Allowed To Provide Records In
its proposal, OSHA would have required the employer to allow the employee to
view the 300 Log and the Form 301 records by the end of the next business day
and provide copies within seven calendar days. An employer would have been
required to provide access to the 301 forms for all injuries and illnesses
"in a reasonable time" (61 FR 4061). Several commenters agreed with
OSHA's proposed times for providing copies of the records to employees and
their representatives (see, e.g., Exs. 15: 213, 277, 359). For
example, Consolidated Edison (Ex. 15: 213) stated that "[t]he time
limits in the proposal are acceptable but [Con Ed] recommends that a time
limit of seven days be included at [proposed] paragraph 1904.11(b)(5) [which
addressed the copying of 301 forms] rather than the vague "reasonable
time" included in the text." A
number of commenters disagreed with OSHA's proposed times for providing
copies of the records (see, e.g., Exs. 15: 195, 201, 213, 218, 226,
235, 326, 347, 369, 370, 389, 409, 423, 425, 440). These commenters suggested
a variety of times, including four hours (Ex. 15: 369), 24 hours (Ex. 15:
425), two workdays (Ex. 15: 226), five working days (Ex. 15: 235), within
seven calendar days or one week (Ex. 15: 195, 370), 15 days to match the
requirements of the OSHA medical records access rule (Ex. 15: 218, 347, 409,
423), and 21 days (Ex. 15: 389). The International Brotherhood of Teamsters
(Ex. 15: 369) suggested that "[e]mployees and their designated
representatives be provided with the same access rule as proposed for
governmental officials, RE: obtain copies of logs four hours after the
request." The
Tennessee Valley Authority (TVA) argued that "[a]ll requests for records
should be made in writing and the information provided to the authorized
requester within five working days. This provides the documentation for who
received the information and reduces the burden on the employer" (Ex.
15: 235). Bell Atlantic Network Services, Inc. (Ex. 15: 218) recommended that
"OSHA should simplify the very confusing and differing
"access" and "copies" schedule to an uniform 15 working
days as is the requirement in 29 CFR 1910.20, Access to Employee Exposure and
Medical Records." In
addition, the Caterpillar Company (Ex. 15: 201) recommended that the final
rule should not establish time frames at all, stating that "The time
limit of providing access by the close of business on the next scheduled
workday is unnecessarily restrictive. Noncompliance situations could be
generated by simple work schedule conflicts or other minor difficulties. The
access period should be stated as a reasonable time period allowing employees
and employers adequate flexibility." Under
the final rule, an employer must provide a copy of the 300 Log to an
employee, former employee, personal representative or authorized employee
representative on the business day following the day on which an oral or
written request for records is received. Likewise, when an employee, former
employee or personal representative asks for copies of the 301 form for an
injury or illness to that employee, the employer must provide a copy by the
end of the next business day. OSHA finds that these are appropriate time
frames for supplying a copy of the existing forms, which in the case of the
Form 301 is a single page. The average 300 Log is also only one page,
although employers who have a larger number of occupational injuries and
illnesses will have more than one page. The
final rule allows the employer seven business days to provide copies of the
OSHA 301 forms for all occupational injuries and illnesses that occur at the
establishment. Several commenters stated that there is additional burden for
these large requests (see, e.g., Exs. 15: 172, 260, 262, 265, 294,
297, 401). For example, the Boeing Corporation stated that "[s]ince
Boeing is a large employer with several thousand employees at several sites,
(up to 30,000 at one site), the administrative burden could be immense,
particularly, if large numbers of records are requested by several employees.
For example, if 100 employees requested ten thousand 301 forms, one million
records would have to be available. This requirement is simply not
administratively realistic." OSHA agrees that, because these records may
involve more copying, the employer needs more time to produce copies of the
301 forms. In addition, as stated in the final rule, the employer may not
provide the authorized employee representative with the information on the
left side of the 301 form, so the employer needs additional time to redact
this information. Because the final rule only provides a right of access to
an authorized employee representative (authorized collective bargaining
agent), the number of requests should not exceed the number of unions
representing employees at the establishment. Thus, the multiple request
problem envisioned by Boeing should not surface. In addition, OSHA expects
that, in large plants such as the one described by Boeing, the authorized
employee representatives will ask for the data on a periodic basis, either
monthly or quarterly, so the data requested at one time will be limited. In
addition, the employer must provide only one free copy. If additional copies
are requested, the employer may charge for the copies. Charging
Employees for Copies of the OSHA Records The
proposal also required the employer to provide copies without cost, or
provide access to copying facilities without charge, or allow the employee or
representative to take the records off site to make copies (61 FR 4061). Linda
Ballas (Ex. 15: 31) commented that the copies should be provided at no cost
to the employee. Several commenters stated that employees who access the
records should pay for them (see, e.g., Exs. 15: 151, 152, 179, 180,
201, 226, 317, 397, 424). Atlantic Marine, Inc. stated: "Providing
copies of records without cost to individuals may produce an undue
administrative and financial burden for some employers. Although there is
merit to providing information access to employees, the charging of a fee not
to exceed the actual cost for duplicating the documents may deter unnecessary
or frivolous requests" (Ex. 15: 151). The United Parcel Service Company
(Ex. 15: 424) stated that: [i]f
expanded access to safety and health records is afforded, certainly such
access should not be at the employer's cost. This is an unfair burden on the
employer, and will encourage improper, harassing requests. These risks are
not alleviated by the alternative of permitting the employer to give its
records to the requesting party to copy, Proposed § 1904.11(b)(3)(iii), 61
Fed. Reg. at 4061, since employers often will be reluctant to entrust their
only original copies to a current or former employee. (Ex. 15: 424) In
the final rule, OSHA has implemented the proposed provision requiring
employers to provide copies free of charge to employees who ask for the
records. The costs of providing copies is a minimal expense, and employees
are more likely to access the data if it is without cost. In addition,
allowing the employer to charge for copies of the OSHA records would only
serve to delay production of the records. Providing free copies for employees
thus helps meet one of the major goals of this rulemaking; to improve
employee involvement. However, OSHA agrees that there are some circumstances
where employers should have the option of charging for records. After
receiving an initial, free copy of requested records, an employee, former
employee, or designated representative may be charged a reasonable search and
copying fee for duplicate copies of the records. However, no fee may be
charged for an update of a previously requested record. Section 1904.37 State Recordkeeping Regulations Section
1904.37 addresses the consistency of the recordkeeping and reporting
requirements between Federal OSHA and those States where occupational safety
and health enforcement is provided by an OSHA-approved State Plan. Currently,
in 21 States and 2 territories, the State government has been granted
authority to operate a State OSHA Plan covering both the private and public
(State and local government) sectors under section 18 of the OSH Act (see the
State Plan section of this preamble for a listing of these States). Two
additional States currently operate programs limited in scope to State and
local government employees only. State Plans, once approved, operate under
authority of State law and provide programs of standards, regulations and
enforcement which must be "at least as effective" as the Federal
program. (State Plans must extend their coverage to State and local
government employees, workers not otherwise covered by Federal OSHA
regulations.) Section 1904.37 of the final rule describes what State Plan
recordkeeping requirements must be identical to the Federal requirements,
which State regulations may be different, and provides cross references to
the State Plan regulations codified in Section 1902.3(k), 1952.4, and
1956.10(i). The provisions of Subpart A of 29 CFR part 1952 specify the
regulatory discretion of the State Plans in general, and section 1952.4
spells out the regulatory discretion of the State Plans specifically for the
recordkeeping regulation. In
the final rule, OSHA has rewritten the text of the corresponding proposed section
and moved it into Subpart D of the final rule. Under Section 18 of the OSH
Act, a State Plan must require employers in the State to make reports to the
Secretary in the same manner and to the same extent as if the Plan were not
in effect. Final section 1904.37 makes clear that States with approved State
Plans must promulgate new regulations that are substantially identical to the
final Federal rule. State Plans must have recording and reporting regulations
that impose identical requirements for the recordability of occupational
injuries and illnesses and the manner in which they are entered. These
requirements must be the same for employers in all the States, whether under
Federal or State Plan jurisdiction, and for State and local government
employers covered only through State Plans, to ensure that the occupational
injury and illness data for the entire nation are uniform and consistent so
that statistics that allow comparisons between the States and between
employers located in different States are created. For
all of the other requirements of the Part 1904 regulations, the regulations
adopted by the State Plans may be more stringent than or supplemental to the
Federal regulations, pursuant to paragraph 1952.4(b). This means that the
States' recording and reporting regulations could differ in several ways from
their Federal Part 1904 counterparts. For example, a State Plan could require
employers to keep records for the State, even though those employers are
within an industry exempted by the Federal rule. A State Plan could also
require employers to keep additional supplementary injury and illness
information, require employers to report fatality and multiple
hospitalization incidents within a shorter timeframe than Federal OSHA does,
require other types of incidents to be reported as they occur, or impose
other requirements. While a State Plan must assure that all employee
participation and access rights are assured, the State may provide broader
access to records by employees and their representatives. However, because of
the unique nature of the national recordkeeping program, States must secure
Federal OSHA approval for these enhancements. The
final rule eliminates paragraph (b) of section 1904.14 of the proposed rule. Proposed
paragraph (b) stated that records maintained under State Plan rules would be
considered to be in compliance with the Federal rule. OSHA has eliminated
paragraph (b) as unnecessary because it is redundant to state that the
records kept under State law will be acceptable; since State regulations must
be identical to, or more stringent than the Federal regulations, compliance
by private sector employers with approved State laws would by definition
constitute compliance with the Federal regulations. Paragraph (c), which
deals with public sector recording and reporting requirements in both
comprehensive State Plans (those covering both the private and public sector
employees) and those which are limited to the public sector (State and local
government), has been reworded and moved to 1904.37(b)(3). Because
Federal OSHA does not provide coverage to State and local government
employees, the State-Plan States may grant State recordkeeping variances to
the State and local governments under their jurisdiction. However, the State
must obtain concurrence from Federal OSHA prior to issuing any such
variances. In addition, the State-Plan States may not grant variances to any
other employers and must recognize all 1904 variances granted by Federal
OSHA. These steps are necessary to ensure that the injury and illness data
requirements are consistent from State to State. Rulemaking
comments on this issue were unanimous in supporting identical State and
Federal regulations for recordkeeping. Multi-State employers and their
representatives, such as US West, Lucent Technologies, AT&T, and the
National Association of Manufacturers, thought that identical State
regulations would simplify and reduce their recordkeeping burdens (see, e.g.,
Exs. 15: 194, 272, 303, 305, 346, 348, 358, 375). OSHA
understands the advantages to multi-State businesses of following identical
OSHA rules in both Federal and State Plan jurisdictions, but also recognizes
the value of allowing the States to have different rules to meet the needs of
each State, as well as the States' right to impose different rules as long as
the State rule is at least as effective as the Federal rule. Accordingly, the
Part 1904 rules impose identical requirements where they are needed to create
consistent injury and illness statistics for the nation and allows the States
to impose supplemental or more stringent requirements where doing so will not
interfere with the maintenance of comprehensive and uniform national
statistics on workplace fatalities, injuries and illnesses. Section 1904.38 Variances From the Recordkeeping Rule Section
1904.38 of the final rule explains the procedures employers must follow in
those rare instances where they request that OSHA grant them a variance or
exception to the recordkeeping rules in Part 1904. The rule contains these procedures
to allow an employer who wishes to maintain records in a manner that is
different from the approach required by the rules in Part 1904 to petition
the Assistant Secretary. Section 1904.8 allows the employer to apply to the
Assistant Secretary for OSHA and request a Part 1904 variance if he or she
can show that the alternative recordkeeping system: (1) Collects the same
information as this Part requires; (2) Meets the purposes of the Act; and (3)
Does not interfere with the administration of the Act. The
variance petition must include several items, namely the employer's name and
address; a list of the State(s) where the variance would be used; the
addresses of the business establishments involved; a description of why the
employer is seeking a variance; a description of the different recordkeeping
procedures the employer is proposing to use; a description of how the
employer's proposed procedures will collect the same information as would be
collected by the Part 1904 requirements and achieve the purpose of the Act;
and a statement that the employer has informed its employees of the petition
by giving them or their authorized representative a copy of the petition and
by posting a statement summarizing the petition in the same way notices are
posted under paragraph 1903.2(a). The
final rule the describes how the Assistant Secretary will handle the variance
petition by taking the following steps: --
The Assistant Secretary will offer employees and their authorized
representatives an opportunity to comment on the variance petition. The
employees and their authorized representatives will be allowed to submit
written data, views, and arguments about the petition. --
The Assistant Secretary may allow the public to comment on the variance
petition by publishing the petition in the Federal Register. If the
petition is published, the notice will establish a public comment period and
may include a schedule for a public meeting on the petition. --
After reviewing the variance petition and any comments from employees and the
public, the Assistant Secretary will decide whether or not the proposed
recordkeeping procedures will meet the purposes of the Act, will not
otherwise interfere with the Act, and will provide the same information as
the Part 1904 regulations provide. If the procedures meet these criteria, the
Assistant Secretary may grant the variance subject to such conditions as he
or she finds appropriate. --
If the Assistant Secretary grants the variance petition, OSHA will publish a
notice in the Federal Register to announce the variance. The notice
will include the practices the variance allows, any conditions that apply,
and the reasons for allowing the variance. The
final rule makes clear that the employer may not use the proposed
recordkeeping procedures while the Assistant Secretary is processing the
variance petition and must wait until the variance is approved. The rule also
provides that, if the Assistant Secretary denies the petition, the employer
will receive notice of the denial within a reasonable time and establishes
that a variance petition has no effect on the citation and penalty for a
citation that has been previously issued by OSHA and that the Assistant
Secretary may elect not to review a variance petition if it includes an
element which has been cited and the citation is still under review by a
court, an Administrative Law Judge (ALJ), or the OSH Review Commission. The
final rule also states that the Assistant Secretary may revoke a variance at
a later date if the Assistant Secretary has good cause to do so, and that the
procedures for revoking a variance will follow the same process as OSHA uses
for reviewing variance petitions. Except in cases of willfulness or where
necessary for public safety, the Assistant Secretary will: Notify the employer
in writing of the facts or conduct that may warrant revocation of a variance
and provide the employer, employees, and authorized employee representatives
with an opportunity to participate in the revocation procedures. The
final rule differs somewhat from the variance section of the former rule. The
text of the previous rule gave the Bureau of Labor Statistics authority to
grant, deny, and revoke recordkeeping variances and exceptions. Under the
former rule, applicants were required to petition the Regional Commissioner
of the Department of Labor's Bureau of Labor Statistics (BLS) for the region
where the establishment was located. Petitions that stretched beyond the
regional boundary were referred to the BLS Assistant Commissioner. These
responsibilities were transferred to OSHA in 1990 (Memorandum of
Understanding between OSHA and BLS, 7/11/90) (Ex. 6), but the variance
section of the rule itself was not amended at that time. This section of the
final rule codifies the shift in responsibilities from the BLS to OSHA with
regard to variances. Like
the former variance section of the rule, the final rule does not specifically
note that the states operating OSHA-approved state plans are not permitted to
grant recordkeeping variances. Paragraph (b) of former section 1952.4, OSHA's
rule governing the operation of the State plans, prohibited the states from
granting variances, and paragraph (c) of that rule required the State plans
to recognize any Federal recordkeeping variances. The same procedures
continue to apply to variances under section 1904.37 and section 1952.4 of
this final rule. OSHA has not included the provisions from these two sections
in the variance sections of this recordkeeping rule, because doing so would
be repetitive. The
final rule adds several provisions to those of the former rule. They include
(1) the identification of petitioning employers' pending citations in State
plan states, (2) the discretion given to OSHA not to consider a petition if a
citation on the same subject matter is pending, (3) the clarification that
OSHA may provide additional notice via the Federal Register and
opportunity for comment, (4) the clarification that variances have only
prospective effect, (5) the opportunity of employees and their
representatives to participate in revocation procedures, and (6) the voiding
of all previous variances and exceptions. Variance
procedures were not discussed in the Recordkeeping Guidelines (Ex. 2),
nor have there been any letters of interpretations or OSHRC or court
decisions on recordkeeping variances. As noted in the proposal, at 61 FR
4039, only one recordkeeping variance has ever been granted by OSHA. This
variance was granted to AT&T and subsequently expanded to its Bell
subsidiaries to enable them to centralize records maintenance for workers in
the field. The
final rule does not adopt the approach to variances proposed by OSHA in 1996
(see section 1904.15 of the proposal). OSHA proposed to eliminate the
variance and exception procedure from the recordkeeping rules altogether and
instead to require all variances and exceptions to the recordkeeping rule to
be processed under OSHA's general variance regulations, which are codified at
29 CFR Part 1905. As stated in the proposal, OSHA believed that this change
would streamline the final recordkeeping rule and eliminate duplicate
procedures for obtaining variances. OSHA also proposed to amend paragraph
1952.4(c) to make clear that employers were required to obtain all
recordkeeping variances or exceptions from OSHA instead of from the BLS. OSHA
received very few comments on the proposed changes to the variance
procedures. Some commenters approved the proposed approach but did not
comment on its merits (see, e.g., Exs. 15: 133, 136, 137, 141, 224,
266, 278). The International Dairy Foods Association (IDFA) supported the
change if "it is indeed * * * a duplicative section" and "no
significant change will occur by deleting the provision" (Ex. 15: 203). Another
commenter stated that "no employer should be exempt from record keeping
and I cannot imagine what kind of variance for record keeping exceptions
could exist. I am requesting that this proposal be removed from the
standard" (Ex. 15: 62). The Air Transport Association urged "OSHA *
* * [to] permit [airline] companies to keep records according to location or
division * * * and without the need to seek and acquire variances, so long as
records can be retrieved in a reasonable time for OSHA oversight
purposes" (Ex. 15: 378). OSHA
has decided, after further consideration, to continue to include a specific
recordkeeping variance section in the final rule, and not to require
employers who wish a recordkeeping variance or exception to follow the more
rigorous procedures in 29 CFR part 1905. The procedures in Part 1905, which
were developed for rules issued under sections 6 and 16 of the OSH Act, may
not be appropriate for rules issued under section 8 of the Act, such as this
recordkeeping rule. The
final rule thus retains a section on variance procedures for the
recordkeeping rule. OSHA believes that few variances or exceptions will be
granted under the variance procedures of the final rule because other
provisions of the final rule already reflect many of the alternative
recordkeeping procedures that employers have asked to use over the years, such
as electronic storage and transmission of data, centralized record
maintenance, and the use of alternative recordkeeping forms. Because these
changes have been made to other sections of the final rule, there should be
little demand for variances or exceptions. As OSHA noted in the proposal (61
FR 4039) in relation to the AT&T variance, "[t]he centralization of
records provision contained in this proposal [and subsequently adopted in the
final rule] will eliminate the continued need for this variance." Similarly,
the changes in paragraphs 1904.3(e) and (f) of the final rule that permit
substitute forms and computerization of recordkeeping by employers, combined
with the changes in paragraph 1904.30(c) that allow for recordkeeping at a
central location will accommodate the Air Transport Association's request
that OSHA "permit airline companies to keep records according to
location or division * * * without the need to seek and acquire
variances" (Ex. 15: 378). Under the final rule, companies are still
required to summarize their injury and illness records for individual
establishments, but may also produce records for separate administrative
units if they wish to do so. Centralized and computerized recordkeeping
systems make this a relatively simple task when compared to paper-driven and
decentralized systems. The
final changes to the variance section of the former rule are minor. The
primary change is to make clear that OSHA, rather than the BLS, has the
responsibility for granting recordkeeping variances or exceptions. The other
changes reflected in the final rule follow from the proposed rule and are
intended to add several provisions from OSHA's general variance procedures in
Part 1905. For example, paragraph (e) of section 1904.38 of the final rule is
a modification of § 1905.11(b)(8), and paragraph (i) of this section of the
final rule derives from section 1905.5. The objective of this paragraph is to
give OSHA discretionary authority to decline to act on a petition where the
petitioner has a pending citation. OSHA concludes that it would not be
appropriate to consider granting a recordkeeping variance to an employer who
has a pending recordkeeping violation before OSHRC or a State agency. Paragraph
(i) of the final rule supports paragraph (c)(7) from this same section
because it provides a mechanism for giving OSHA notice of a citation pending
before a state agency. Paragraph (i) also clarifies that variances only apply
to future events, not to past practices. Paragraph (j) of section 1904.38 of
the final rule nullifies all prior variances and exceptions. OSHA believes
that it is important to begin with a "clean slate" when the final
recordkeeping rule goes into effect. Employers with existing variances can
re-petition the agency if the final rule does not address their needs. Another
addition to the final rule makes explicit that OSHA can provide additional
public notice via the Federal Register and may offer additional
opportunity for public comment. A final addition recognizes and makes clear
that employees can participate in variance revocation proceedings. Subpart E. Reporting Fatality, Injury and Illness Information to the
Government Subpart
E of this final rule consolidates those sections of the rule that require
employers to give recordkeeping information to the government. In the
proposed rule, these sections were not grouped together. OSHA believes that
grouping these sections into one Subpart improves the overall organization of
the rule and will make it easier for employers to find the information when
needed. The four sections of this subpart of the final rule are: (a)
Section 1904.39, which requires employers to report fatality and multiple
hospitalization incidents to OSHA. (b)
Section 1904.40, which requires an employer to provide his or her occupational
illness and injury records to a government inspector during the course of a
safety and health inspection. (c)
Section 1904.41, which requires employers to send their occupational illness
and injury records to OSHA when the Agency sends a written request asking for
specific types of information. (d)
Section 1904.42, which requires employers to send their occupational illness
and injury records to the Bureau of Labor Statistics (BLS) when the BLS sends
a survey form asking for information from these records. Each
of these sections, and the record evidence pertaining to them, is discussed
below. Section 1904.39 Reporting Fatality or Multiple Hospitalization
Incidents to OSHA Paragraph
(a) of section 1904.39 of the final rule requires an employer to report
work-related events or exposures involving fatalities or the in-patient
hospitalization of three or more employees to OSHA. The final rule requires
the employer, within 8 hours after the death of any employee from a
work-related incident or the in-patient hospitalization of three or more
employees as a result of a work-related incident, to orally report the
fatality/multiple hospitalization by telephone or in person to the Area
Office of the Occupational Safety and Health Administration (OSHA), or to OSHA
via the OSHA toll-free central telephone number, 1-800-321-6742. The
final rule makes clear in paragraph 1904.39(b)(1) that an employer may not
report the incident by leaving a message on OSHA's answering machine, faxing
the Area Office, or sending an e-mail, but may report the fatality or
multiple hospitalization incident using the OSHA 800 number. The employer is
required by paragraph 1904.39(b)(2) to report several items of information
for each fatality or multiple hospitalization incident: the establishment
name, the location of the incident, the time of the incident, the number of
fatalities or hospitalized employees, the names of any injured employees, the
employer's contact person and his or her phone number, and a brief
description of the incident. As
stipulated in paragraph 1904.39(b)(3), the final rule does not require an
employer to call OSHA to report a fatality or multiple hospitalization
incident if it involves a motor vehicle accident that occurs on a public
street or highway and does not occur in a construction work zone. Employers
are also not required to report a commercial airplane, train, subway or bus
accident (paragraph 1904.39(b)(4)). However, these injuries must still be
recorded on the employer's OSHA 300 and 301 forms, if the employer is
required to keep such forms. Because employers are often unsure about whether
they must report a fatality caused by a heart attack at work, the final rule
stipulates, at paragraph 1904.39(b)(5), that such heart attacks must be
reported, and states that the local OSHA Area Office director will decide
whether to investigate the incident, depending on the circumstances of the
heart attack. Paragraph
1904.39(b)(6) of the final rule clarifies that the employer is not required
to report a fatality or hospitalization that occurs more than thirty (30)
days after an incident, and paragraph 1904.39(b)(7) states that, if the
employer does not learn about a reportable incident when it occurs, the
employer must make the report within 8 hours of the time the incident is
reported to the employer or to any of the employer's agents or employees. Section
1904.39 of the final rule includes several changes from the proposed rule and
section 1904.17 of the former rule. First, OSHA has rewritten the
requirements of the former rule using the same plain-language
question-and-answer format that is used throughout the rest of the rule. Second,
this section clarifies that the report an employer makes to OSHA on a
workplace fatality or multiple hospitalization incident must be an oral
report. As the regulatory text makes clear, the employer must make such
reports to OSHA by telephone (either to the nearest Area Office or to the
toll-free 800 number) or in person. Third, the employer may not merely leave
a message at the OSHA Area Office; instead, the employer must actually speak
to an OSHA representative. Fourth, this section of the rule lists OSHA's 800
number for the convenience of employers and to allow flexibility in the event
that the employer has difficulty reaching the OSHA Area Office. Fifth, this
section eliminates the former requirement that employers report fatalities or
multiple hospitalizations that result from an accident on a commercial or
public transportation system, such as an airplane accident or one that occurs
in a motor vehicle accident on a public highway or street (except for those
occurring in a construction work zone, which must still be reported). OSHA's
proposal would have made three changes to the former rule: (1) it would have
clarified the need for employers to make oral reports, (2) it would have
included OSHA's 800 number in the text of the regulation, and (3) it would
have required a site-controlling employer at a major construction site to
report a multiple hospitalization incident if the injured workers were
working at that site under the control of that employer. A
number of commenters supported all three of these proposed changes (see, e.g.,
Exs. 15: 133, 136, 137, 141, 204, 224, 266, 278, 369, 378, 429). However,
many commenters discussed the changes OSHA proposed, raised additional issues
not raised in the proposal, and made various suggestions for the final rule. Comments
are discussed below for each of the proposed changes. Making oral reports of fatalities or multiple hospitalization
incidents and the OSHA 800 number. The former rule required an employer to
"orally report" fatality or multiple hospitalization incidents to
OSHA by telephone or in person, although the rule did not specify that
messages left on the Area Office answering machine or sent by e-mail would
not suffice. Since the purpose of this notification is to alert OSHA to the
occurrence of an accident that may warrant immediate investigation, such
notification must be made orally to a "live" person. The changes
made to the final rule are consistent with those proposed, except that the
proposal would have required employers to report to the Area Office either by
telephone or in person during normal business hours and to limit use of the
toll-free 800 number to non-business hours. A
few commenters suggested ways for OSHA to make the 800 number more available
to employers and to ensure that reports are made orally (see, e.g.,
Exs. 15: 9, 154, 203, 229, 238, 239, 389). For example, the National Pest
Control Association suggested that: [t]he
agency print OSHA's emergency toll free number on the OSHA 300 and 301 forms
and explain that employers are to call the number in the case of a fatality
or multiple hospitalization during non-business hours. We would also urge
OSHA to define "non-business" hours both in the regulatory text and
on the forms (Ex. 15: 229). Waste
Management, Inc. (WMI)
(Ex. 15: 389) recommended full reliance on the 800 number, proposing that: [t]he
800 number be used at all times. A recent event entailing an attempt to report
to the local area office illustrates the difficulty in complying with this
proposal. The caller was away from the office out-of-town and attempted to
rely on information obtained from the local telephone information service. No
local OSHA telephone number was identified as the local emergency number. The
city had multiple area offices and telephone numbers without adequate
identification at the telephone company information desk. The local number
which was finally identified as the local OSHA emergency number could not be
accessed from outside the calling area even if the caller was willing to pay
the charges. After numerous calls and involvement of several levels of
telephone management, the normal business day was completed and so the 800
number in Washington was called. The use of a single, nationwide 800 number
has worked for EPA and other agencies. WMI believes it would simplify
reporting requirements and ensure more timely reporting. Houston
Lighting and Power (Ex. 15: 239) suggested that OSHA allow employers to
report either to the local OSHA Office or to the 800 number: [r]eporting
of an incident either to the nearest Area Office or through the use of the
1-800 number should be available alternatives to the reporting requirement. The
proposal limits when the 1-800 number may be used. In many cases the person
reporting the incident may not be at the incident site. It is much more
efficient to use a number that does not change from location to location than
to attempt to identify each area office. Tri/Mark
Corporation (Ex. 15: 238) asked about reporting using fax or e-mail: "If
a live person is available to answer the 800 number, there is no problem with
this item. Could a fax or e-mail message be an appropriate notification
tool?" It
is essential for OSHA to speak promptly to any employer whose employee(s)
have experienced a fatality or multiple hospitalization incident to determine
whether the Agency needs to begin an investigation. Therefore, the final rule
does not permit employers merely to leave a message on an answering machine,
send a fax, or transmit an e-mail message. None of these options allows an
Agency representative to interact with the employer to clarify the
particulars of the catastrophic incident. Additionally, if the Area Office
were closed for the weekend, a holiday, or for some other reason, OSHA might
not learn of the incident for several days if electronic or facsimile
transmission were permitted. Paragraph 1904.39(b)(1) of the final rule makes
this clear. As
noted, OSHA allows the employer to report a fatality or multiple
hospitalization incident by speaking to an OSHA representative at the local
Area Office either on the phone or in person, or by using the 800 number. This
policy gives the employer flexibility to report using whatever mechanism is
most convenient. The employer may use whatever method he or she chooses, at
any time, as long as he or she is able to speak in person to an OSHA
representative or the 800 number operator. Therefore, there is no need to
define business hours or otherwise add additional information about when to
use the 800 number; it is always an acceptable option for complying with this
reporting requirement. This
final rule also includes the 800 number in the text of the regulation. OSHA
has decided to include the number in the regulatory text at this time to
provide an easy reference for employers. OSHA will also continue to include
the 800 number in any interpretive materials, guidelines or outreach
materials that it publishes to help employers comply with the reporting
requirement. Reporting by a site-controlling employer at a major construction site. The proposed rule would have
required a "site controlling employer or designee" to report a case
to OSHA "if no more than two employees of a single employer were
hospitalized but, collectively, three or more workers were hospitalized as
in-patients." This provision was designed to capture those cases where
three or more employees of different employers were injured and hospitalized
in a single incident. Because a site-controlling employer was defined in the
proposed rule as a construction firm with control of a project valued at
$1,000,000 or more, the proposed rule would have applied only to those
employers. Under the former rule, employers only needed to report if three of
their own employees were hospitalized. A
number of commenters opposed the proposed change (see, e.g., Exs. 25,
15: 9, 126, 199, 289, 305, 312, 335, 346, 356, 389, 406, 420). Several
commenters argued that the provision would be unworkable because individual
employers often do not know about the post-accident condition of the injured
employees of other employers (see, e.g., Exs. 15: 126, 346). Other
commenters objected to placing the burden of such reporting on the general
contractor on a construction site rather than on the individual employers of
the affected employees (see, e.g., Exs. 15: 312, 356). Still other
commenters noted that, since the term "site-controlling employer"
is defined by OSHA as an employer in the construction industry, this
provision would have no apparent application in multi-employer settings
outside the construction industry (see, e.g., Exs. 15: 199, 335, 346). After
considering the issue further, OSHA agrees that it would be impractical to
impose on one employer a duty to report cases of multiple hospitalizations of
employees who work for other employers. Although such a reporting requirement
would provide OSHA with information that the Agency could use to inspect some
incidents that it might otherwise not know about, OSHA believes that the
fatality and catastrophe provisions of the final rule will capture most such
incidents. Accordingly, OSHA has not included this proposed provision in the
final rule. Eight hours to report. A number of commenters asked OSHA to extend the 8-hour period allowed
for employers to report a fatality or a multiple hospitalization incident to
OSHA. Most of the commenters who believe that this interval is too short
recommended a 24-or 48-hour reporting time (see, e.g., Exs. 33, 15:
35, 37, 176, 203, 218, 229, 231, 273, 301, 335, 341, 423, 425). For example,
the International Dairy Foods Association (IDFA) (Ex. 15: 203) recommended
that "the reporting period be extended from 8 hours to 24 hours after
the event. We feel this is appropriate because the resultant devastation in
this type of situation would clearly overshadow the need to inform OSHA of an
event that, with all due respect, could not be remedied by reporting it
within 8 hours or less." The American Health Care Association (AHCA)
(Ex. 15: 341) stated: [r]eporting
workplace fatalities or multiple employee hospitalization within 8 hours is
unrealistic and unreasonable because the employer's first concern should be
to the employee(s) injured or killed, his/her family or damage to the building
when others may be in imminent danger (e.g., a fire in a health care
facility may require evacuating and finding alternative placement for frail,
elderly residents). AHCA recommends that OSHA revise the regulation by
extending the time period for reporting fatalities or hospitalization of 3 or
more employees to "within 48 hours." After
considering these comments, and reviewing the comments received during the
comment period for the April 1, 1994 rulemaking on this issue (59 FR
15594-15600), OSHA has decided to continue the 8-hour requirement. The 1994
rulemaking noted the support of many commenters for the 8-hour rule, as well
as support for 4-hours, 24 hours, and 48 hours. As OSHA discussed in the
April 1, 1994 rulemaking, prompt reporting enables OSHA to inspect the site
of the incident and interview personnel while their recollections are
immediate, fresh and untainted by other events, thus providing more timely
and accurate information about the possible causes of the incident. The
8-hour reporting time also makes it more likely that the incident site will
be undisturbed, affording the investigating compliance officer a better view
of the worksite as it appeared at the time of the incident. Further, from its
enforcement experience, OSHA is not aware that employers have had difficulty
complying with the 8-hour reporting requirement. Motor vehicle and public transportation accidents. Several commenters recommended
that OSHA not require employers to report to OSHA fatalities and multiple
hospitalization catastrophes caused by public transportation accidents and
motor vehicle accidents (see, e.g., Exs. 33, 15: 176, 199, 231, 272,
273, 301, 303, 375). The comments of NYNEX (Ex. 15: 199) are typical: [t]he
primary purpose of this section is to provide OSHA with timely information
necessary to make a determination whether or not to investigate the scene of
an incident. To NYNEX's knowledge, OSHA has not investigated public
transportation accidents or motor vehicle accidents occurring on public
streets or highways. In order to reduce unnecessary costs for both employers
and OSHA, NYNEX recommends that fatalities and multiple hospitalizations
resulting from these types of accidents be exempt from the reporting
requirement. OSHA
agrees with these commenters that there is no need for an employer to report
a fatality or multiple hospitalization incident when OSHA is clearly not
going to make an investigation. When a worker is killed or injured in a motor
vehicle accident on a public highway or street, OSHA is only likely to
investigate the incident if it occurred in a highway construction zone. Likewise,
when a worker is killed or injured in an airplane crash, a train wreck, or a
subway accident, OSHA does not investigate, and there is thus no need for the
employer to report the incident to OSHA. The text of paragraphs 1904.39(b)(3)
and (4) of the final rule clarifies that an employer is not required to
report these incidents to OSHA. These incidents are normally investigated by
other agencies, including local transit authorities, local or State police,
State transportation officials, and the U.S. Department of Transportation. However,
although there is no need to report these incidents to OSHA under the
8-hour reporting requirement, any fatalities and hospitalizations caused by
motor vehicle accidents, as well as commercial or public transportation
accidents, are recordable if they meet OSHA's recordability criteria. These
cases should be captured by the Nation's occupational fatality and injury
statistics and be included on the employer's injury and illness forms. The
statistics need to be complete, so that OSHA, BLS, and the public can see
where and how employees are being made ill, injured and killed. Accordingly,
the final rule includes a sentence clarifying that employers are still
required to record work-related fatalities and injuries that occur as a
result of public transportation accidents and injuries. Although
commenters are correct that OSHA only rarely investigates motor vehicle
accidents, the Agency does investigate motor vehicle accidents that occur at
street or highway construction sites. Such accidents are of concern to the
Agency, and OSHA seeks to learn new ways to prevent these accidents and
protect employees who are exposed to them. For example, OSHA is currently
participating in a Local Emphasis Program in the State of New Jersey that is
designed to protect highway construction workers who are exposed to traffic
hazards while performing construction work. Therefore, the final rule
provides provisions that require an employer to report a fatality or multiple
hospitalization incident that occurs in a construction zone on a public
highway or street. Other
issues related to the reporting of fatalities and multiple hospitalization
incidents. Commenters also raised several issues not addressed in the
proposed rule. The National Pest Control Association (NPCA) (Ex. 15: 229)
asked OSHA to allow for a longer reporting time in those rare cases where the
owner of a small business was himself or herself incapacitated in the
accident, suggesting that: [l]anguage
be included in the rule revisions to provide for additional time to report
fatalities and multiple hospitalizations if the employer is hospitalized or
otherwise incapacitated. * * * Typically, pest control companies are very
small operations. Many employ five or less employees. Often times the
business owner is out in the field as much as the employees. So, let's say an
employer is hospitalized during a work-related incident that also claimed the
life of an employee, who happened to be the lone employee. Can the employer
really be expected to report the fatality within eight hours? In most
instances the eight hour requirement is rather reasonable, however, in this
circumstance it is not. NPCA asks that the agency consider adding language
allowing small employers who are hospitalized additional time to report a
multiple hospitalization or fatality. OSHA
has decided that there is no need to include language to address this very
rare occurrence. If such an unfortunate event were to occur, OSHA would
certainly allow a certain amount of leeway for the employer or a
representative to report the case. The OSHA inspector can, for good cause,
provide the employer with reasonable relief from citation and penalty for
failing to report the incident within 8 hours, especially if the employer
reports it as soon as possible. Bell
Atlantic (Ex. 15: 218) and the Dow Chemical Company (Ex. 15: 335) recommended
that OSHA include additional provisions for employees who are admitted to the
hospital for observation only. Bell Atlantic's comments were: "Bell
Atlantic also recommends that the hospitalization requirement [for reporting
multiple hospitalizations] be limited to those workers that are hospitalized
overnight for treatment. The current proposal does not address
hospitalization for observation, only that they are non-recordable." OSHA
disagrees with these comments, as it did when similar comments were submitted
to the record in the 1994 rulemaking on this provision [59 FR 15596-15597]. If
three or more workers are hospitalized overnight, whether for treatment or
observation, the accident is clearly of a catastrophic nature, and OSHA needs
to learn about it promptly. Additionally, the inpatient distinction provides
an easy-to-understand trigger for reporting. In many instances, a patient who
is admitted for observation as an inpatient later receives treatment after
the true nature and extent of the injury becomes known. At the time of the
incident, when reporting is most useful, the employer is unlikely to know the
details about the treatment that the worker is receiving (e.g.,
observation only or medical treatment). However, the employer will probably
know that the employee has been admitted to the hospital as an inpatient. The
United Parcel Service (UPS) (Ex. 15: 424) suggested that the 8-hour time
period for reporting apply only when a higher ranking official of the company
learns of the fatality or catastrophe, stating: [U]PS
supports this proposal, with one modification: the provision that the
eight-hour limit begins to run on notice to an employee or agent is over
broad. It may happen that workers who learn of the death or hospitalization
of a co-worker do not notify the employer in sufficient time to enable the
manager in charge of contacting OSHA to meet the deadline. The better rule,
therefore, is to require OSHA modification within eight hours of the
incident's being reported to a supervisor, manager, or company official. This
allowance is particularly necessary for incidents occurring away from the
work site. The
issue of who within the company must learn of the incident before the
reporting deadline was also discussed in the 1994 rulemaking [59 FR 15597]. As
in the former rule, the final rule requires reporting within 8 hours of the
time any agent or employee of the employer becomes aware of the incident. It
is the employer's responsibility to ensure that appropriate instructions and
procedures are in place so that corporate officers, managers, supervisors,
medical/health personnel, safety officers, receptionists, switchboard
personnel, and other employees or agents of the company who learn of employee
deaths or multiple hospitalizations know that the company must make a timely
report to OSHA. Section 1904.40 Providing Records to Government Representatives Under
the final rule, employers must provide a complete copy of any records
required by Part 1904 to an authorized government representative, including
the Form 300 (Log), the Form 300A(Summary), the confidential listing of
privacy concern cases along with the names of the injured or ill privacy case
workers, and the Form 301 (Incident Report), when the representative asks for
the records during a workplace safety and health inspection. This requirement
is unchanged from the corresponding requirement in OSHA's former
recordkeeping rule. However, the former rule combined the requirements
governing both government inspectors' and employers' rights of access to the
records into a single section, section 1904.7 "Access to Records." The
final rule separates the two. It places the requirements governing access to
the records by government inspectors in Subpart E, along with other
provisions requiring employers to submit their occupational injury and
illness records to the government or to provide government personnel access
to them. Provisions for employee access to records are now in section
1904.35, Employee Involvement, in Subpart D of this final rule. The
final regulatory text of paragraph (a) of section 1904.40 requires an
employer to provide an authorized government representative with records kept
under Part 1904 within four business hours. As stated in paragraph
1904.40(b)(1), the authorized government representatives who have a right to
obtain the Part 1904 records are a representative of the Secretary of Labor
conducting an inspection or investigation under the Act, a representative of
the Secretary of Health and Human Services (including the National Institute
for Occupational Safety and Health (NIOSH) conducting an investigation under
Section 20(b) of the Act, or a representative of a State agency responsible
for administering a State plan approved under section 18 of the Act. The
government's right to ask for such records is limited by the jurisdiction of
that Agency. For example, a representative of an OSHA approved State plan
could only ask for the records when visiting an establishment within that
state. The
final rule allows the employer to take into account difficulties that may be
encountered if the records are kept at a location in a different time zone
from the establishment where the government representative has asked for the
records. If the employer maintains the records at a location in a different
time zone, OSHA will use the business hours of the establishment at which the
records are located when calculating the deadline, as permitted by paragraph
1904.40(b)(2). The former rule. Paragraph 1904.7(a) of the former OSHA recordkeeping rule required
employers to provide authorized government representatives with access to the
complete Form 200, without the removal of any information (unredacted). That
paragraph read as follows: Each
employer shall provide, upon request, records provided for in §§ 1904.2,
1904.4, and 1904.5, for inspection and copying by any representative of the
Secretary of Labor for the purpose of carrying out the provisions of the Act,
and by representatives of the Secretary of Health, Education, and Welfare
during any investigation under section 20(b) of the Act, or by any
representative of a State accorded jurisdiction for occupational safety and
health inspections or for statistical compilation under sections 18 and 24 of
the Act. The proposal. The proposed regulation was consistent with OSHA's former
recordkeeping regulation in that it continued to require employers to provide
government representatives with access to the entire OSHA injury and illness
Log and Summary (Forms 300 and 300A) and OSHA Incident Record (Form 301). Proposed
paragraph 1904.11(a), "Access to Records," read as follows: Government Representatives. Each employer shall provide, upon a request
made in person or in writing, copies of the OSHA Forms 300 and 301 or
equivalents, and year-end summaries for their own employees, and injury and
illness records for "subcontractor employees" as required under
this Part to any authorized representative of the Secretary of Labor or
Secretary of Health and Human Services or to any authorized representative of
a State accorded jurisdiction for occupational safety and health for the
purposes of carrying out the Act. (1)
When the request is made in person, the information must be provided in hard
copy (paper printout) within 4 hours. If the information is being transmitted
to the establishment from some other location, using telefax or other
electronic transmission, the employer may provide a copy to the government
representative present at the establishment or to the government
representative's office. (2)
When the request is made in writing, the information must be provided within
21 days of receipt of the written request, unless the Secretary requests
otherwise. The
proposal thus would have continued to combine the records access provisions
for government personnel with the access provisions for employees, former
employees and employee representatives. The proposed rule would have modified
the former rule in several ways, however (61 FR 4038). First, it would have
required the employer to provide copies of the forms, while the former rule
simply required the employer to provide records for inspection and copying. Second,
the proposal would have required the employer to produce the records within 4
hours, while the former rule did not specify any time period. Third, the
proposed rule would have allowed an employer either to provide the records at
the inspection location, or to fax the records to the government inspector's
home office. This would allow employers to keep their records at a
centralized location as long as the government inspector could obtain the
information promptly. Fourth, the proposed rule would have required the
employer to send Part 1904 information to OSHA within 21 days of the date on
which a written request was received from the Agency. This time limit for
mailed survey forms was established in section 1904.17 of the former rule and
is carried forward in this final rule at section 1904.40. The
proposal also requested comment on situations where the 4-hour requirement
might be infeasible and posed several questions for the public to consider: OSHA
solicits input on these time limitations. Are they reasonable? Should they be
shortened or extended? Should the requirement be restricted to business
hours, and if so, to the business hours of the establishment to which the
records pertain or the establishment where the records are maintained? Many
commenters agreed with OSHA that government representatives should have
access to the records themselves (see, e.g., Exs. 15: 78, 163, 218,
359, 369, 405). For example, Alliant Techsystems remarked "[c]opies of
this data should be given to OSHA personnel" (Ex. 15: 78). A number of
commenters agreed that OSHA personnel should have access to the OSHA 301
records, even though they did not think that employees and their
representatives should have access to the Form 301 (see, e.g., Exs.
33, 15: 1, 39, 76, 82, 83, 159, 183, 185, 193, 226, 330, 335, 338, 359, 373,
383, 385, 389, 399, 409, 423). For example, the American Meat Institute (AMI)
(Ex. 15: 330) "[b]elieves that it is imperative that personal
identifiers be explicitly excluded from information that would be readily
available to anyone, with the single exception of an interested government
regulator." The Texas Chemical Council (Ex. 15: 159) argued:
"[L]ogs with employees" names should only be accessed by selected
individuals (i.e., OSHA inspectors, medical personnel, etc.). Posting or
viewing of OSHA 300 log or 301 reports without names should be the avenue for
employees to access information." Other
commenters disagreed with one or more of the proposed access provisions (see,
e.g., Exs. 25, 27, 15: 13, 22, 39, 60, 82, 100, 102, 105, 111, 117,
119, 124, 139, 142, 154, 170, 174, 181, 182, 183, 193, 215, 239, 258, 277,
294, 297, 305, 313, 315, 317, 318, 346, 347, 352, 353, 359, 375, 378, 390,
392. 393, 395, 397, 399, 409, 425, 430, 440.) These commenters raised a wide
range of issues. These included the right of OSHA inspectors to access the
records; employers' Fourth Amendment rights; the way the government handles
information in its possession; employee privacy concerns; and the proposed
requirement to produce the records within 4 hours. On the right of OSHA
inspectors to access the records, for example, the Douglas Battery
Manufacturing Company (Ex. 15: 82) stated: [n]one
of these records should be * * * used to conduct an OSHA compliance
inspection. Such action would be in direct conflict with the purpose of the
OSHA log which is to track injury and illness trends so corrective action can
be taken by the employer. OSHA
does not agree with this view, because government inspectors conducting
workplace safety and health inspections need these records to carry out the
purposes of the Act, i.e., to identify hazards that may harm the employees
working there. The Part 1904 records provide information about how workers
are injured or made ill at work and help guide the inspector to the hazards
in the workplace that are causing injury and illness. Although these records
may not cover all hazards that exist in a particular workplace, they help the
inspector to identify hazards more completely during an inspection. Fourth amendment issues. A number of commenters argued that the regulatory requirement to
provide records to a government inspector violated Fourth Amendment
guarantees against unreasonable searches and the right to demand a warrant or
subpoena before the government can search a citizen's property (see, e.g.,
Exs. 25, 27, 15: 124, 139, 154, 174, 193, 215, 258, 305, 315, 318, 346, 375,
390, 392 395, 397). For example, the Workplace Safety and Health Council (Ex.
15: 313) stated: [t]his
provision would require employers to give OSHA a copy of a Form 300 and 301. This
proposal flies in the face of court decisions holding that employers may not
be penalized for declining to provide current Form 101 upon request and that,
to gain access to them, OSHA must proceed by subpoena or inspection warrant. Secretary
v. Taft Broadcasting Co., 849 F.2d 990 (6th Cir. 1988); Brock v. Emerson
Electric Co., 834 F.2d 994 (11th Cir. 1987). These decisions are based on
an employer's constitutional rights and they are not subject to change by
OSHA regulation. These
commenters appear to be arguing that including a subpoena or warrant
enforcement mechanism in the text of the rule is necessary to adequately
protect their Fourth Amendment right to privacy. This is not the case,
however. The Fourth Amendment protects against "unreasonable"
intrusions by the government into private places and things. Reporting rules
that do not depend on subpoena or warrant powers are not
"unreasonable" per se. See e.g., California Bankers Ass'n
v. Shultz, 416 U.S. 21, 67 (1974) (upholding reporting regulation
issued under the Bank Secrecy Act of 1970 that did not provide for subpoenas
or warrants where the "information was sufficiently described and
limited in nature and sufficiently related to a tenable Congressional
determination" that the information would have a high degree of
usefulness in criminal, tax, or regulatory investigations or proceedings). In
any event, the text of the rule is silent as to the enforcement mechanism
OSHA will use in what OSHA hopes will be the rare case in which an employer
does not provide a copy of the records on request. OSHA may proceed by
applying for a warrant, or by administrative subpoena, or by citation where
doing so is consistent with the Fourth Amendment. OSHA notes that employers
have a Fourth Amendment right to require a warrant before an OSHA
representative may physically enter a business establishment for an
inspection. The
totality of circumstances surrounding a warrantless or
"subpoena-less" administrative investigation or investigation
program determines its reasonableness. For example, in McLaughlin v. A.B.
Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a
records access citation against an employer who refused an OSHA inspector
access to its OSHA Logs and forms on the ground that it had a right to insist
on a warrant or subpoena; the Court held that the inspector had such a right
because a summary of the information was posted annually on the employee
bulletin board and the inspector was lawfully on the premises to investigate
a safety complaint. In New York v. Burger, 482 U.S. 691,
702-703 (1987), the Supreme Court noted that agencies may gather information
without a warrant, subpoena, or consent if the information would serve a
substantial governmental interest, a warrantless (or subpoena-less)
inspection is necessary to further the regulatory scheme, and the agency acts
pursuant to an inspection program that is limited in time, place, and scope. The
Burger court upheld a warrantless inspection of records during an
administrative inspection of business premises. See also Kings Island
(noting that under Burger a warrantless or subpoena-less inspection of
records might be reasonable, but concluding that the facts of the case did
not satisfy Burger analysis); Emerson Electric (noting that under California
Bankers an agency may gain access to information without a subpoena or
warrant but concluding that the facts of that case were not comparable to
those reviewed in California Bankers). Given
that some warrantless and subpoena-less searches during an OSHA inspection
may be reasonable while others may not, depending on the circumstances of the
individual inspection, OSHA has decided not to include a subpoena or warrant
enforcement mechanism in the text of the rule. However, OSHA will continue to
enforce the rule within the parameters of applicable court decisions. Privacy of medical records. A number of commenters questioned the right
of the government to access information in the records because of privacy
concerns about medical records (see, e.g., Exs. 27, 15: 13, 22, 39,
60, 82, 117, 119, 142, 183, 359, 378, 392, 399.) The National Association of
Manufacturers (NAM) (Ex. 15: 142) stated that "[t]he privacy
interference as proposed that opens up medical records to most anyone is
inconceivable, and should be eliminated." The National Oilseed
Processors Association (Ex. 15: 119) recommended: [t]he
issue of privacy is an important one that should be handled carefully and
with sensitivity to individual rights. We believe that the release of medical
records of a specific employee should only be done after the employee whose
records may be released has provided written permission to the employer to do
so. This
section of the final rule does not give unfettered access to the records by
the public, but simply allows a government inspector to use the records
during the course of a safety and health inspection. As discussed above in
the section covering access to the records for employees, former employees,
and employee representatives (Section 1904.35), OSHA does not consider the
Forms 300 and 301 to be medical records, for the following reasons. First,
they do not have to be completed by a physician or other licensed health care
professional. Second, they do not contain the detailed diagnostic and
treatment information usually found in medical records. Finally, the injuries
and illnesses found in the records are usually widely known among other
employees at the workplace where the injured or ill worker works; in fact,
these co-workers may even have witnessed the accident that gave rise to the
injury or illness. OSHA
does not agree that its inspectors should be required to obtain permission
from all injured or ill employees before accessing the full records. Gaining
this permission would make it essentially impossible to obtain full access to
the records, which is needed to perform a meaningful workplace investigation.
For example, an inspector would not be able to obtain the names of employees
who were no longer working for the company to perform follow-up interviews
about the specifics of their injuries and illnesses. The names of the injured
or ill workers are needed to allow the government inspector to interview the
injured and ill workers and determine the hazardous circumstances that led to
their injury or illness. The government inspector may also need the
employee's names to access personnel and medical records if needed (medical
records can only be accessed after the inspector obtains a medical access
order). Additionally, refusing the inspector access to the names of the
injured and ill workers would effectively prohibit any audit of the Part 1904
records by the government, a practice necessary to verify the accuracy of
employer recordkeeping in general and to identify problems that employers may
be having in keeping records under OSHA's recordkeeping rules. Adopting the
inefficient access method suggested by these commenters would also place a
substantial administrative burden on the employer, the employees, and the
government. Further, since OSHA inspectors do not allow others to see the
medical records they have accessed, the privacy of employees is not
compromised by CSHO access to the records. Time for response to requests for records. Paragraphs 1904.40(a) and (b) of the final
rule require records to be made available to a government inspector within 4
business hours of an oral request for the records, using the business hours
of the establishment at which the records are located. A
number of commenters opposed the proposed 4-hour records production
requirement as being unreasonable and burdensome (see, e.g., Exs. 15:
89, 182, 185, 204, 213, 226, 260, 262, 265, 277, 294, 297, 317, 324, 348,
392, 401, 409, 425). Several of these commenters recommended longer intervals,
ranging from 8 hours (see, e.g., Exs. 15: 9, 133, 204, 271, 294, 343),
the "next business day," or 24 hours (see, e.g., Exs. 15:
200, 225, 277, 394, 425), 72 hours (see, e.g., Exs. 15: 65, 154), 6
days (Ex. 15: 226), and 21 days (Ex. 15: 317). On the other hand, some
commenters were concerned that access not be unduly delayed (see, e.g.,
Exs. 15: 350, 369, 418, 429). Two commenters (Exs. 15: 418, 429) recommended
that the 4-hour requirement be reduced to two hours, except when the request
would extend the reply period beyond regular business hours, when 4 hours
would be acceptable. OSHA
has concluded that 4 hours is a reasonable and workable length of time for
employers to respond to governmental requests for records. The 4-hour time
period for providing records from a centralized source strikes a balance
between the practical limitations inherent in record maintenance and the
government official's need to obtain these records and use the information to
conduct a workplace inspection. Some
commenters noted that temporary computer or fax failures could interfere with
an employer's ability to comply with the 4-hour requirement (see, e.g.,
Exs. 15: 203, 254, 423). One commenter felt that additional time should be
given to employers if equipment failure prevented the retrieval of the
records within four hours (Ex. 15: 423). The American Society of Safety
Engineers (ASSE) questioned whether four hours is a reasonable time frame for
employers who use independent third parties to maintain their records (Ex. 15:
182). Several
commenters raised concerns that other difficulties might make it difficult to
produce the records in the allotted time. Some noted that the 4-hour time
limit might not be adequate for large facilities with voluminous records
(see, e.g., Exs. 15: 181, 297, 425). For example, the American
Automobile Manufacturers Association (AAMA) (Ex. 15: 409) stated: [m]any
of our members' locations have only one medical person working, and to
disrupt the normal medical care of injured or ill employees to produce
records within a four hour period is not in the best interests of the health
and safety of all concerned. Many additional factors must be taken into
account in terms of the production of records such as locating the files,
copying the files, having appropriate staffing to do the copying, and if the
records are on a computer, the computer must not be on down time. OSHA
believes that it is essential for employers to have systems and procedures
that can produce the records within the 4-hour time. However, the Agency
realizes that there may be unusual or unique circumstances where the employer
cannot comply. For example, if the records are kept by a health care
professional and that person is providing emergency care to an injured
worker, the employer may need to delay production of the records. In such a
situation, the OSHA inspector may allow the employer additional time. If
a government representative requests records of an establishment, but those
records are kept at another location, the 4-hour period can be measured in
accordance with the normal business hours at the location where the records
are being kept. Some commenters observed that personnel at the centralized
location might not be available to respond to requests if the 4-hour period
extended outside the regular business hours of that location (see, e.g.,
Exs. 15: 105, 111, 159, 170, 225, 239, 272, 294, 303, 332, 336, 343, 356,
359, 389, 393, 430). This problem could arise under two different scenarios. First,
if the centralized location were in a different time zone than the site whose
records are requested, the business hours of the respective locations may
differ by three or even more hours. Second, the business hours of a
manufacturing plant or a construction site might differ from the business
hours of the company's central offices, even if the operations are in the
same time zone. Under the final rule, the employer has 4 regular business
hours at the location at which the records are kept in which to comply with
the request of a government representative. OSHA
has designed the final rule to give each employer considerable flexibility in
maintaining records. It permits an employer to centralize its records, to use
computer and facsimile technologies, and to hire a third party to keep its
records. However, an employer who chooses these options must also ensure that
they are sufficiently reliable to comply with this rule. In other words, the
flexibility provided to employers for recordkeeping must not impede the
Agency's ability to obtain and use the records. Provide copies. Several commenters objected to the proposed requirement that
employers provide copies of the records to government personnel without
charging the government to do so (see, e.g., Exs. 15: 69, 86, 100,
179, 347, 389, 397, 409). Most of these commenters cited the paperwork burden
on employers as the primary reason for objecting. Several suggested that the
employer be allowed to charge for copies, or that the government
representative make their own copies (see, e.g., Exs. 15: 179, 347,
389, 409). This view was expressed in a comment from the Ford Motor Company
(Ex. 15: 347): [a]n
undue burden may be placed on the establishment should a compliance officer
ask for an inordinate amount of records or records which will not be utilized.
Authorized government representatives should make their own copies and
therefore will be diligent in asking only for those materials they will be
utilizing. OSHA's
experience has been that the vast majority of employers willingly provide
copies to government representatives during safety and health inspections. Making
copies is a routine office function in almost every modern workplace. With
the widespread availability of copying technology, most workplaces have copy
machines on-site or readily available. The cost of providing copies is
minimal, usually less than five cents per copy. In addition, the government
representative needs to obtain copes of records promptly, so that he or she
can analyze the data and identify workplace hazards. Therefore, in this final
rule, OSHA requires the employer to provide copies of the records requested
to authorized government representatives. Other Section 1904.40 issues. Commenters raised additional issues about
providing occupational illness and injury information to OSHA during an
inspection. The American Ambulance Association (Ex. 15: 226) recommended that
OSHA "[p]lace greater emphasis on the fact that employers do not have to
provide Forms 300 and 301 unless OSHA specifically asks for their
submission." OSHA believes that the final rule is clear on this point,
because it states that the employer must provide the records only when asked
by an authorized government representative to do so. Several
commenters stated that all requests for occupational safety and health information
should be made in writing (see, e.g., Exs. 15: 69, 317, 397). OSHA
believes that it is neither appropriate nor necessary to require a government
representative to request the information in writing. Government officials
who are conducting workplace inspections may ask for any number of materials
or ask verbally for information about various matters during the course of an
inspection. Putting these requests in writing would impede workplace
inspections and delay efforts to address workplace hazards. Section 1904.41 Annual OSHA Injury and Illness Survey of Ten or More
Employers Section
1904.41 of this final rule replaces section 1904.17, "Annual OSHA Injury
and Illness Survey of Ten or More Employers," of the former rule issued
on February 11, 1997. The final rule does not change the contents or policies
of the corresponding section of the former rule in any way. Instead, the
final rule simply rephrases the language of the former rule in the plain
language question-and-answer format used in the rest of this rule. The
following table shows the text of Section 1904.17 of the former rule,
followed by the text of Section 1904.41 of this final rule.
Thus,
section 1904.41 of the final rule merely restates, in a plain language
question-and-answer format, the requirements of former rule section 1904.17,
with one minor change. The final rule adds paragraph 1904.41(b)(1), which
contains no requirements or prohibitions but simply informs the employer that
there is no need to send in the Part 1904 injury and illness data until the
government asks for it. Section 1904.42 Requests From the Bureau of Labor Statistics for Data Section
1904.42 of the final rule derives from the subpart of the former rule titled
"Statistical Reporting of Occupational Injuries and Illnesses." The
former rule described the Bureau of Labor Statistics annual survey of
occupational injuries and illnesses, discussed the duty of employers to
answer the survey, and explained the effect of the BLS survey on the States
operating their own State plans. Both
OSHA and the BLS collect occupational injury and illness information, each
for separate purposes. The BLS collects data from a statistical sample of
employers in all industries and across all size classes, using the data to
compile the occupational injury and illness statistics for the Nation. The
Bureau gives each respondent a pledge of confidentiality (as it does on all
BLS surveys), and the establishment-specific injury and illness data are not
shared with the public, other government agencies, or OSHA. The BLS's sole
purpose is to create statistical data. OSHA
collects data from employers from specific size and industry classes, but
collects from each and every employer within those parameters. The
establishment-specific data collected by OSHA are used to administer OSHA's
various programs and to measure the performance of those programs at
individual workplaces. OSHA
proposed to replace sections 1904.20, .21, and .22 of the former rule with a
single reporting provision that would combine the requirements for BLS and
OSHA survey reports into a single section (61 FR 4039). However, since the
time of the proposal, OSHA has determined that the BLS and OSHA information
collections warrant separate coverage because they occur at different times
and collect data for different purposes. When OSHA published final Section
1904.17, Annual OSHA Injury and Illness Surveys (62 FR 6434, Feb. 11, 1997),
the Agency made clear that its surveys are separate from any collections of
injury and illness data by the BLS. Accordingly, the final rule includes two
separate sections: section 1904.41, which is devoted entirely to the
collection of employer-generated injury and illness data by OSHA, and section
1904.42, which is devoted to the collection of such data by the Bureau of
Labor Statistics. Many
commenters discussed the need for accurate government statistics about
occupational death, injury and illness; however, very few of the comments
specifically addressed the proposed provisions relating to employer
participation in the BLS survey. The comments OSHA did receive on this point
addressed the burden imposed by requests for employer records and the
potential duplication between the data collections of OSHA and the BLS (see, e.g.,
Exs. 15: 9, 163, 184, 390, 402). The comments of the U.S. West Company (Ex.
15: 184) are typical: [U]S
WEST acknowledges the need for the Secretary of Labor to periodically request
reports, including recordkeeping data, from employers. However, US WEST does
ask that OSHA carefully consider the need for such reports and work to
streamline the process and reduce redundancies. Specifically, US WEST
requests that OSHA move to implement systems that will allow employers to
electronically provide data, such as the data requested in the BLS Survey of
Occupational Injuries and Illnesses. Such a method will be more effective, in
terms of receiving consistently formatted data, and will be more cost
efficient for both employers and the Department of Labor. In
addition, the DOL should work to avoid duplicate internal efforts that are
costly and time-consuming for the government and employers. By way of
example, US WEST has in the past received requests from BLS to complete the
Survey and from OSHA to complete the Occupational Injury and Illness Report
(Form 196B) for the same facility. Both surveys collect similar information. OSHA
and the BLS have worked together for many years to reduce the number of
establishments that receive both surveys. These efforts have largely been
successful. However, OSHA and BLS use different databases to select employers
for their surveys. This makes it difficult to eliminate the overlap
completely. We are continuing to work on methods to reduce further the
numbers of employers who receive both BLS and OSHA survey requests. OSHA
and BLS are also pursuing ways to allow employers to submit occupational
injury and illness data electronically. In 1998, the OSHA survey allowed
employers for the first time to submit their data electronically, and this
practice will continue in future OSHA surveys. The BLS has not yet allowed
electronic submission of these data due to security concerns, but continues
to search for appropriate methods of electronic submission, and hopes to
allow it in the near future. In
this final rule, OSHA has replaced former sections 1904.20 to 1904.22 with a
new section 1904.42, which is stated in the form of a basic requirement and
four implementing questions and answers about the BLS survey. Former section
1904.20 "Description of statistical program," is not carried
forward in the final rule because it merely described BLS's general legal
authority and sampling methodology and contained no regulatory requirements. Section
1904.21 of the former rule, titled "Duties of employers," required
an employer to respond to the BLS annual survey: "Upon receipt of an
Occupational Injuries and Illnesses Survey Form, the employer shall promptly
complete the form in accordance with the instructions contained therein, and
return it in accordance with the aforesaid instructions." Paragraphs
1904.42(a), (b)(1) and (b)(2) of the final rule being published today replace
former section 1904.21. Paragraph 1904.42(a) states the general obligation of
employers to report data to the BLS or a BLS designee. Paragraph
1904.42(b)(1) states that some employers will receive a BLS survey form and
others will not, and that the employer should not send data unless asked to
do so. Paragraph 1904.42(b)(2) directs the employer to follow the instructions
on the survey form when completing the information and return it promptly. Paragraph
1904.42(b)(3) of this final rule notes that the BLS is authorized to collect
data from all employers, even those who would otherwise be exempt, under
section 1904.1 to section 1904.3, from keeping OSHA injury and illness
records. This enables the BLS to produce comprehensive injury and illness
statistics for the entire private sector. Paragraph 1904.42(b)(3) combines
the requirements of former rule paragraphs 1904.15(b) and 1904.16(b) into
this paragraph of the final rule. In
response to the question "Am I required to respond to a BLS survey form
if I am normally exempt from keeping OSHA injury and illness records?,"
the final rule states "Yes. Even if you are exempt from keeping injury
and illness records under § 1904.1 to § 1904.3, the BLS may inform you in
writing that it will be collecting injury and illness information from you in
the coming year. If you receive such a survey form, you must keep the injury
and illness records required by § 1904.4 to § 1904.12 and make survey reports
for the year covered by the survey." Paragraph
1904.42(b)(4) of this final rule replaces section 1904.22 of the former rule.
It provides that employers in the State-plan States are also required to fill
out and submit survey forms if the BLS requests that they do so. The final
rule thus specifies that the BLS has the authority to collect information on
occupational fatalities, injuries and illnesses from: (1) employers who are
required to keep records at all times; (2) employers who are normally exempt
from keeping records; and (3) employers under both Federal and State plan
jurisdiction. The information collected in the annual survey enables BLS to
generate consistent statistics on occupational death, injury and illness for
the entire Nation. Subpart F. Transition From the Former Rule to the New Rule The
transition interval from the former rule to the new rule involves several
issues, including training and outreach to familiarize employers and
employees about the now forms and requirements, and informing employers in
newly covered industries that they are now required to keep OSHA Part 1904
records. OSHA intends to make a major outreach effort, including the
development of an expert software system, a forms package, and a compliance
assistance guide, to assist employers and recordkeepers with the transition
to the new rule. An additional transition issue for employers who kept
records under the former system and will also keep records under the new
system is how to handle the data collected under the former system during the
transition year. Subpart F of the final rule addresses some of these
transition issues. Subpart
F of the new rule (sections 1904.43 and 1904.44), addresses what employers
must do to keep the required OSHA records during the first five years the new
system required by this final rule is in effect. This five-year period is
called the transition period in this subpart. The majority of the transition
requirements apply only to the first year, when the data from the previous
year (collected under the former rule) must be summarized and posted during
the month of February. For the remainder of the transition period, the
employer is simply required to retain the records created under the former
rule for five years and provide access to those records for the government,
the employer's employees, and employee representatives, as required by the
final rule at sections 1904.43 and 44. The
proposal did not spell out the procedures that the employer would have to
follow in the transition from the former recordkeeping rule to the new rule. OSHA
realizes that employers will have questions about how they are required to
handle the data collected under the former system during this transition
interval. The final rule maintains the basic structure and recordkeeping
practices of the former system, but it employs new forms and somewhat
different requirements for recording, maintaining, posting, retaining and
reporting occupational injury and illness information. Information collection
and reporting under the final rule will continue to be done on a calendar
year basis. The effective date for the new rule is January 1, 2001. OSHA
agrees with the commenter who stated that beginning the new recordkeeping
system on "Any other date [but January 1] would create an insurmountable
number of problems * * *" (Ex. 27). Accordingly, employers must begin to
use the new OSHA 300 and 301 forms and to comply with the requirements of
this final rule on January 1, 2002. Some
commenters stressed the need for an orderly transition from the former system
to the new system, and pointed out that adequate lead time is needed to
understand and assimilate the changes, make adjustments in their data
management systems, and train personnel who have recordkeeping
responsibilities (see, e.g., Exs. 15: 9, 36, 119, 347, 409). The
transition also raises questions about what should be done in the year 2002
with respect to posting, updating, and retaining the records employers compiled
in 2001 and previous years. In the transition from the former rule to the
present rule, OSHA intends employers to make a clean break with the former
system. The new rule will replace the old rule on the effective date of the
new rule, and OSHA will discontinue the use of all previous forms,
interpretations and guidance on that date (see, e.g., Exs. 21, 22, 15:
184, 423). Employers will be required to prepare a summary of the OSHA Form
200 for the year 2001 and to certify and post it in the same manner and for
the same time (one month) as they have in the past. The following time table
shows the sequence of events and postings that will occur:
The
final rule's new requirements for dual certification and a 3-month posting
period will not apply to the Year 2000 Log and summary. Employers still must
retain the OSHA records from 2001 and previous years for five years from the
end of the year to which they refer. The employer must provide copies of the
retained records to authorized government representatives, and to his or her
employees and employee representatives, as required by the new rule. However,
OSHA will no longer require employers to update the OSHA Log and summary
forms for years before the year 2002. The former rule required employers to
correct errors to the data on the OSHA 200 Logs during the five-year
retention period and to add new information about recorded cases. The former
rule also required the employer to adjust the totals on the Logs if changes
were made to cases on them (Ex. 2, p. 23). OSHA believes it would be
confusing and burdensome for employers to update and adjust previous years'
Logs and Summaries under the former system at the same time as they are
learning to use the new OSHA occupational injury and illness recordkeeping
system. Subpart G. Definitions The
Definitions section of the final rule contains definitions for five terms:
"the Act," "establishment," "health care
professional," "injury and illness," and "you." To
reduce the need for readers to move back and forth from the regulatory text
to the Definitions section of this preamble, all other definitions used in
the final rule are defined in the regulatory text as the term is used. OSHA
defines the five terms in this section here because they are used in several
places in the regulatory text. The Act The
Occupational Safety and Health Act of 1970 (the "OSH Act") is
defined because the term is used in many places in the regulatory text. The
final rule's definition is essentially identical to the definition in the
proposal. OSHA received no comments on this definition. The definition of
"the Act" follows: The
Act means the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et
seq., 29 U.S. 651 et seq.), as amended. The definitions contained in section
(3) of the Act and related interpretations shall be applicable to such terms
when used in this Part 1904. Employee The
proposed rule defined "employee" as that term is defined in section
3 of the Act and added a Note describing the various types of employees
covered by this recordkeeping rule (e.g., "leased
employees," "seasonal employees"). In the final rule, OSHA has
decided that it is not necessary to define "employee" because the
term is defined in section 3 of the Act and is used in this rule in
accordance with that definition. Employer The
proposed rule included a definition of "employer" that was taken
from section 3 of the Act's definition of that term. Because the final rule
uses the term "employer" just as it is defined in the Act, no
separate definition is included in the final rule. Establishment The
final rule defines an establishment as a single physical location where
business is conducted or where services or industrial operations are
performed. For activities where employees do not work at a single physical
location, such as construction; transportation; communications, electric, gas
and sanitary services; and similar operations, the establishment is
represented by main or branch offices, terminals, stations, etc. that either
supervise such activities or are the base from which personnel carry out
these activities. The
final rule also addresses whether one business location can include two or
more establishments. Normally, one business location has only one
establishment. However, under limited conditions, the employer may consider
two or more separate businesses that share a single location to be separate
establishments for recordkeeping purposes. An employer may divide one
location into two or more establishments only when: each of the proposed
establishments represents a distinctly separate business; each business is
engaged in a different economic activity; no one industry description in the
Standard Industrial Classification Manual (1987) applies to the joint
activities of the proposed establishments; and separate reports are routinely
prepared for each establishment on the number of employees, their wages and
salaries, sales or receipts, and other business information. For example, if
an employer operates a construction company at the same location as a lumber
yard, the employer may consider each business to be a separate establishment. The
final rule also deals with the opposite situation, and explains when an
establishment includes more than one physical location. An employer may
combine two or more physical locations into a single establishment only when
the employer operates the locations as a single business operation under
common management; the locations are all located in close proximity to each
other; and the employer keeps one set of business records for the locations,
such as records on the number of employees, their wages and salaries, sales
or receipts, and other kinds of business information. For example, one
manufacturing establishment might include the main plant, a warehouse serving
the plant a block away, and an administrative services building across the
street. The final rule also makes it clear that when an employee telecommutes
from home, the employee's home is not a business establishment for
recordkeeping purposes, and a separate OSHA 300 Log is not required. The
definition of "establishment" is important in OSHA's recordkeeping
system for many reasons. First, the establishment is the basic unit for which
records are maintained and summarized. The employer must keep a separate
injury and illness Log (the OSHA Form 300), and prepare a single summary
(Form 300A), for each establishment. Establishment-specific records are a key
component of the recordkeeping system because each separate record represents
the injury and illness experience of a given location, and therefore reflects
the particular circumstances and hazards that led to the injuries and
illnesses at that location. The establishment-specific summary, which totals
the establishment's injury and illness experience for the preceding year, is
posted for employees at that establishment and may also be collected by the
government for statistical or administrative purposes. Second,
the definition of establishment is important because injuries and illnesses
are presumed to be work-related if they result from events or exposures
occurring in the work environment, which includes the employer's
establishment. The presumption that injuries and illnesses occurring in the
work environment are by definition work-related may be rebutted under certain
circumstances, which are listed in the final rule and discussed in the
section of this preamble devoted to section 1904.5, Determination of
work-relatedness. Third, the establishment is the unit that determines
whether the partial exemption from recordkeeping requirements permitted by
the final rule for establishments of certain sizes or in certain industry
sectors applies (see Subpart B of the final rule). Under the final rule's
partial exemption, establishments classified in certain Standard Industrial
Classification codes (SIC codes) are not required to keep injury and illness
records except when asked by the government to do so. Because a given
employer may operate establishments that are classified in different SIC
codes, some employers may be required to keep OSHA injury and illness records
for some establishments but not for others, e.g. if one or more of the
employer's establishments falls under the final rule's partial exemption but
others do not. Fourth,
the definition of establishment is used to determine which records an
employee, former employee, or authorized employee representative may access. According
to the final rule, employees may ask for, and must be given, injury and
illness records for the establishment they currently work in, or one they
have worked in, during their employment. The
proposed rule defined an establishment as: (1)
A single physical location that is in operation for 60 calendar days or
longer where business is conducted or where services or industrial operations
are performed. (For example: A factory, mill, grocery store, construction
site, hotel, farm, ranch, hospital, central administrative office, or
warehouse.) The establishment includes the primary work facility and other
areas such as recreational and storage facilities, restrooms, hallways, etc. The
establishment does not include company parking lots. (2)
When distinct and separate economic activities are performed at a single
physical location, each activity may represent a separate establishment. For
example, contract construction activities conducted at the same physical
location as a lumber yard may be treated as separate establishments. According
to the Standard Industrial Classification (SIC) Manual, Executive Office of
the President, Office of Management and Budget, (1987) each distinct and
separate activity should be considered an establishment when no one industry
description from the SIC manual includes such combined activities, and the
employment in each such economic activity is significant, and separate
reports can be prepared on the number of employees, their wages and salaries,
sales or receipts, or other types of establishment information. The
final rule modifies this definition in several ways: it deletes the "60
days in operation" threshold, adds language to the definition to address
the concerns of employers who operate geographically dispersed
establishments, describes in greater detail what OSHA means by separate
establishments at one location, and defines which locations must be
considered part of the establishment, and which employee activities must be
considered work-related, for recordkeeping purposes. Each of these topics is
discussed below. Subpart
G of the final rule defines "establishment" as "a single
physical location where business is conducted or where services or industrial
operations are performed. For activities such as construction;
transportation; communications, electric and gas utility, and sanitary
services; and similar operations, the establishment is represented for
recordkeeping purposes by main or branch offices, terminals, stations, etc.
that either supervise such activities or are the base from which personnel
carry out these activities." This part of the definition of
"establishment" provides flexibility for employers whose employees
(such as repairmen, meter readers, and construction superintendents) do not
work at the same workplace but instead move between many different
workplaces, often in the course of a single day. How
the definition of "establishment" must be used by employers for recordkeeping
purposes is set forth in the answers to the questions posed in this paragraph
of Subpart G: (1)
Can one business location include two or more establishments? (2)
Can an establishment include more than one physical location? (3)
If an employee telecommutes from home, is his or her home considered a
separate establishment? The
employer may consider two or more economic activities at a single location to
be separate establishments (and thus keep separate OSHA Form 300s and Form
301s for each activity) only when: (1) Each such economic activity represents
a separate business, (2) no one industry description in the Standard
Industrial Classification Manual (1987) applies to the activities carried out
at the separate locations; and (3) separate reports are routinely prepared on
the number of employees, their wages and salaries, sales or receipts, and
other business information. This part of the definition of
"establishment" allows for separate establishments when an employer
uses a common facility to house two or more separate businesses, but does not
allow different departments or divisions of a single business to be
considered separate establishments. However, even if the establishment meets
the three criteria above, the employer may, if it chooses, consider the
physical location to be one establishment. The
definition also permits an employer to combine two or more physical locations
into a single establishment for recordkeeping purposes (and thus to keep only
one Form 300 and Form 301 for all of the locations) only when (1) the
locations are all geographically close to each other, (2) the employer
operates the locations as a single business operation under common
management, and (3) the employer keeps one set of business records for the
locations, such as records on the number of employees, their wages and
salaries, sales or receipts, and other business information. However, even
for locations meeting these three criteria, the employer may, if it chooses,
consider the separate physical locations to be separate establishments. This
part of the definition allows an employer to consider a single business
operation to be a single establishment even when some of his or her business
operations are carried out on separate properties, but does not allow for separate
businesses to be joined together. For example, an employer operating a
manufacturing business would not be allowed to consider a nearby storage
facility to be a separate establishment, while an employer who operates two
separate retail outlets would be required to consider each to be a separate
establishment. OSHA
received many comments on the proposed definition of
"establishment." These are organized by topic and discussed below. How long must an establishment exist to have a separate OSHA Log. The proposed rule would have
required an establishment to be in operation for 60 days to be considered an
"establishment" for recordkeeping purposes. Under the proposed
definition, employers with establishments in operation for a lesser period
would not have been required to keep a log for that operation. The proposed
60-day threshold would have changed the definition of
"establishment" used in OSHA's former recordkeeping rule, because
that rule included a one-year-in-operation threshold for defining establishments
required to keep a separate OSHA log (Ex. 2, p. 21). The effect of the
proposed change in the threshold would have been to increase the number of
short-duration operations required to maintain separate injury and illnesses
records. In particular, the proposed change would have affected construction
employers and utility companies. The
majority of the comments OSHA received on this issue opposed the decrease in
the duration of the threshold from one year to 60 calendar days. A few
commenters, however, supported the proposed 60-day rule (see, e.g.,
Exs. 15: 9, 133, 310, 369, 425), and some urged OSHA to adopt an even shorter
time-in-operation threshold (see, e.g., Exs. 15: 369, 418, 429). Typical
of the comments favoring an even shorter period was one from the
International Brotherhood of Teamsters (IBT): [t]he
International Brotherhood of Teamsters is encouraged by OSHA's modification
to the definition of an establishment, especially reducing the requirement
for an operation in a particular location from one year to sixty days. The
IBT would strongly support reducing the requirement to thirty days to cover
many low level housing construction sites, and transient operations, similar
to mobile amusement parks (Ex. 15: 369). The
AFL-CIO agreed: "* * * [t]he 60-day time period is still too long. We
believe that to truly capture a majority of these transient worksites, a
30-day time period would be more realistic. A 30-day time period as the
trigger would capture construction activities such as trenching, roofing, and
painting projects which will continue to be missed if a 60-day time period is
used" (Ex. 15: 418). Those
commenters objecting to the proposed 60-day threshold usually did so on
grounds that requiring temporary facilities to maintain records would be
burdensome and costly and would not increase the utility of the records (see,
e.g., Exs. 21, 15: 21, 43, 78, 116, 122, 123, 145, 170, 199, 213, 225,
254, 272, 288, 303, 304, 305, 308, 338, 346, 349, 350, 356, 358, 359, 363,
364, 375, 389, 392, 404, 412, 413, 423, 424, 433, 437, 443, 475). For
example, the Associated Builders and Contractors, Inc. (ABC) remarked: ABC
agrees with OSHA's sentiment of making injury and illness records useful, but
disagrees that sites in existence for as little as 60 days need separate
injury and illness records. The redefinition of "establishment"
will cause enormous problems for subcontractors in a variety of construction
industries. Even employers with small workforces could be on the site of
several projects at any one time, and in the course of the year could have
sent crews to hundreds of sites. Though they may be on such sites for only
brief periods of time, they will be required under this proposal to create
separate logs for each site, increasing greatly their paperwork requirements
without increasing the amount of information available to their employees. Projects
which last less than 90 days do not need separate logs. Requiring separate
logs for short-term projects only increases inefficiency and costs, while
doing nothing for safety (Ex. 15: 412). Many
of these commenters argued that a 60-day threshold would be especially
burdensome if it captured small work sites where posting of the annual
summary or mailing the summary to employees would make little sense because
so few cases would be captured on each Log. The majority of these commenters
suggested that OSHA retain the former one-year duration threshold in the
definition of establishment (see, e.g., Exs. 15: 78, 123, 225, 254,
305, 356, 389, 404). Other
commenters expressed concern that the proposed 60-day threshold would create
an unreasonable burden on employers in service industries like
telecommunications and other utilities, whose employees typically report to a
fixed location but perform tasks at transient locations that remain in
existence for more than 60 days and would thus be classified as new
"establishments" for OSHA recordkeeping purposes (see, e.g.,
Exs. 15: 65, 170, 199, 213, 218, 332, 336, 409, 424). OSHA
has reviewed all of the comments on this issue and has responded by deleting
any reference to a time-in-operation threshold in the definition of
establishment but specifying a one-year threshold in section 1904.30 of the
final rule. In response to comments, OSHA has thus continued the former
one-year threshold rather than adopting the 60-day threshold proposed. Under
the final rule, employers will be required to maintain establishment-specific
records for any workplace that is, or is expected to be, in operation for one
year or longer. Employers may group injuries and illnesses occurring to
workers who are employed at shorter term establishments onto one or more
consolidated logs. These logs may cover the entire company; geographic
regions such as a county, state or multi-state area; or individual divisions
of the company. For example, a construction company with multi-state
operations might have separate logs for each state to show the injuries and
illnesses of short-term projects, as well as separate logs for each
construction project expected to last for more than one year. OSHA
finds, based on the record evidence, that the one-year threshold will create
useful records for stable establishments without imposing an unnecessary
burden on the many establishments that remain in existence for only a few
months. OSHA concludes that the one-year threshold and permitting employers
to keep one Log for geographically dispersed or short-term facilities will
also provide more useful injury and illness records for workers employed in
transient establishments. This will be the case because the records will
capture more cases, which enhances the informational value of the data and
permits analysis of trends. Geographically Dispersed Workplaces. A number of commenters raised issues of
particular importance to the construction and utility industries (see, e.g.,
Exs. 15: 43, 116, 122, 123, 145, 170, 199, 213, 225, 272, 288, 303, 305, 350,
359, 364, 392, 412, 433, 443). In addition to objections about the
60-days-in-operation threshold in the definition of establishment, these
commenters raised concerns about the difficulty of keeping records for a
mobile and dispersed workforce. Representative of these comments is the
statement by Con Edison (Ex. 15: 213): Con
Edison believes that OSHA's proposal to tie its redefinition of a permanent
establishment to a 60-day time frame, as opposed to the present one-year
limit, would be costly, overly burdensome and in some cases unworkable. On
many occasions work must be performed on city streets or in out of the way
areas during the erection of overhead transmission and distribution lines. These
projects may carry on for periods greater than the 60-day period specified
above for designation as an establishment. No permanent structures are
erected at these sites and to require maintenance of records there is
impractical. Con Edison believes that the definition of establishment as set
forth in the 1987 Standard Industrial Classification Manual (see below)
should apply. "For
activities such as * * * electric * * * and similar physically dispersed
operations, establishments are represented by those relatively permanent main
or branch offices, terminals, stations, etc. that are (2) the base from which
personnel operate to carry out these activities. Hence, the individual sites,
projects, fields, networks, lines, or system of such dispersed activities are
not ordinarily considered to be establishments." (SIC Manual, 1987, p.
265). OSHA
agrees that the recordkeeping system must recognize the needs of operations
of this type and has adopted language in the final rule to provide some
flexibility for employers in the construction, transportation,
communications, electric and gas utility, and sanitary services industries,
as well as other employers with geographically dispersed operations. The
final rule specifies, in Subpart G, that employers may consider main or
branch offices, terminals, stations, etc. that are either (1) responsible for
supervising such activities, or (2) the base from which personnel operate to
carry out these activities, as individual establishments for recordkeeping
purposes. This addition to the final rule's definition of establishment
allows an employer to keep records for geographically dispersed operations
using the existing management structure of the company as the recording unit.
Use of this option will also mean that each Log will capture more cases,
which will, as discussed above, improve the chances of discovering patterns
of occupational injury and illness that can be used to make safety and health
improvements. At the same time, by requiring records to be kept for any
individual construction project that is expected to last for one year or
longer, the final rule ensures that useful records are generated for more
permanent facilities. More than one establishment at a single location. OSHA's former rule recognized,
for recordkeeping purposes, that more than one establishment can exist at a
single location, although most workplaces consist of a single establishment
at a single location. The final rule also recognizes that, in some narrowly
defined situations, a business may have side-by-side operations at a single
location that are operated as separate businesses because they are engaged in
different lines of business. In these situations, the Standard Industrial
Classification Manual (OMB 1987) allows a single business location to be
classified as two separate establishments, each with its own SIC code. Like
all government agencies, OSHA follows the OMB classification method and makes
allowances for such circumstances. The
proposal stated that distinct, separate economic activities performed at a
single physical location may each be classified, for recordkeeping purposes,
as a separate establishment. The proposed definition stated that each
distinct and separate economic activity may be considered an establishment
when (1) no one industry description from the Standard Industrial
Classification (SIC) manual includes such combined activities, (2) the
employment in each economic activity is significant, and (3) separate reports
can be prepared on the number of employees, their wages and salaries, sales
or receipts, or other types of establishment information. The final rule is
essentially unchanged from the proposal on this point, but the language has
been modified to make it clear that the employer may employ this option only
in the enumerated circumstances. Several
commenters were in favor of OSHA's proposed definition of separate
establishments as places engaged in separate economic activities (see, e.g.,
Exs. 15: 185, 297, 375) and agreed that when distinct and separate economic
activities are performed at a single physical location, each activity should
be considered a separate establishment. Others,
however, disagreed with the proposed definition of multiple establishments at
a single location (see, e.g., Exs. 15: 194, 305, 322, 346, 347, 348,
389, 409, 424, 431). The comments of the Ford Motor Company (Ex. 15: 347) and
the American Automobile Manufacturing Association (AAMA) (Ex. 15: 409) are
representative: [a]ll
economic activities performed at a single location should be allowed to be
placed on a single log. Many of these locations have only one medical
department, payroll, or management. At many of these locations, separate
reports cannot be prepared on the number of employees per establishment, and
at times many of the employees will work at separate sites within the same
single physical location. To break down the economic activities to record
injuries and illness on different logs is confusing, difficult, and overly
burdensome. United
Parcel Service (UPS) (Ex. 15: 424) added: [t]he
proposal should be amended to make clear that treatment of a different
activity as a separate establishment is optional, not mandatory -- the
proposal currently results in unnecessary ambiguity by saying first that
separate activities "may" be separate establishments, and then
describing situations in which they "should be" considered an
establishment. A requirement that such vaguely defined "economic
activities" be treated as separate "establishments" would be
mistaken: employers would be left to guess what is an "economic
activity" and when it is "separate" from another. Moreover,
such mandatory separate recordkeeping would unnecessarily burden employers
with determining when separate records are required, and with maintaining
such separate records. These
commenters understood the proposed language as requiring employers to keep
separate logs if separate economic activities were being conducted at a
single establishment; what OSHA intended, and the final rule makes clear in
Subpart G, is that an employer whose activities meet the final rule's
definition may keep separate logs if he or she chooses to do so. Thus the
final rule includes a provision that allows an employer to define a single
business location as two separate establishments only under specific, narrow
conditions. The final rule allows the employer to keep separate records only
when the location is shared by completely separate business operations
involved in different business activities (Standard Industrial
Classifications) for which separate business records are available. By
providing specific, narrow criteria, the final rule reduces ambiguity and
confusion about what is required and sets out the conditions that must be met
in order for employers to deviate from the one place-one establishment
concept. OSHA
expects that the overwhelming majority of workplaces will continue to be
classified as one establishment for recordkeeping purposes, and will keep
just one Log. However, allowing some flexibility for the rare cases that meet
the specified criteria is appropriate. The employer is responsible for
determining whether a given workplace meets the criteria; OSHA will consider
an employer meeting these criteria to be in compliance with the final rule if
he or she keeps one set of records per facility. This policy allows an
employer to keep one set of records for a given location and avoid the
additional burden or inconvenience associated with keeping separate records. The
McDonnell Douglas Corporation (Ex. 15: 297) and the American Textile
Manufacturers Institute (ATMI) (Ex. 15: 156) commented on a different
scenario, one in which a single establishment could encompass more than one
physical location. ATMI remarked that: [O]SHA's
definition of establishment as "a single physical location" is too
restrictive. We believe that OSHA should be more flexible since many
industries have primary facilities with secondary work facilities that have
the same local management. For example, in the textile industry, a plant may
use a warehouse that is not physically attached but the plant manager is
responsible for the both facilities. We suggest that the text of the rule be
modified to read: "A single physical location or multiple physical locations
under the same management * * *." OSHA
agrees that there are situations where a single establishment that has a
satellite operation in close physical proximity to the primary operation may
together constitute a single business operation and thus be a single
establishment. For example, a business may have a storage facility in a
nearby building that is simply an adjunct to the business operation and is
not a separate business location. OSHA
believes that there are situations where establishments in separate physical
locations constitute a single establishment. However, under the final rule,
employers will only be allowed to combine separated physical locations into a
single establishment when they operate the combined locations as a single
business operation under common management and keep a single set of business
records for the combined locations, such as records on the number of
employees, their wages and salaries, sales or receipts, and other types of
business information. How
OSHA defines an establishment also has implications for the way company
parking lots and recreation facilities, such as company-provided gymnasiums,
ball fields, and the like are treated for recordkeeping purposes. The 1986 Guidelines
excluded these areas from the definition of establishment and thus did not
require injuries and illnesses occurring to employees at these locations to
be recorded unless the employee was actually performing work in those areas
(Ex. 2, p. 33). The final rule includes these areas in the definition of
establishment but does not require employers to record cases occurring to
employees engaged in certain activities at these locations. For example,
injuries and illnesses occurring at the establishment while the employee is
voluntarily engaged in recreation activities or resulting from a motor
vehicle accident while the employee is commuting to or from work would not
have to be recorded (see section 1904.5). The following paragraphs discuss
OSHA's reasons for taking this approach to the recording of injuries and
illnesses occurring in these locations. Company Parking Lots and Access Roads. Because the former rule excluded company
parking lots and access roads from the definition of establishment, injuries
and illnesses that occurred to their employees while on such parking lots and
access roads were not considered work-related and did not have to be recorded
on the Log; the proposed rule would have continued this practice. Many
commenters urged OSHA not to consider injuries and illnesses occurring in
these locations work-related, principally because, in the view of these
commenters, employers have little control over safety and health conditions
in their parking lots (see, e.g., Exs. 15: 9, 65, 78, 95, 105, 107,
111, 119, 136, 137, 141, 154, 159, 194, 203, 204, 218, 224, 225, 260, 262,
265, 266, 277, 278, 288, 304, 337, 389, 401). The comments of the American
Gas Association (AGA) are representative: "AGA agrees with OSHA that
parking lots and access roads should be excluded from the definition of
establishment and therefore injuries occurring there are not work-related. Likewise,
injuries and illnesses that occur during commuting must also continue to be
excluded" (Ex. 15: 225). The Texas Chemical Council (TCC) agreed with
this position: "[T]CC supports continuing these exceptions. Employers
have limited to no control over variables that contribute to incidents
occurring in parking lots or during commutes to and from work" (Ex. 15:
159). Other
commenters, however, argued that cases occurring on company parking lots and
access roads should be included in the establishment's Log (see, e.g.,
Exs. 15: 61, 157, 310, 407, 432). The Laborer's Health and Safety Fund of
North America pointed to the difficulty of separating cases occurring on the
parking lot from those occurring at other locations within the establishment: [w]e
do not believe that company parking lots should be excluded from the
definition of establishment. The parking lot exclusion seems to be based on
the assumption that parking lots are separate from loading dock and other
work areas. On road construction sites, "parking lots" are
sometimes right in the middle of the work zones where heavy equipment is
operating. Pedestrian employees being hit by traffic and moving machinery are
responsible for about 41.5% of the yearly fatalities in road construction and
maintenance work. We believe that excluding parking lots from the definition
of establishment would open the door to under reporting of workplace
fatalities on construction sites, and discourage construction employers from
establishing safe parking areas for their employees (Ex. 15: 310). The
National Institute for Occupational Safety and Health (NIOSH) presented
statistical data demonstrating the importance of safety and health measures
in employer-owned parking lots: [N]IOSH
does not support continuing the exemption of employer-owned parking lots from
the definition of an establishment. NIOSH recommends that OSHA require
employers to record cases meeting the work relationship criteria that occur
in employer-owned parking areas. Employers have extensive control over the
environmental conditions in their own parking areas. Environmental conditions
that are under employer control include snow and ice accumulation in walk
areas, vicinity lighting around parked cars and entrance ways, and security
provisions in parking areas. In 1993, parking lots and garages were
identified in a study of violence in the workplace as the location where 211
fatal injuries occurred [Toscano and Weber 1995]. Eighty-two of these deaths
were homicides. Parking lots and garages accounted for 3.4% of fatal injuries
and 7.8% of homicides. Data on the total number of injuries and illnesses
occurring in parking lots and garages is unknown. However, in 1992 the
category "parking lots" was listed as the source of injury or
illness for 10,000 cases involving days away from work [U.S. Department of
Labor l995a]. The proportion of parking lots and garages owned by the
employer where fatal and nonfatal injuries occurred is not known (Ex. 15: 407). OSHA
agrees with NIOSH that company parking lots can be highly hazardous and that
employers have considerable control over conditions in such lots. In
addition, OSHA believes that having data on the kinds of injuries and
illnesses occurring on company parking lots and access roads will permit
employers to address the causes of these injuries and illnesses and thus to
provide their employees with better protection. Accordingly, for
recordkeeping purposes, the final rule includes company parking lots and access
roads in the definition of establishment. However, the final rule recognizes
that some injuries and illnesses occurring on company parking lots and access
roads are not work-related and delineates those that are work-related from
those that are not work-related on the basis of the activity the employee was
performing at the time the injury or illness occurred. For example, when an
employee is injured in a motor vehicle accident that occurs during that
employee's commute to or from work, the injury is not considered
work-related. Thus, the final rule allows the employer to exclude from the
Log injuries and illnesses occurring on company parking lots and access roads
while employees are commuting to or from work or running personal errands in
their motor vehicles (see section 1904.5). However, other injuries and
illnesses occurring in parking lots and on access roads (such as accidents at
loading docks, while removing snow, falls on ice, assaults, etc.) are
considered work-related and must be recorded on the establishment's Log if
they meet the other recording criteria of the final rule (e.g., if
they involve medical treatment, lost time, etc.). OSHA
concludes that the activity-based approach taken in the final rule will be
simpler for employers to use than the former rule's location-based approach
and will result in the collection of better data. First, the activity-based
approach eliminates the need for employers to determine where a parking lot
begins and ends, i.e., what specific areas constitute the parking lot, which
can be difficult in the case of combined, interspersed, or poorly defined
parking areas. Second, it ensures the recording of those injuries and
illnesses that are work-related but simply happen to occur in these areas. If
parking lots and access roads are totally excluded from the definition of
establishment, employers would not record any injury or illness occurring in
such locations. For example, employers could fail to record an injury
occurring to an employee performing work, such as building an attendant's
booth or demarcating parking spaces, from the Log. Recreation facilities. Although the proposed rule would have included recreational
facilities in the definition of establishment, it would have excluded, for
recordkeeping purposes, injuries and illnesses occurring to employees who
were voluntarily participating in wellness activities at fitness or
recreational facilities maintained by the employer. As discussed above, OSHA
believes that including in the final rule a list of activities that employers
can use to rebut the presumption of work-relatedness for recordkeeping
purposes will greatly simplify the system for employers and result in the
collection of more meaningful data. Including a list of such activities in
the final rule was supported by many commenters (see, e.g., Exs. 15:
65, 151, 152, 170, 179, 180, 204, 246, 350, 392). The comments of the Tosco
Corporation are representative: "[w]e agree that the recreational
facilities should not be automatically excluded, but rather that the
voluntary use of the facilities govern the work relatedness as OSHA has
indicated. This will make the OSHA regulation consistent with workers
compensation rulings" (Ex. 15: 246). An
even larger number of commenters disagreed with OSHA's proposed approach,
however, arguing that a location-based, rather than activity-based, exclusion
was more appropriate for recordkeeping purposes (see, e.g., Exs. 15:
9, 95, 111, 119, 136, 137, 141, 154, 156, 184, 194, 203, 213, 218, 224, 232,
266, 271, 277, 278, 288, 304, 317, 345, 347, 389, 409, 414, 423, 428, 431). For
example, the law firm of Constangy, Brooks & Smith, LLC, argued that
excluding facilities is simpler than excluding activities: "* * * [t]he
current requirements allow a more simplified analysis of the recreational
facility issue and this analysis should be retained in place of the more
complicated analysis that would be imposed under the Proposed Recordkeeping
Rule" (Ex. 15: 345). Other
employers stressed the concept that changing the exclusion for recreational
facilities would reduce the incentive for employers to provide such
facilities for their employees' use (see, e.g., Exs. 15: 136, 137,
141, 213, 224, 266, 278). The remarks of the Society for Human Resource
Management (SHRM) are typical: "[t]o presume that the employee's usage
of weight room facilities is involuntary may be unrealistic and would likely
result in the closure of employer provided weight rooms, golf courses, and
other facilities which benefit the employees * * *" (Ex. 15: 431). In
the final rule, OSHA has decided to include recreational areas in the
definition of establishment but to include voluntary fitness and recreational
activities, and other wellness activities, on the list of excepted activities
employers may use to rebut the presumption of work-relatedness in paragraph
1904.5(b)(2). OSHA finds that this approach is simpler and will provide
better injury and illness data because recreational facilities are often
multi-use areas that are sometimes used as work zones and sometimes as
recreational areas. Several of the interpretations OSHA has provided over the
years address this problem. For example, the loading dock or warehouse at
some establishments has an area with a basketball hoop that is used for
impromptu ball games during breaks, while at other establishments employees
may use a grassy area to play softball, an empty meeting room for aerobics
classes, or the perimeter of the property as a jogging or bicycling track. Providing
an exception based on activity will make it easier for employers to evaluate
injuries and illnesses that occur in mixed-use areas of the facility. This
approach is also consistent with OSHA's overall approach in the final rule of
using specific activity-based exemptions to allow the employer to rebut the presumption
of work relationship rather than providing exemptions by modifying the
definition of establishment. OSHA also does not believe that this approach
will provide an incentive for employers to eliminate recreational and fitness
opportunities for their employees. Both approaches exempt the same injuries
from recording, but the final rule's approach provides employers with a more
straightforward mechanism for rebutting the presumption of work relationship. OSHA
believes that injuries and illnesses occurring to employees who are present
in recreational areas as part of their assigned work duties should be
recorded on the Log; the final rule thus only permits employers to exclude
recreational activities that are being performed by the employee voluntarily
from their Logs. For example, an injury to an exercise instructor hired by
the company to conduct classes and demonstrate exercises would be considered
work related, as would an injury or illness sustained by an employee who is
required to exercise to maintain specific fitness levels, such as a security
guard. Private homes as an establishment. Two commenters raised the issue of whether
or not private homes could constitute an establishment (see, e.g.,
Exs. 21, 15: 304, 358). The National Federation of Independent Business
(NFIB) stated: "[N]FIB believes that the definition of establishment as
applied to extremely small work sites, including private homes, needs to be
reexamined" (Ex. 15: 304). The Organization Resource Counselors (ORC)
added: "[d]efinition of establishment as applied to extremely small work
sites including private homes needs to be reexamined. The sixty day rule by
itself does not seem unreasonable except that it captures these small work
sites where the requirements for posting or mailing summaries make little
sense" (Ex. 21). In
the final rule, OSHA has not excluded private homes from the definition of
establishment because many private homes contain home offices or other
home-based worksites, and injuries and illnesses occurring to employees
during work activities performed there on behalf of their employer are
recordable if the employer is required to keep a Log. However, the final rule
makes clear that, in the case of an employee who telecommutes from his or her
home, the home is not considered an establishment for OSHA recordkeeping
purposes and the employer is not required to keep a separate Log for the home
office. For these workers, the worker's establishment is the office to which
they report, receive direction or supervision, collect pay, and otherwise
stay in contact with their employer, and it is at this establishment that the
Log is kept. For workers who are simply working at home instead of at the
company's office, i.e., for employees who are telecommuting, OSHA does not
consider the worker's home to be an establishment for recordkeeping purposes,
and the definition of establishment makes this fact clear. OSHA has recently
issued a compliance directive clarifying that OSHA does not and will not
inspect home offices in the employee's home and would inspect a home-based
worksite other than a home office only if the Agency received a complaint or
referral. A fuller discussion concerning the determination of the
work-relatedness of injuries and illnesses that occur when employees are working
in their homes can be found in the discussion of § 1904.5 Determination of
work-relatedness. Miscellaneous issues. Two commenters recommended that OSHA consider excluding injuries and
illnesses occurring to employees while they were present in other areas as
well (Exs. 15: 203, 389). The International Dairy Foods Association (IDFA)
suggested: [i]n
addition, facilities such as cafeterias/lunch/break/rest/locker rooms should
be exempted except for the employees who work in those areas. While it is true
that other workers may occasionally be injured in these areas, the inclusion
of all injury/illness information that occurs in these areas only distorts
the data. OSHA should be concerned with the accuracy of any information it
requires and/or collects and should eliminate any non-relevant or extraneous
information. We believe that this anomaly is easily correctable, and the
result will be a more accurate assessment of hazards associated with a
specific workplace (Ex. 15: 203). OSHA
does not agree with this commenter that injuries and illnesses occurring in
such areas are not work-related. For example, many injuries occurring in
lunch rooms involve slippery floors, which the employer can address by
establishing a system for immediate spill cleanup. However, the final rule
does contain an exception from recordability of cases where the employee, for
example, chokes on his or her food, is burned by spilling hot coffee, etc. (see
paragraph 1904.5(b)). The
United Parcel Service (UPS) recommended that OSHA craft its rule to coincide
with the company's personnel records system, stating "[t]he unit for
which an employer maintains personnel records is presumptively appropriate
and efficient; accordingly, OSHA should not mandate a rule that conflicts
with a company's current personnel units policy" (Ex. 15: 424). OSHA
recognizes that employers would prefer OSHA to allow companies to keep
records in any way they choose. However, OSHA believes that allowing each
company to decide how and in what format to keep injury and illness records
would erode the value of the injury and illness records in describing the
safety and health experience of individual workplaces and across different
workplaces and industries. OSHA has therefore decided not to adopt this
approach in the final rule. Two
commenters raised the issue of centralized recordkeeping as it related to the
proposed definition of establishment. The General Electric Company (GE)
stated: [G]E
does not support the redefinition of establishment to mean a single physical
location that is in operation for 60 calendar days or longer. GE field staff
frequently establish such establishments and the illness and injury recording
and reporting for these sites has been done at central locations. The
required data therefore is already collected but the new definition would
substantially increase the administrative burden for employers, without
providing any additional value. Currently, field employees can report an
injury to one well-trained individual who is able to properly administer the
program and keep all required documentation. Under this new rule, the
employer would need to train a significantly greater number of employees on
the proper method for recording injuries and illnesses, keeping
documentation, and ensuring the submission of this information to the central
office for long-term retention. Further, turnover in the field service
operations necessitates an ongoing training program. GE would prefer to train
field service employees on GE's expectations for safe performance and how to
perform their jobs safely, rather then training field service employees on
OSHA recordkeeping regulations (Ex. 15: 349). OSHA
will continue to allow employers to keep their records centrally and on
computer equipment, and nothing in the final rule would preclude such
electronic centralization. OSHA believes that the definition of establishment
in the final rule will have no impact on the ability of the employer to keep
records centrally; however, the final rule does continue to require employers
to summarize and post the records for each establishment at the end of the
year. The
North Carolina Department of Labor (Ex. 15: 186) suggested that OSHA add a
note cross-referencing the rule's exceptions for work relationship in parking
lots, to assist readers in locating them. OSHA has not added a note to the
definition but believes that the list of exceptions to the presumption of
work-relationship will achieve the objective this commenter intended. In
addition, OSHA has included a table showing changes from the former system to
the new system in the compliance assistance and training materials it is
distributing to employers and employees. Health
Care Professional The
final rule defines health care professional (HCP) as "a physician or
other state licensed health care professional whose legally permitted scope
of practice (i.e. license, registration or certification) allows the
professional independently to provide or be delegated the responsibility to
provide some or all of the health care services described by this
regulation." The
proposed rule used the term "health care provider," defined as a
person operating within the scope of his or her health care license,
registration or certification. The final rule uses the term "health care
professional" to be consistent with definitions used in the medical
surveillance provisions of other OSHA standards (see, e.g., the
methylene chloride final rule (29 CFR 1910.1052). OSHA
recognizes that injured employees may be treated by a broad range of health
care practitioners, especially if the establishment is located in a rural
area or if the worker is employed by a small company that does not have the
means to provide on-site access to an occupational nurse or a physician. Although
the rule does not specify what medical specialty or training is necessary to
provide care for injured or ill employees, the rule's use of the term health
care professional is intended to ensure that those professionals providing
treatment and making determinations about the recordability of certain
complex cases are operating within the scope of their license, as defined by
the appropriate state licensing agency. The
rulemaking record reflects a wide diversity of views on this topic. Many
commenters thought the proposed definition was much too broad, leaving
"[t]he door open for unqualified individuals to make medical
diagnoses" (see, e.g., Exs. 15: 342, 201). Many commenters also
argued that the proposed definition could be misinterpreted (see, e.g.,
Exs. 31, 15: 131, 342, 397). Specifically, many employers thought the
definition could be interpreted to permit untrained or unlicensed individuals
to treat employees or to make medical diagnoses that would determine the
recordability of certain an injuries or illnesses (see, e.g., Exs. 15:
304, 355, 433). Additionally, some commenters interpreted the proposed
definition to mean that any time an individual who was certified or trained
in cardiopulmonary resuscitation (CPR) or first aid administered treatment,
the case would automatically be recordable (see, e.g., Exs. 15: 116,
132, 323, 341, 356). For example, the National Federation of Independent
Business noted: [u]nlike
licensed practitioners, those who are registered or certified are not
consistently judged against stringent objective criteria. Oftentimes
registration is obtained by paying a fee and certification usually entails
attending training courses on how to administer first aid. In any given place
of employment it is common to find at least one employee who is trained and certified
in first aid care. Simple actions on the part of such an employee could
become recordable instances under this proposal. This would only serve to
erroneously inflate statistics thus making the work site log an inaccurate
reflection of occupational injuries and illnesses (Ex. 15: 304). Consequently,
many commenters advocated qualifying the proposed definition by limiting it
to providers with specific types of training, such as licensed physicians
(see, e.g., Exs. 15: 42, 105) or other providers, such as dentists,
psychiatrists, or clinical psychologists (see, e.g., Exs. 15: 126,
312, 342, 410, 433, 443) and/or practitioners operating under their
direction, such as physician assistants and nurses (see, e.g., Exs.
15: 116, 131, 334, 344, 441). Some
commenters proposed eliminating the words "registration" and
"certification" from the definition because these terms have
different meanings in different states, and in some states, some providers
can pay to be certified or registered even though their credentials are
inadequate (see, e.g., Exs. 15: 199, 272, 303, 375). A few commenters
also noted that some registrations and certifications are given by
professional associations rather than state agencies. For example, according
to the American Academy of Physician Assistants: [w]hile
many health care providers receive professional certification through a
private certifying body (e.g. board certification in cardiology for a
doctor), this "certificate" is not automatically tied to any state
recognized credential or scope of practice permitting the provision of health
care services. PAs, for example, are certified by the National Commission on
Certification of Physician Assistants. This certification is not synonymous
with a state certificate or license. As the proposed rule is currently
worded, an NCCPA-certified PA or a physician who is board certified in
cardiology would qualify as a "health care provider." However, OSHA
would not be assured that the PA or physician was practicing medicine with a
license and in compliance with their state scope of practice. Further, it
would be illegal in all states for a PA or a physician to provide health care
services based solely on their professional certification (Ex. 15: 81). Still
others feared that registered or certified "alternative medicine"
providers, such as acupuncturists and massage therapists, might influence an
employer's recordkeeping decision (see, e.g., Exs. 15: 184, 317, 430). The
proposed definition was, however, supported by several unions, large and
small employers, and professional associations representing those health care
personnel who might be excluded by a more restrictive definition (see, e.g.,
Exs. 15: 9, 72, 137, 170, 204, 278). These commenters generally advocated a
broader definition because such a definition would recognize the various
types of health care personnel who may be called on to attend an injured
employee (see, e.g., Exs. 15: 181, 350, 376, 392, 417). Typical of
these comments was one from The Fertilizer Institute: [O]SHA
should not qualify and limit this definition to personnel with specific
training due to the wide variation in health care support and training
available throughout the country. Because not all facilities are located in
large metropolitan areas where a wide variety of medical training is
available, it may be difficult, if not impossible to satisfy
Administration-specified minimal training (Ex. 15: 154). These
commenters did agree, however, that to ensure the availability of quality
health care to employees, health care professionals must be licensed or
certified by the state(s) in which they practice and must operate within the
scope of that license or certification (see, e.g., Exs. 24, 15: 81,
181, 350, 417). In particular, several commenters stressed the need to define
the term "health care professional" as one practicing "in
accordance with the laws of the applicable jurisdiction" (Ex. 15: 409;
see also Exs. 15: 308, 349). Additionally,
the AFL-CIO cautioned that using a broad definition of the term "health
care provider" in this recordkeeping rule should not supersede or in any
way affect the provisions of many OSHA health standards that specifically
require a physician to perform medical surveillance of occupationally exposed
employees: [a]ll
of OSHA's 6(b) health standards, except for Bloodborne Pathogens, require
that the medical examinations required by the rules be carried out by a
physician or under the supervision of a licensed physician. Many of these
standards further require that a physician evaluate the results of the exam
and provide a diagnosis and opinion as to whether any adverse medical
condition has been detected. Some standards such as lead, benzene, and
formaldehyde also require the physician to determine whether or not an
employee should be removed from his or her job due to occupational exposures. [In
contrast], the proposed recordkeeping rule would allow diagnoses for
conditions covered by these standards (e.g., lead poisoning,
asbestosis, byssinosis) to be made by any health care provider operating within
the scope of their license. We are concerned that this discrepancy and
inconsistency may lead to confusion about the requirements for medical
surveillance under OSHA's health standards (Ex. 15: 418). Therefore,
the AFL-CIO recommended that OSHA insert a provision in the proposed
recordkeeping rule that would ensure that it is not interpreted as
superseding the requirements of those standards. OSHA shares this concern and
does not intend the use of the term "health care professional" in
this rule to modify or supersede any requirement of any other OSHA regulation
or standard. On
the basis of the record, OSHA finds that there is a broad consensus among
commenters that only qualified health care professionals should make
diagnoses and treat injured employees, and that state licensing agencies are
best suited to determine who may practice and the legal scope of that
practice (see, e.g., Exs. 15: 31, 65, 95, 154, 184, 201, 288, 308,
335, 349, 409, 425). The definition in the final rule ensures that, although
decisions about the recordability of a particular case may be made by a wide
range of health care professionals, the professionals making those decisions
must be operating within the scope of their license or certification when
they make such decisions. Injury
or Illness The
final rule's definition of injury or illness is based on the definitions of
injury and illness used under the former recordkeeping regulation, except
that it combines both definitions into a single term "injury or
illness." Under the final rule, an injury or illness is an abnormal
condition or disorder. Injuries include cases such as, but not limited to, a
cut, fracture, sprain, or amputation. Illnesses include both acute and
chronic illnesses, such as, but not limited to, a skin disease, respiratory
disorder, or systemic poisoning. The definition also includes a note to
inform employers that some injuries and illnesses are recordable and others
are not, and that injuries and illnesses are recordable only if they are new,
work-related cases that meet one or more of the final rule's recording
criteria. Former rule's definition. The former rule also defined these terms broadly, as did the
proposal. The text of the former recordkeeping rule did not include a
definition of injury or illness; instead, the definitions for these terms
were found on the back of the OSHA 200 Log and in the former Recordkeeping
Guidelines (Ex. 2, p. 37). The definition of occupational injury found in
the Guidelines was: Occupational
injury is any injury such as a cut, fracture, sprain, amputation, etc., which
results from a work accident or from an exposure involving a single incident
in the work environment. Note:
Conditions resulting from animal bites, such as insect or snake bites, or
from one-time exposure to chemicals are considered to be injuries. An
occupational illness was defined as: [a]ny
abnormal condition or disorder, other than one resulting from an occupational
injury, caused by exposure to environmental factors associated with
employment. It includes acute and chronic illnesses or diseases which may be
caused by inhalation, absorption, ingestion, or direct contact. The
former rule's definitions of injury and illness captured a very broad range
of injuries, including minor injuries such as scratches, bruises and so
forth, which the employer then tested for work-relatedness and their
relationship to the recording criteria. The former rule's definition of
illness was even broader, including virtually any abnormal occupational
condition or disorder that was not an occupational injury. However, the
recording of illnesses under the former rule was more inclusive than is the
case for the final rule being published today because the former rule
required employers to record every occupational illness, regardless of
severity. The final rule applies the same recording criteria to occupational
illnesses as to occupational injuries, and thus rules out minor illnesses
(see the Legal Authority section and the preamble discussion accompanying
section1904.4). The
former rule's broad definition of illness was upheld in a 1989 Occupational
Safety and Health Review Commission decision concerning the recording of
elevated levels of lead in the blood of workers employed at a battery plant
operated by the Johnson Controls Company. In that decision (OSHRC 89-2614),
the Occupational Safety and Health Review Commission found that: [a]s
the Secretary states in his brief on review "The broad applicability of
the term "illness" adopted in the BLS Guidelines serves this
purpose [to set explicit and comprehensive recording requirements designed to
obtain accurate and beneficial statistics regarding the causes of
occupational disease] by including health related conditions which may not
look like, or may not yet be, treatable illnesses." Accordingly, for the
purposes of the Secretary's recordkeeping regulations promulgated pursuant to
sections 8(c)(1) and (2) of the Act, we accept the Secretary's interpretation
of "illness" that includes blood lead levels at or above 50
ug/100g. Proposed rule's definition. OSHA proposed a new, broad definition that
encompassed both occupational injury and occupational illness. This approach
was consistent with one of the goals of the proposal, to eliminate the
distinction between injury and illness entirely for recordkeeping purposes. OSHA's
proposed definition of an injury or illness was: "Injury
or illness" is any sign, symptom, or laboratory abnormality which
indicates an adverse change in an employee's anatomical, biochemical,
physiological, functional, or psychological condition (61 FR 4058). Comments on the proposed definition. Many commenters remarked that the proposed
definition of injury and illness was too broad and all encompassing (see, e.g.,
Exs. 25, 33, 15: 95, 120, 156, 174, 176, 199, 201, 213, 231, 273, 282, 301,
305, 318, 331, 346, 348, 375, 383, 386, 395, 420, 424, 425, 430). The views
of the National Association of Manufacturers (NAM) are representative of this
view: [a]
second option is to re-examine the scope of the proposed definition of the
term "injury or illness," which appears to go well beyond the
normal understanding of the medical profession. That definition is so broad
it includes virtually any change in the status of the employee. In contrast,
Dorland's Illustrated Medical Dictionary defines the term "illness"
as a condition marked by "pronounced deviation from the normal healthy
state." Accordingly, the NAM believes the proposed definition of the
term "injury or illness" would be far more accurate and credible if
it were modified to read substantially as follows "Any sign, symptom, or
laboratory abnormality which evidences a significant adverse change in an
employee's anatomical, biochemical, physiological, functional, or
psychological condition, and which evidences a state of ill-health or a
reasonable probability that ill-health will result (Exs. 25, 15: 305). The
American Iron and Steel Instute (AISI) also objected to the definition,
stating that: OSHA
also fails to provide any guidance as to what constitutes a
"change" in an employee's condition. If a person is tired at the
end of the day, does that constitute a change in his physical condition? If a
person is grumpy at the end of a long shift, has he undergone a change in his
psychological condition? If a person gains weight, has his
"anatomical" condition "changed"? OSHA's proposed
definition would force employers to address these questions but provides none
of the answers. * * * Finally, in addition to inviting gross intrusions into
employees' lives, the concept of an "adverse" psychological change
is so vague and burdened with value judgments that it simply is beyond
definition. Several
other commenters urged OSHA to add the word "significant" and the
phrase "and which evidences a state of ill-health or a reasonable
probability that ill-health will result" to the final rule's definition
of injury or illness (see, e.g., Exs. 15: 169, 174, 199, 282, 305,
318, 346, 348, 375, 386, 420, 425). A
number of commenters stated that they did not understand the word
"functional" in the definition, and particularly how its meaning
differs from that of the word "physiological" in the definition
(see, e.g., Exs. 15: 313, 352, 353, 424). Several commenters also
suggested the deletion from the definition of an occupational injury or
illness any reference to signs, symptoms or laboratory abnormalities (see, e.g.,
Exs. 33, 15: 176, 231, 273, 301). The Pacific Maritime Association (Ex. 15:
95) suggested that OSHA delete the proposed definition of injury or illness
and replace it with the following: "[an injury or illness] is any
condition diagnosed by a health care provider." Two commenters suggested
excluding psychological conditions from the definition of injury or illness
(Exs. 15: 395, 424). A discussion of mental conditions and OSHA's reasons for
including them in the definition is included in the preamble discussion of
work-relationship at section 1904.5, Determination of work relatedness. OSHA
has decided to continue to include psychological conditions in the final
rule's definition of injury and illness because many such conditions are
caused, contributed to, or significantly aggravated by events or exposures in
the work environment, and the Agency would be remiss if it did not collect
injury and illness information about conditions of these types that meet one
or more of the final rule's recording criteria. In
the final rule, OSHA has relied primarily on the former rule's concept of an
abnormal condition or disorder. Although injury and illness are broadly
defined, they capture only those changes that reflect an adverse change in
the employee's condition that is of some significance i.e. that reach the
level of an abnormal condition or disorder. For example, a mere change in
mood or experiencing normal end-of-the-day tiredness would not be considered
an abnormal condition or disorder. Similarly, a cut or obvious wound,
breathing problems, skin rashes, blood tests with abnormal results, and the
like are clearly abnormal conditions and disorders. Pain and other symptoms
that are wholly subjective are also considered an abnormal condition or
disorder. There is no need for the abnormal condition to include objective
signs to be considered an injury or illness. However, it is important for
employers to remember that identifying a workplace incident as an occupational
injury or illness is only the first step in the determination an employer
makes about the recordability of a given case. OSHA
finds that this definition provides an appropriate starting point for
decision-making about recordability, and that the requirements for
determining which cases are work-related and which are not (section 1904.5),
for determining which work-related cases reflect new injuries or illnesses
rather than recurrences (section 1904.6), and for determining which new,
work-related cases meet one or more of the general recording criteria or the
additional criteria (sections 1904.7 to 1904.12) together constitute a system
that ensures that those cases that should be recorded are captured and that
minor injuries and illnesses are excluded. In response to the desire of many
commenters for greater clarity, OSHA has added language to the definition of
injury and illness to make it clear that many injuries and illnesses are not
recordable, either because they are not work-related or because they do not
meet any of the final rule's recording criteria. In
general, all of those commenters who opposed the proposed definition wished
OSHA to revise the definition so that it would provide an initial screening
mechanism for excluding minor injuries and illnesses, even before the status
of the case vis-a-vis the geographic presumption or recording criteria was
assessed. OSHA recognizes that the proposed language referring to any adverse
change was too broad, and has returned to the former language requiring that
the change reach the "abnormal condition" level. OSHA recognizes
that this is still a broad definition -- deliberately so. After reviewing
this issue thoroughly, OSHA finds that a system that initially defines injury
and illness broadly and then applies a series of screening mechanisms to
narrow the number of recordable incidents to those meeting OSHA and statutory
criteria has several advantages. First, by being inclusive, this system
avoids the problem associated with any "narrow gate" approach: that
some cases that should be evaluated are lost even before the evaluation
process begins. Second, this approach is consistent with the broad
definitions of these terms that OSHA has used for more than 20 years, which
means that the approach is already familiar to employers and their
recordkeepers. Third, adding terminology like "significant" and
"reasonable probability that ill-health will result," as commenters
suggested, would unnecessarily complicate the first step in the evaluation
process. Accordingly,
the definition of injury and illness in the final rule differs from the
former definition only in minor respects. The definition is based on the
former rule's definitions, simply combining the separate definitions of
injury and illness into a single category, to be consistent with the
elimination of separate recording thresholds for occupational injuries and
occupational illnesses. As discussed above, OSHA has elected to continue to
use a broad definition of illness or injury. The definition in the final rule
also makes it clear that each injury and illness must be evaluated for
work-relatedness, to decide if it a new case, and to determine if it is
recordable before a covered employer must enter the case in the OSHA
recordkeeping system. "You" The
last definition in the final rule, of the pronoun "you," has been
added because the final rule uses the "you" form of the
question-and-answer plain-language format recommended in Federal
plain-language guidance. "You," as used in this rule, mean the employer,
as that term is defined in the Act. This definition makes it clear that
employers are responsible for implementing the requirements of this final
rule, as mandated by the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) VIII. Forms This
section of the preamble includes a copy of the final forms package. For a
discussion of the contents, the old forms, the proposed forms, and comments
to the proposed forms, refer to the preamble discussion of Subpart C. 1904.6
Forms. The forms fit on 11" by 14" legal sized paper. The forms do
not appear in the Federal Register due to printing considerations. To
obtain a copy contact OSHA's Publications Office at (202) 693-1888, order the
forms from the OSHA Internet home page (http://www.osha.gov) or download the forms from the OSHA home page. IX. State Plans The
25 States and territories with their own OSHA approved occupational safety
and health plans must adopt a rule comparable to the 29 CFR part 1904
recordkeeping and reporting occupational injuries and illnesses regulation
being published today, with the exception of the requirements of § 1904.41
Annual OSHA Injury and Illness Survey of Ten or More Employers. These 25
States are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon,
Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin
Islands, Washington, and Wyoming; and Connecticut and New York (for State and
local Government employees only). The
former 29 CFR 1952.4 regulation required that States with approved
State-Plans under section 18 of the OSH Act (29 U.S.C. 667) must adopt
occupational injury and illness recording and reporting regulations which
were "substantially identical" to those set forth in 29 CFR part
1904 because the definitions used by the Federal and State governments for
recordkeeping purposes must be identical to ensure the uniformity of the
collected information. In addition, former § 1952.4 provided that employer
variances or exceptions to State recordkeeping or reporting requirements in a
State-Plan State would be approved by the Bureau of Labor Statistics. Similarly,
a State was permitted to require supplemental reporting or recordkeeping
data, but that State was required to obtain approval from the Bureau of Labor
Statistics to ensure that the additional data would not interfere with
"the primary uniform reporting objectives." The
proposed revision of 29 CFR 1952.4 would have retained the same substantive
requirements for the State-Plan States, but reflected the organizational
shift of some recordkeeping responsibilities from the Bureau of Labor
Statistics to OSHA in 1990. See also the memorandum of understanding between
OSHA and BLS effective July, 1990 (Ex. 6). OSHA
received no comments directed specifically to proposed section 1952.4. Section
1952.4 of the final rule parallels the provisions of § 1904.37, State
Recordkeeping Regulations, the section of the final rule implementing the
requirements proposed as § 1904.14, Recordkeeping Under Approved State Plans.
The discussion of the comments and OSHA's decisions on the few issues
associated with this section can be found in the preamble discussion for §
1904.37, State Recordkeeping Regulations. Section 1952.4 of the final
regulation differs from that of the former regulation in that (1) the final
rule requires the States to consult with and obtain approval from OSHA rather
than BLS when promulgating supplementary fatality, injury or illness
recording and reporting requirements; (2) the final rule allows the State to
grant variances from the fatality, injury and illness reporting and recording
requirements for State and local governments with Federal approval; and (3)
Federal OSHA rather than the BLS is responsible for issuing all private
sector and federal variances from the 29 CFR part 1904 requirements. OSHA Data Initiative Surveys In
1997, OSHA issued a final rule at § 1904.17, OSHA Surveys of 10 or More
Employers that required employers to submit occupational injury and illness
data to OSHA when sent a survey form. The 1904.17 rule enabled the Agency to
conduct a mandatory survey of the 1904 data, which has been named the OSHA
Data Initiative. Section 1904.41 of the final rule, Annual OSHA Injury and
Illness Survey of Ten or More Employers, simply carries forward the employer
reporting requirements of the former § 1904.17, with only minor editorial
changes. When
OSHA issued the 1997 rule, the Agency determined that the States were not
required to adopt a rule comparable to the federal § 1904.17 rule (62 FR
6441). Paragraph 1952.4(d) has been added to the final rule to continue to
provide the States with the flexibility to participate in the OSHA Data
Initiative under the Federal requirements or the State's own regulation. At
its outset, Federal OSHA conducted the OSHA data collection in all of the
states, including those which administer approved State-Plans. However, in
recent years, Federal OSHA has collected data only in the State-Plan States
that wish to participate. For example, in 2000, the states of Oregon, South
Carolina, Washington, and Wyoming elected not to participate in the annual
OSHA survey and employers in those States were not surveyed. OSHA plans to
continue to allow the individual States to decide, on an annual basis,
whether or not they will participate in the OSHA data collection. If
a State elects to participate, the State may either adopt and enforce the
requirements of section 1904.41 as an identical or more stringent State
regulation, or may defer to the Federal regulation and Federal enforcement
with regard to the mandatory nature of the survey. If the State defers to the
Federal section 1904.41 regulation, OSHA's authority to implement the survey
is not affected either by operational agreement with a State-Plan State or by
the granting of final State-Plan approval under section 18(e). OSHA's
authority under the Act to take appropriate enforcement action if necessary
to compel responses to the survey and to ensure the accuracy of the data
submitted by employers will be exercised in consultation with the State in
State-Plan states. X. Final Economic Analysis 1. Introduction A. Background OSHA
is revising its regulation on Recording and Reporting Occupational Injuries
and Illnesses, which is codified at 29 CFR part 1904. Executive Order 12866,
issued by President Clinton on September 30, 1993, requires OSHA to assess
the benefits and costs of regulations, and to design regulations to impose
the least burden on society consistent with achieving the Agency's regulatory
objective. This economic analysis, therefore, was developed to describe the
potential impacts of the final revisions to 29 CFR part 1904. The
final revisions to 29 CFR part 1904 reflect the results of studies of
occupational injury and illness reporting and recordkeeping. One study of the
accuracy and quality of occupational safety and health statistics was
conducted by the National Research Council of the National Academy of
Sciences (NAS), under contract to the Bureau of Labor Statistics (BLS).(4)
The NAS report focused on changes to the overall strategy for occupational
health and safety statistics and reporting, rather than on specific methods
for improving the existing recordkeeping system. Reform of the occupational
health and safety recordkeeping system was also the topic of a conference
convened by the Keystone Center, an independent, non-profit organization that
specializes in mediating multi-party disputes in the areas of science,
technology, environmental, and health concerns. The Keystone Conference
brought together 46 representatives from labor unions, corporations, the
health professions, government agencies, Congressional staff, and academia to
engage in a year-long dialogue. The Conference's final report(5)
was an important source of ideas for some of the changes being made in OSHA's
final recordkeeping rule. In
1990, the Department of Labor transferred from the Bureau of Labor Statistics
(BLS) to OSHA the responsibility for developing recordkeeping regulations and
their accompanying guidelines. Although BLS continues to compile occupational
injury and illness statistics, OSHA determines what information needs to be
recorded by employers. This
economic analysis measures the potential regulatory impacts of the final
revisions to 29 CFR part 1904. Much of the data for this analysis derives
from a study conducted for OSHA by Meridian Research.(6) The data in the Meridian study,
however, have been updated to reflect more recent data on the numbers of
establishments affected and on rates of occupational illnesses and injuries,
as well as the evidence submitted to the record in the course of this rulemaking. B. Overview of the Final Regulation The
final regulation revises an existing rule, Recording and Reporting
Occupational Injuries and Illnesses (29 CFR part 1904). Specific changes
include changes in coverage, editorial and formatting changes, and changes in
specific provisions that affect the requirements for recording and reporting.
Changes are summarized in Table X-1. (1)
Editing and Format Changes Language and Structure of the Rule. The final regulation reflects a complete
rewriting of 29 CFR part 1904. The new version of the rule is written in
plain language, using a question and answer format. This style is designed to
make the rule clearer, more accessible, and easier to understand. In
addition, the final rule contains many questions that employers frequently
ask about recordkeeping, and it provides answers to those questions. By
including these questions and answers in the rule itself, OSHA has provided
employers with a readily available source of information on how to record
particular cases. This means that the quality of the data being recorded will
be higher than was the case in the past. Table
X-1: Changes in Recordkeeping Requirements
The
rule also has been completely restructured. Its provisions have been put into
a logical sequence, with topics addressed as an employer would encounter them
when complying with the rule. The numbering of sections within 29 CFR part
1904 has been entirely revised. The
final rule includes considerable detail not found in the former rule. This
detail generally reflects interpretations that OSHA has made over time. By
including these in the rule itself, OSHA intends to make the rule far
clearer. Interpretations and related details are formatted as check lists,
for ease of interpretation. (2)
Specific Changes in Regulatory Provisions (a)
Changes in Coverage Former rule.
The former rule exempted all employers with 10 or fewer employees and all
employers in specific low-hazard retail and service industry sectors from
routinely keeping OSHA records. The industry exemptions were based on injury
and illness data at the 2-digit SIC code level. Final rule.
The final rule continues the former rule's exemption of all employers with 10
or fewer employees from routine recordkeeping requirements. The final rule
also exempts all employers in specific lower-hazard retail and service
industry sectors, as the former rule did, from maintaining OSHA records
routinely. The final rule exempts 3-digit SIC industries if their average
lost workday injury (LWDI) rate was at or below 75% of the overall private
sector LWDI average rate in the most recent BLS occupational injury and
illness data. Change.
Updating the list of exempted industry categories by relying on 3-digit,
rather than 2-digit, data in the final rule results in 17 formerly exempt
industries being covered under the final rule (see Table X-2). Employers in
16 industries that were covered by the former rule are exempted by the final
rule (see Table X-3). The exemptions in the final rule are better targeted
than those in the former rule, because high-hazard 3-digit industries
embedded within lower-hazard 2-digit industries are not exempted, while
low-hazard 3-digit industries embedded within higher-hazard 2-digit
industries are exempted. Employers in the newly covered industries will
experience additional costs and benefits from these new requirements, while
newly exempted employers will also experience changes in costs and benefits. These
costs and benefits are quantified in this economic analysis. (b)
Changes to the OSHA Forms Former rule.
The former rule required the employer to maintain two forms, the OSHA 200 Log
and Summary of Occupational Injuries and Illnesses (one form including both a
Log and Summary), and the OSHA 101 Supplementary Record of Occupational
Injuries and Illnesses. The employee who supervised the production of the
annual summary was required to certify it. Final rule.
The final rule requires the employer to maintain up to four records: the OSHA
300 Log of Work-Related Injuries and Illnesses, the OSHA 300-A Summary of
Work-Related Injuries and Illnesses, the OSHA 301 Injury and Illness Incident
Report, and, if one or more employees experiences an injury or illness case
classified as a "privacy concern" case, a confidential list of
those employees. (See discussion of privacy provisions below.) Change.
The new OSHA 300 Log is smaller than the Former OSHA 200 Log, fits on legal
sized pages (8 ½" x 14"), has fewer columns and a more logical,
user friendly design. Each injury and illness must be recorded within 7
calendar days, rather than the 6 working days allowed under the former rule. Although
the 300 Log requires essentially the same information as the former 200 Log,
it is easier to complete, which will result in cost savings for employers. These
savings are quantified in this economic analysis. The
OSHA 300-A Summary Form replaces the summary portion of the former OSHA 200
Log and Summary Form. Each covered employer must complete the summary at the
end of the year and post it for 3 months, while the former rule required
posting for one month. The longer posting period will result in only minimal
additional costs. The final rule also requires the employer to review the
records at year end for accuracy before summarizing them, requires additional
certification of accuracy by a company executive, and requires additional
data on the average employment and hours worked at the establishment. These
changes will result in higher quality data, and will also add costs for
employers. These costs are quantified in this economic analysis. The
OSHA 301 Incident Report is only slightly different from the OSHA 101 Form
that it replaces. Some data elements have been added to the form. In
addition, the form has been redesigned to obtain better responses to the
questions and to accommodate employee access to the forms while still
protecting privacy (see discussion below). Costs of recording additional data
elements are quantified in this economic analysis. (c)
Changes in the Recording Criteria The
final rule includes a number of changes that will affect the number of
recorded cases, and thus potentially affect the costs and costs savings
associated with the regulation. Some of these changes will result in more
cases being recorded, as follows: (1) Changes to the definitions of medical
treatment and first aid, (2) change to the criterion for recording cases of
hearing loss, and (3) change to the criterion for recording needlestick and
sharps injuries. Other
changes will result in fewer cases being recorded, as follows: (1) Exemptions
from the requirement to consider certain cases work-related, (2) elimination
of different recording criteria for injuries and illnesses, (3) changes to
the requirements for recording injuries and illnesses with days away or job restriction/transfer,
(4) changes to the criteria for recording cases of tuberculosis, and (5)
elimination of separate recording criteria for musculoskeletal disorders. Because
the final rule makes a number of changes, some of which increase the number
of recordable injuries and illnesses and some of which decrease the number of
recordable cases, it is difficult to estimate the precise impact of each
change. OSHA expects that these changes, with two exceptions, will generally
have the effect of offsetting each other, with the result that approximately
the same number of injury and illness cases will be recorded under the final
rule as were recorded under the former rule. The costs and cost savings
associated with each small definitional change have not been quantified in
this economic analysis. However, the changes made in the recording of hearing
loss cases and the recording of needlestick and sharps injury cases will
result in quantifiable increases in the number of recorded injuries. The cost
effects of these changes are specifically identified in this economic
analysis. OSHA
recognizes that individual employers will be affected differently by the
changes made in the final rule and that some employers will record more cases
under the final rule while others will record fewer. OSHA also finds that the
overall effect of the changes made to the final rule is to greatly ease the
determination of recordability, and has quantified these cost savings in this
economic analysis. (i)
Changes to the Determination of Work-Relationship Former rule.
Under the former rule, work-relationship was established if work either
caused or contributed to the injury or illness, or aggravated a pre-existing
condition. Injuries and illnesses that occurred on the employer's premises
were presumed to be work-related, with three exceptions: cases that occurred
in a parking lot or recreational facility, cases that occurred while the
employee was present at the workplace as a member of the general public and
not as an employee, and cases where injury or illness symptoms arose at work
but were the result of a non-work-related injury or illness were not required
to be recorded. Final rule.
Work relationship is established if work either caused or contributed to the
injury or illness, or significantly aggravated a pre-existing condition. The
final rule continues the former rule's geographic presumption of work
relationship but adds several additional exceptions to the need to record
cases involving: voluntary participation in wellness programs, eating and
drinking food or beverages for personal consumption, intentionally
self-inflicted wounds, personal grooming, or the common cold or flu. The
final rule also contains an exception that limits the recording of mental
illness cases. Change.
The final rule changes the requirement to record cases in which any degree of
aggravation of a preexisting injury or illness has occurred; now, the work
environment must have significantly aggravated a pre-existing injury or
illness before the case becomes work-related. The final rule also adds
several new exceptions to the geographic presumption of work relationship. Both
of these changes will result in fewer cases being recorded under the final
rule. (ii)
Elimination of Different Recording Criteria for Injuries and Illnesses Former rule.
Under the former rule, employers were required to record all work-related
deaths, all illnesses, and injuries that resulted in days away from work,
restricted work, transfer to another job, medical treatment beyond first aid,
or loss of consciousness. The employer was required to decide if the case was
either an injury or illness; injuries included all back cases and any case
caused by an instantaneous event, while illnesses were any abnormal condition
or disorder caused by a non-instantaneous event. The employer was required to
record every illness case, regardless of severity. Final rule.
Under the final rule, the employer is not required to determine whether a
case is an injury or illness to decide whether or not to record the case. A
case is recordable if it results in death, days away from work, job
restriction or transfer, medical treatment beyond first aid, loss of
consciousness, or if the case is a significant injury or illness diagnosed by
a physician or other licensed health care professional. Additional criteria
are included for cases of hearing loss, tuberculosis, and needlestick
injuries and the rule clarifies how to record musculoskeletal disorders and
cases involving medical removal or work restriction under OSHA's standards. Change.
The new general recording criteria eliminate the recording of minor illness
cases, which will result in fewer cases being recorded by employers, and
lower costs. The new criteria for recording hearing loss and needlestick
cases will increase the number of cases and the costs associated with
recording. (iii)
Days Away and Job Restriction/Transfer Former rule.
Under the former rule, employers were required to record lost workday cases,
which were defined as any case that resulted in days away from work and/or
days of restricted work or job transfer. Restricted work included any case
when because of injury or illness (1) the employee was assigned to another
job on a temporary basis, (2) the employee worked at a permanent job less
than full time, or (3) the employee worked at his or her permanently assigned
job but could not perform his or her routine duties. Routine duties were
defined as any activity the employee would be expected to perform even once
during the course of the year. The employer was required to record any case
that involved restricted work, even if the restriction occurred only on the
day the injury or illness occurred. Employers
were also required to count days as the number of scheduled days away or
restricted, i.e., to use a counting system that included only scheduled work
days and excluded any days off, such as weekends and days the plant was
closed. Final rule.
The final rule continues to require employers to record cases with days away
from work, restricted work or transfer to another job. For restricted
work/job transfer, the final rule focuses on whether or not the employee is
permitted to perform his or her routine job functions, defined as the duties
he or she would have performed at least once per week before the injury or illness.
If the work restriction is limited to the day of the injury or illness, and
none of the other recording criteria are met, the case is not recordable. The
final rule continues to require the employer to count days away from work and
days of restricted work/job transfer. However, the days are counted using
calendar days, and employers may stop the count at 180 days. The employer
also may stop counting restricted days if the employer permanently modifies
the employee's job in a way that eliminate the routine functions the employee
was restricted from performing. Change.
The final rule shifts the focus of the definition of restricted work to the
routine functions of the job and away from the former rule's focus on any
activity the injured or ill employee might have performed during the work
year, and eliminates the requirement to record cases that involve
restrictions only on the day of injury or illness. These changes will result
in fewer cases being recorded, and will have the effect of reducing costs for
employers. The
final rule's changes to the method of counting days, i.e., relying on
calendar days instead of scheduled work days, will simplify the counting
requirements and produce more reliable information on injury and illness
severity. Both the change to the calendar day counting method and the capping
of days away and days restricted or transferred at 180 days will have the
effect of reducing costs for employers. (iv)
Changes to the Definitions of Medical Treatment and First Aid Former rule.
The former rule defined medical treatment as any treatment, other than first
aid treatment, administered to injured or ill employees. Medical treatment
involved the provision of medical or surgical care for injuries through the
application of procedures or systematic therapeutic measures. The
former regulation defined first aid as "any one-time treatment, and any
follow up visit for the purpose of observation, of minor scratches, cuts,
burns, splinters, and so forth, which do not ordinarily require medical care.
Such one-time treatment, and follow up visits for the purpose of observation
are considered first aid even though provided by a physician or registered
professional personnel." The
former Recordkeeping Guidelines provided two lists of treatments
employers could use to determine whether a particular treatment was first aid
or medical treatment for recordkeeping purposes. For example, the use of
prescription drugs was generally considered medical treatment, except when
only a single dose was prescribed. Physical therapy, hot or cold therapy, or
soaking therapy was considered medical treatment if it was used on a second
or subsequent visit to medical personnel. Treatment of any third or second
degree burn was considered medical treatment. The former rule's lists
provided a useful starting point for determining which treatments were first
aid or medical treatment, but also caused some confusion because, if a
particular treatment was not on either list, the employer was not sure how to
classify the treatment. Final rule.
The final rule defines medical treatment as the management and care of a
patient to combat disease or disorder. For the purposes of Part 1904, medical
treatment does not include: visits to a physician or other licensed health
care professional solely for observation or counseling; the conduct of
diagnostic procedures, such as x-rays and blood tests, including the
administration of prescription medications used solely for diagnostic
purposes (e.g., eye drops to dilate pupils); or first aid. The
final rule then defines first aid by listing 14 first aid treatments, such as
using non-prescription drugs at non-prescription strength, using bandages or
butterfly bandages, using hot or cold therapy, using splints or slings to
transport an accident victim, and drinking liquids for relief of heat stress. Change.
The final rule changes the definitions of which treatments are considered
first aid and medical treatment. Each change will result in some change in
the number of cases that are recorded, as shown in the following table.
The
overall effect of the changes to the definitions of medical treatment and
first aid is difficult to determine. OSHA believes that they generally offset
each other, but data to confirm this are not available. (v)
Changes in the Recording of Needlestick and Sharps Injuries Former rule.
Under the former rule, an employer was required to record a needlestick or
sharps injury involving human blood or other potentially infectious material
if the case resulted in death, days away from work, restricted work, medical
treatment beyond first aid, or loss of consciousness, or if the employee
seroconverted (contracted HIV or hepatitis infection). Final rule.
Under the final rule, an employer is required to record all
needlestick or sharps injuries involving human blood or other potentially
infectious material. These cases are recorded as privacy concern cases. Change.
The final rule will require the recording of an additional estimated 501,640
needlestick and sharps injury cases. The costs associated with this change
have been quantified in this economic analysis. This change will also
significantly simplify recording for those employers who recorded 88,925
needlestick and sharps injuries under the former rule, resulting in cost
savings for those cases. These cost savings have been quantified in this economic
analysis. (vi)
Changes in the Recording of Hearing Loss Former rule.
Under OSHA's interpretations of the former rule, an employer was required to
record a hearing loss of 25 decibels in one or both ears, averaged over three
frequencies, compared to the employee's baseline audiogram. Work-relatedness
was presumed if the employee was exposed to noise at or above an 8-hour time
weighted average of 85 decibels. Final rule.
The final rule requires an employer to record any hearing loss that reaches
the level of a standard threshold shift (STS), defined by the occupational
noise standard as a 10 decibel shift in hearing, averaged over three
frequencies, in one or both ears, compared to the employee's baseline
audiogram. Work-relatedness is presumed if the employee was exposed to noise
at or above an 8-hour time weighted average of 85 decibels. The
employer must check a separate box on the OSHA Log to identify hearing loss
cases. Change.
The additional check box will result in improved statistical data on occupational
hearing loss. The change to a more sensitive threshold (10 decibel shift
rather than 25 decibel shift) for recording occupational hearing loss will
result in the recording of additional cases. Based on audiometric data
collected from 22 companies in SICs 20 through 29, 33, 34, 35, 39, 49, and
90, OSHA estimated that, with the new threshold, 250,000 more workers in
manufacturing and 25,000 more workers elsewhere in general industry would
sustain recordable hearing loss annually. The costs associated with this
increase have been quantified in this economic analysis. (vii)
Changes in the Recording of Tuberculosis Former rule.
Under OSHA's interpretation of the former rule, an employer was required to
record an active case of tuberculosis (TB) or a positive TB skin test. If the
employee was employed in one of five high risk industries, as defined by the
Centers for Disease Control and Prevention (CDC), the case was presumed to be
work related. Final rule.
Under the final rule, a case of tuberculosis is recorded if the employee has
active TB or has a positive skin test. The case is considered work-related if
the employee has been occupationally exposed at work to another person
(client, patient, co-worker) with a known, active case of tuberculosis. The
employer may subsequently remove or line out the case if a medical
investigation shows that the case was caused by a non-occupational exposure. Change.
The final rule eliminates the "special industries" presumption of
work-relatedness. OSHA believes that this change will reduce the number of
recorded TB cases, and thus reduce costs somewhat. However, data to estimate
the cost savings associated with this change are not available. (viii)
Changes in the Recording of Musculoskeletal Disorders (MSD) Former rule.
Under the former rule, MSD cases were recorded differently based on whether
they were occupational injuries or occupational illnesses. If the case was an
MSD injury, it was recorded if it resulted in days away from work,
restricted work, job transfer, or medical treatment beyond first aid. If the
case was an MSD illness, it was recorded if it resulted in: (1)
Objective findings: --
A diagnosis by a health care provider (carpal tunnel, tendinitis, etc.) --
Positive test results (Tinel's, Finkelstein's, Phalen's, EMG) --
Signs (redness, swelling, loss of motion, deformity) OR (2)
Symptoms combined with days away from work, restricted work, or medical
treatment beyond first aid. Injury
MSD cases were considered to be "new cases" if they resulted from
new (additional) workplace events or exposures. Illness MSD cases were
treated in the same way or were subjected to a "30 day rule"
whereby if an ill employee did not return to the health care provider for
care after 30 days the case was considered resolved. If the same employee
reported later with additional MSD problems, the case was evaluated for
recordability as a new illness. Final rule.
Under the final rule, MSD cases are recorded using the same criteria as those
for other injuries and illnesses. Cases are recorded if they result in days
away from work, restricted work/job transfer, or medical treatment beyond
first aid. Recurrences are also handled just as other types of injuries and
illnesses are. The
employer must check a separate box on the Log for MSD cases to permit
separate data on these disorders to be collected. Change.
The final rule simplifies the recording of MSDs and collects improved
statistical information on these disorders on the 300 Log. Because the final
rule does not require the automatic recording of diagnosed disorders,
physical signs, and positive test results, it will generally require
employers to record fewer MSD cases, resulting in some cost savings. However,
the magnitude of these cost savings is not known. (d)
Change in Ownership Former rule.
Under the former rule an employer who acquired a business establishment was
required to retain the OSHA records of the prior owner. Each owner was
responsible for the records only for that period of the year that each owned
the business. Final rule.
Under the final rule, when a business establishment changes owners, each
owner is responsible for the OSHA records only for that period of the year
that each owned the business. The prior owner is required to transfer the
records to the new owner, and the new owner is responsible for retaining
those records. Change.
The final rule differs from the former rule by requiring the prior owner to
transfer the records to the new owner. Any new costs imposed by this
requirement are extremely small and have not been quantified in this economic
analysis. (e)
Employee Involvement Former rule.
The former rule involved employees in the recordkeeping process in two ways:
through posting of the annual summary of occupational injuries and illnesses
for one month, and by allowing access to the OSHA 200 Log by employees,
former employees, and their representatives. Final rule.
The final rule involves employees in the process to a greater extent than
formerly: it requires the employer to set up a system for accepting injury
and illness reports from employees and requires the employer to tell each
employee how to report a work-related injury or illness. The final rule also
requires the employer to post the annual summary for three months. Employees,
former employees, and their representatives have the right to one free copy
of the 300 Log, the injured or ill employee or a personal representative has
a right to one free copy of the 301 (Incident Report) for his or her case,
and authorized employee representatives have a right to one free copy of a
portion of the 301 form for all injuries and illnesses at the establishment
he or she represents. Change.
The final rule will improve employee reporting of work-related injuries and
illnesses and allow improved access to the information in the records,
including one free copy of each record requested. OSHA finds that these
provisions will increase costs for employers, and these costs have been
quantified in the economic analysis. (f)
Privacy Protections Former rule.
The former rule had no provisions to protect the privacy of injured or ill
workers when a coworker or employee representative was allowed access to the
OSHA 200 Log. The employer was required to provide the Log with names intact. Final rule.
The final rule protects the privacy of injured or ill workers when a coworker
or employee representative accesses the records by prohibiting the employer
from entering the employee's name for certain "privacy concern"
cases. A separate, confidential list of case numbers and employee names must
be kept for these cases. An employee representative can access only part of
the information from the 301 form, and the employer must withhold the
remainder of the information when providing copies. With certain exceptions,
if the employer provides the information to anyone other than a government
representative, an employee, a former employee, or an employee
representative, the names and other personally identifying information must
be removed from the forms. In addition, separation of the summary form will
eliminate accidental disclosure of employee names during the posting of the
summary information. Change.
The final rule protects injured or ill employees' privacy in several ways, e.g.,
by limiting the distribution of injured or ill employees' names, by not
recording the employee's name in privacy concern cases, and by providing
employee representatives access to only part of the Form 301. The costs of
keeping a separate, confidential list for privacy concern cases have been quantified
in the economic analysis. (g)
Computerized and Centralized Records Former rule.
The former rule allowed the employer to keep the OSHA 200 Log on computer
equipment or at a location other than the establishment, and required that
the employer have available a copy of the Log current to within 45 calendar
days. The former rule had no provisions for keeping the OSHA 101 form off
site or on computer equipment. Final rule.
The final rule allows all forms to be kept on computer equipment or at an
alternate location, providing the employer can produce the data when it is
needed to provide access to a government inspector, employee, or an employee
representative. There is no need to keep records at the establishment at all
times. Change.
The final rule provides the employer with greater flexibility for keeping
records on computer equipment and at off-site locations. These costs savings
have been quantified in the economic analysis. Reporting
of Fatality and Catastrophe Incidents Former rule.
The former rule required the employer to report any workplace fatality, or
any incident involving the hospitalization of 3 or more employees to OSHA
within 8 hours. Final rule.
The final rule requires the employer to report any workplace fatality, or any
incident involving the hospitalization of 3 or more employees to OSHA within
8 hours. The final rule does not require the employer to report to OSHA fatal
or multiple hospitalization incidents that occur on commercial airlines,
trains and buses; or fatality/catastrophe incidents from a motor vehicle
accident on a public highway. Change.
The final rule requires employers to report fewer incidents to OSHA, which
will result in cost savings. These cost savings have not been quantified in
the economic analysis. (3)
Qualitative Overview of Impacts Forms The
largest impact of the final rule's revised provisions on recordkeeping at the
individual establishment will be in the direction of cost savings and will
come from the plain language rewriting of the rule itself and the new forms. These
changes in language, organization, and format will reduce the burden on
employers and recordkeepers in several ways. The clearer language and
streamlining will allow the entire rule to be read more quickly and with
greater comprehension. It will also be possible to obtain a good
understanding of the rule in a single reading (which will be particularly
helpful for establishments with very few or no recordable incidents). Finally,
the organization and format make it far easier to get quick answers to
specific questions, because the answers are part of the final rule itself
rather than being included in a separate document, the Recordkeeping
Guidelines for Occupational Injuries and Illnesses (the "Blue
Book"). 2. Industry Profile OSHA's
former regulation for Recording and Reporting Occupational Injuries and
Illnesses, 29 CFR part 1904, covered most industries in the economy. The
principal exceptions were the finance, insurance, and real estate sector,
some retail trade industries, and some service industries. This chapter
describes the changes in coverage, as well as key characteristics of the
industries that will be covered under the final rule. A. Changes in Industries Covered The
former rule (with one exception) covered or exempted industries at the
two-digit SIC level. The final rule fine tunes this coverage in the finance,
insurance, and real estate, retail trade, and service sectors by extending
coverage to some high-hazard three-digit SICs in two-digit SICs that were not
covered by the former rule and exempting some low-hazard three-digit SICs in
two-digit industries that were covered by the former rule. These changes, by
two-digit SICs, are as follows: Industries
covered under the former rule that would continue to be covered under the
final rule :(7) Agriculture
(SIC 01-02), Industries
exempted under the former rule that would continue to be exempted: Apparel
and Accessory Stores (SIC 56), Two-digit
industries that were not covered under the former rule but will have some
three-digit industries within them covered under the final rule: Automobile
Dealers (SIC 55), Two-digit
industries that were covered under the former rule but will have some or all
three-digit industries within them exempted under the final rule: Building
Materials & Garden Supplies (SIC 52), Table
X-2 shows the specific three-digit industries that were formerly exempted and
to which the final rule will extend coverage. Table X-3 shows the specific
three-digit industries that were formerly covered and which the final rule
will exempt. Exempting
an industry means that employers with establishments in that industry do not
have to keep the OSHA Form 300 (the Log of Occupational Injuries and
Illnesses), the Annual Summary (OSHA 300-A), and OSHA Form 301 (the Incident
Record) or their equivalents. The final rule does not exempt establishments
from the obligation to report fatalities or multiple hospitalization
accidents to OSHA, nor does it exempt an employer from the requirement to
maintain records if notified by the Bureau of Labor Statistics that it is a
participant in the annual Occupational Injuries and Illnesses Survey or by
OSHA that it has been selected to report under the OSHA Data Initiative. B. Characteristics of Covered Establishments (1)
Number of Establishments Table
X-4 shows the estimated number of establishments, by industry, covered by the
final regulation. Data for agriculture (SICs 01 and 02) are taken from the
1997 Census of Agriculture. Data for the remaining SICs are taken from a
compilation of 1996 data by the U.S. Census Bureau for the Small Business
Administration (SBA) to reflect parent company control of establishments. Firms
that have 10 or fewer employees,(8) which are exempt from the
final regulation because of their size, are excluded from Table X-4. Table
X-2. -- Formerly Exempt Industries That the Final Recordkeeping Rule Covers
*
Only the 3-digit SICs shown in the second column are covered by the rule;
those within the 2-digit SIC that are not listed are still exempt from the
requirement to keep OSHA records routinely. Table
X-3. -- Formerly Covered Industries Exempted by the Final Rule
Table
X-4 -- Establishments Required by the Final Rule Routinely To Keep
Occupational Injury/Illness Records
a
Consists of Lumber & Other Building Materials (SIC 521); Paint, Glass,
& Wallpaper Stores (SIC 523); Retail Nurseries & Garden Stores (SIC
526); and Mobile Home Dealers (SIC 527). The
final regulation covers an estimated total of 1,365,985 establishments
belonging to 699,712 employers. The number of establishments covered by the
rule represents a net increase of 4.6 percent over the 1,306,418
establishments covered by the former regulation. This increase in the number
of establishments covered results from the changes made to the scope of the
final rule. (2)
Number of Recordable Cases Table
X-4 also shows the number of recordable cases of occupational injury and
illness, by industry, covered by the final regulation. These are taken from
unpublished data from the 1998 BLS Survey of Occupational Injury and Illness. The
final regulation will annually capture an estimated total of 5,828,477
occupational injury and illness cases. Of these cases, 275,000 represent
additional hearing loss cases and 501,640 represent additional needlestick
and sharps injuries anticipated to occur in SIC 80. The needlestick and
sharps number represents 85 percent of the estimated 590,165 needlestick and
sharps injuries occurring in SIC 80 (63 FR 48250, September 9, 1998; Ex.
3-172V, Docket No. H370A), since OSHA estimates that approximately 15 percent
of such injuries were being recorded under the former rule. Since not all of
SIC 80 is covered by the final rule, this figure is likely to overstate the
number of recordable cases to some extent. Exclusive
of the 275,000 additional hearing loss cases and the 501,640 additional
needlestick and sharps injuries, the final regulation will capture an
estimated 5,051,837 cases annually. This is an increase of 3 percent over the
4,907,081 cases captured by the former rule. This increase in capture
reflects changes in the scope of the rule that are designed to target the regulation
more precisely to high-risk industries in the retail and service sectors of
the economy. This increase in the rule's capture efficiency, or
cost-effectiveness, is reflected by the fact that the industries that are
newly covered under the final rule average 2.6 times as many cases per
covered establishment as the industries the final rule would newly exempt. 3. Costs A. Overview of the Analysis (1)
Background This
chapter assesses the changes in compliance costs associated with the changes
the Occupational Safety and Health Administration (OSHA) is making to 29 CFR
part 1904, the Agency's Recording and Reporting Occupational Injuries and
Illnesses rule, and its associated forms and instructions. The analysis
relies in part on methodology and estimates provided in a study conducted for
OSHA by Meridian Research, Inc. The Meridian analysis has been updated to
reflect more recent data as well as changes that OSHA has made to the
regulation in the interval since the Meridian report was prepared, and to reflect
comments on the proposed rule. The
great majority of the establishments covered by the rule are small, i.e.,
have fewer than 20 employees. On average, a covered establishment records 4
occupational injury and illness cases per year, and the recordkeeping
decisions involved in these cases are generally straightforward and easy to
make (e.g., the injuries involve lacerations, slips and falls, or
fractures). Unlike other OSHA rules, the recordkeeping rule does not require
employers to implement engineering controls, change employee work practices,
provide protective equipment, or take other costly actions to protect their
employees' safety and health. Instead, the costs of this rule are based on
the costs associated with the time the recordkeeper and others spend in
maintaining the records and overseeing the recordkeeping system. OSHA's
estimates of the time necessary to perform each step of the recordkeeping
process, including the time to consider and record each case, maintain the
Log, and perform other recordkeeping tasks, have been reviewed and commented
on by the public and approved by the Office of Management and Budget in
connection with the process required by the Paperwork Reduction Act of 1995. Even
if OSHA's estimates of the time involved in making, determining, and
overseeing the records involved in the recordkeeping system are low, for
example, by a factor of two or so, the costs imposed by the final rule are
low in comparison with the benefits of the system and are readily affordable
by covered establishments. (See the Impacts section of this economic
analysis.) Because
the final regulation makes a number of changes, some of which increase the
amount of information employers must maintain and others that simplify
recordkeeping and reduce the burden, it is difficult to estimate the precise
impact of a given change on establishments in particular industries. Moreover,
most individual changes have only a minor impact on burdens, whether positive
or negative. Accordingly, the analysis groups together changes to a specific
portion of the recordkeeping activities, such as maintaining the Log or
filling out the individual report of injury, and (for the most part) assesses
the net impact of the group of provisions, rather than the impact of each
provision individually. The
analysis reflects the fact that the final regulation is a revision of a
former regulation. Thus many of the impacts are changes in the burden of
doing something that is already required. Wherever this is the case, the
burden under the former and final regulations will be the same if the
activities are unchanged. In addition, small changes in burden estimates,
both positive and negative, may offset each other. (2)
Analytical Approach Scope. The
costs of the final rule depend in part on the scope of the rule, i.e., on the
industries that are covered. As noted in Chapter II, affected industries fall
into three groups, depending on their inclusion or exemption under the former
and final rules. Impacts differ for each of these three groups: --
For industries covered under the former rule and the final rule, impacts are
the costs employers will incur to comply with changes made in a regulatory
provision. --
For industries covered by the former rule but exempted under the final rule,
impacts consist of cost savings equal to the cost of compliance employers
incurred under the former rule. --
For industries exempted under the former rule but covered by the final rule,
impacts are the total cost of compliance employers will incur under the final
rule. In
examining the costs of this rule, it is critical to remember certain basic
characteristics of affected facilities. On average, facilities subject to
recordkeeping have about 50 employees and record about four injuries and
illnesses a year. Because the size distribution of facilities is somewhat
skewed, the majority of establishments record fewer than four injuries and
illnesses a year and have fewer than 20 employees. Some commenters appeared
to be unaware of the small number of injuries and illnesses recorded by the
typical affected establishment when commenting on the proposal. For example,
the comment of one commenter that the typical establishment will need to
train 2 to 4 recordkeepers (Ex. 15-375) is clearly not reasonable because the
typical establishment covered by this rule employs about 50 employees and
records a total of four injuries and illnesses a year. The
impacts of changes in specific regulatory provisions are generally related to
one of two factors: §
Costs that are essentially
fixed costs for an establishment are estimated on a per-establishment basis
and multiplied by the number of affected establishments. §
Costs that vary with the
number of cases recorded are estimated on a per-case-recorded basis and
multiplied by the number of such cases recorded. Other Parameters. Burdens are estimated as number of minutes (per establishment or per
case) to comply with each provision. Most of the costs are based on the
assumption that recordkeeping tasks will be conducted by someone with the
skill level of a personnel specialist who would be qualified both to obtain
and to enter the necessary data. The wage rate for a Personnel Training and
Labor Relations Specialist -- $19.03, or $26.32 including fringe benefits (9)
-- is used for this cost. Where the time of a company official is called
upon, the estimated labor cost is based on the hourly rate for an Industrial
Production Manager -- $26.38, or $36.48 including fringe benefits. Cost
estimates for many specific tasks are also influenced by the fact that almost
all establishments will also have to gather information on work-related
injuries and illnesses for insurance and workers' compensation purposes. In
many cases, the data that employers must collect and provide for these
purposes are considerably more detailed than those required by OSHA. Even
OSHA recordable injuries and illnesses that turn out, in the end, not to be
workers' compensation claims are likely to be investigated to determine their
status in relation to the workers' compensation system. As a result, much of
the basic data gathering necessary to the recording of injuries and illnesses
has already been done independent of the OSHA recordkeeping requirements,
and, in most cases, making the OSHA record simply involves copying
information from other sources to the OSHA form. (3)
Overview of Estimates The
estimated net impact of the revisions to the recordkeeping rule is a cost of
$38.6 million per year. Estimated net costs for establishments covered by the
former rule that will continue to be covered by the final rule are relatively
minor, and the estimated 119,720 establishments that OSHA has exempted from
the final rule will incur substantial savings. The chief cost increases will
be to the 179,287 establishments brought under the scope of OSHA's
recordkeeping rule for the first time. B. Initial Costs of Learning the Recordkeeping System (1)
Initial Costs to Establishments Already Covered of Becoming Familiar With the
Revised Recordkeeping System Recordkeepers
in establishments that were covered by the former regulation and that will
continue to be covered under the final regulation will need to become
familiar with the changes in the recordkeeping system associated with the
final rule even before an injury or illness occurs. OSHA originally estimated
that this initial familiarization would require 15 minutes per such
establishment. Some commenters objected to this estimate as too low. (See,
for example, Exs. 15: 119, 15: 357, 15: 375, 15: 395.) For example, one commenter
(Ex. 15: 395) stated that "No person could give even a superficial
reading to this material [the proposed rule] in 15 minutes." Another
commenter (Ex. 15: 375) stated that this was "not enough time for one
person to even read through the rule and the preamble one time." OSHA
does not believe that experienced recordkeepers will need to read the entire
preamble, or even the entire rule, in order to familiarize themselves with
the new recordkeeping changes. For the most part, the new system continues the
concepts, practices, and interpretations developed under the former rule and
thus is well known to recordkeepers. OSHA believes that most recordkeepers
will avail themselves of the summaries of the changes in the rule provided by
OSHA or by a wide variety of other sources. The recordkeepers' thorough
knowledge of the recordkeeping system will suffice to cover most aspects of
the rule. Nor does OSHA agree that the typical recordkeeper, who needs to
record only 4 injuries and/or illnesses a year, needs to study every change. For
example, a recordkeeper relying on OSHA's summary information on the
differences between the former and the revised rule only needs to make a
mental note to the effect that injuries and illnesses occurring in parking
lots are treated differently under the revised rule, but would not have to
know the details of the changes until (if ever) the recordkeeper actually has
an injury or illness that occurred in a parking lot. Nevertheless, as a
result of the comments received on the prior proposed time estimates, OSHA
has raised its familiarization estimate to 20 minutes per establishment for
facilities with prior OSHA recordkeeping experience. This estimate covers the
time needed for an experienced recordkeeper to learn the basics of the new
system, but assumes that such a recordkeeper, who records an average of four
cases per year, need not learn the details of the system for dealing with
unusual cases until, and if, they arise; instead, this recordkeeper is
assumed to examine specific issues later and as needed, when issues arise in
the course of the recording of actual cases. The time attributed in this
analysis to the recording of individual cases (discussed below) includes the
time needed to understand the details of the individual case. It is assumed
that this subsequent learning will occur as recordkeepers enter the data;
that is, the time that OSHA estimates will be initially required to complete
both Form 300 and Form 301 entries includes the time that the Agency
estimates will be needed for additional familiarization with issues related
to the entry being made. The costs for this subsequent recording activity are
discussed in Part D of this section of the economic analysis. The initial
familiarization cost is a one-time cost that will not recur. Accordingly,
this cost was annualized over ten years using a 7 percent discount rate. The
net annualized costs of this initial familiarization activity are $1,482,384.(10) (2)
Costs of Learning the Basics of the Recordkeeping System De Novo Establishments
required to keep OSHA records will incur the costs associated with learning
about the recordkeeping system from scratch whenever a new person takes over
the recordkeeping job as a result of staff turnover. OSHA assumes that 20
percent of covered establishments will experience such staff turnover in any
given year. Establishments that are newly covered by the regulation will also
incur the costs of learning the recordkeeping system de Novo. Establishments
that are newly exempted under the regulation, of course, will save the staff
turnover costs formerly associated with recordkeeping. At
the time of the proposal, OSHA estimated that, under the former regulation,
new personnel would require a 30-minute orientation to learn the basics of
the recordkeeping system and 25 minutes to learn the newer, simpler
recordkeeping system. Many commenters believed that these estimates were too
low. (See, for example, Exs. 15: 119, 15: 170, 15: 357, 15: 375.) After
reviewing the record, OSHA agrees that the estimates in the Preliminary
Economic Analysis did not adequately capture the average amount of time
required to learn the system for a person without previous knowledge of OSHA
recordkeeping. OSHA has revised its average estimate of the time for learning
the new recordkeeping system de Novo to one hour and has revised the
average estimate of the time it would have taken a recordkeeper to learn the
previous recordkeeping system to 1.5 hours. (In other words, OSHA believes
that its prior estimate of the average amount of time required to learn the
former recordkeeping system -- 30 minutes -- was too low.) Although
OSHA's revised average estimates are lower than the estimates made by some
commenters, OSHA believes that the Agency's estimates appropriately reflect
the average amount of time new recordkeepers will need to learn the basics of
the system. Again, new recordkeepers are assumed not to learn all the details
of the new system up front, such as exactly when an off-site injury is
considered work-related or how to classify injuries occurring in lunch rooms,
until such a case actually arises in the workplace. Since unusual cases and
those falling within the exceptions are relatively rare, recordkeepers will
generally choose to obtain detailed case-specific information only when it is
needed. New recordkeepers need only to know that such exceptions exist and
that further study of the rule will be necessary in the relatively unlikely
event that such an injury or illness occurs. OSHA's estimates of the time
required to record each case (discussed further below) include the time for
the recordkeeper to study the instructions to learn how to address specific
issues that may arise when recording specific types of injuries or illnesses
(e.g., noise-induced hearing loss or work-related TB cases). OSHA
believes that the new system is much simpler than the old. Many
simplifications, e.g., the use of calendar days, capping of days away
cases, have been made to the rule to save effort. This additional simplicity,
as well as improved outreach materials to explain the new regulation, will,
OSHA believes, result in significantly reducing the length of time required
to learn the system. OSHA estimates that learning the basics will take, on average,
one hour. This will save 30 minutes compared to the learning time that would
have been required for the former system. Continuously Covered Establishments. Establishments that were covered under the
former regulation and continue to be covered under the final regulation will
save 30 minutes, compared with the time needed under the former rule,
whenever staff turnover requires a new recordkeeper. At a 20 percent turnover
rate, the net annualized savings for this learning activity under the final
rule are $3,123,394.(11) Newly Exempted Establishments. Establishments that were covered under the
former regulation but are exempted under the final regulation will incur a
saving of 90 minutes whenever staff turnover would have required a new
recordkeeper. At a 20 percent turnover rate, the net annualized savings of
eliminating the need for this learning activity are $945,309.(12) Newly Covered Establishments. Establishments that were exempt under the
former regulation but are covered under the final regulation will incur two
types of costs: All establishments will incur an initial learning cost of one
hour per establishment. Since this is a one-time cost that will not recur,
the cost was annualized over ten years using a 7 percent discount rate. In
addition, these establishments will incur an ongoing cost of 60 minutes
whenever staff turnover requires a new recordkeeper to become familiar with
the system. The net annualized costs of this learning activity are $671,856 +
$943,756 = $1,615,612.(13) (3)
Total Cost Impact Table
X-5 summarizes the total annualized cost impacts of initially learning the
recordkeeping system under the final regulation. The total net annualized
impact is estimated to be a saving of $970,757. C. Fixed Costs of Recordkeeping A
number of the cost items associated with the final rule do not vary with the
size of the establishment or the number of cases reported. These include the
costs of setting up the Log, posting the Summary, certifying the Summary, and
providing data from the Log to OSHA inspectors. Impacts in this category are
related to the number of establishments covered and the specific changes in
recordkeeping requirements. TABLE
X-5 -- Familiarization Costs Associated With the Final Rule
a Based
on an hourly cost of $26.32. (1)
Setting Up the Log and Posting the Summary Both
the former rule and the final rule require that the Log be set up at the
beginning of the year and that the Annual Summary be posted on February 1 of
the year following the year to which the data pertain. The final regulation
requires that the Summary remain posted for three months, while the former
regulation required that it remain posted for only one month. OSHA
estimates that the process of setting up the Log and filling out and posting
the Summary under the former regulation required 8 minutes. OSHA has no
reason to believe that this burden will change as a result of the final rule.
Most of the concern expressed in the comments on the proposed recordkeeping
rule related to the burden commenters perceived to be associated with
updating the posted Summary form when revisions were made and mailing out the
Summary as an alternative to posting (see, e.g., Exs. 15: 288, 303,
395). Updating the posted Summary was never OSHA's intent, and the final rule
has dropped the mailing alternative, so that both of these concerns are now
moot. Any possible increase in burden due to the longer posting periods for
the Summary (posting for 3 months rather than 1 month) should be offset by
greater simplicity in keeping the Log using the new forms. The
final rule's changes in posting requirements will have no impact on
establishments that were covered under the former rule and will be covered
under the final rule. Establishments that are newly exempted by the final
rule will have an annual savings of 8 minutes each, however. Establishments
that are newly covered will incur an annual cost of 8 minutes each. The total
estimated impact of these changes in scope is a net cost of -$420,146 +
$629,180 = $209,034.(14) (2)
The Annual Summary The
final rule adds a requirement for employers to record on the Log Summary the
average number of employees working in the establishment over the past year
and the total hours worked by all employees during that year. OSHA initially
estimated that recording these data on the Summary would add 5 minutes of
labor per establishment to the cost of maintaining each Log. Many commenters
noted that this step might be difficult, and some stated that it might be
more time consuming than estimated. (See, e.g., Ex. 15: 170.) One
commenter stated that this information was sufficiently valuable for
management purposes that firms would benefit from having the data if they did
not already compile these data (Ex. 15: 395). The commenters who argued that
this requirement would be burdensome were generally large multi-establishment
firms (see, e.g., Exs. 15: 218, 15: 423). Since OSHA's estimate of
this cost is per establishment, these firms would indeed bear higher costs. OSHA
does not believe that this requirement will necessitate modifications to data
systems for the vast majority of firms; finding where the data are on
existing systems should suffice. OSHA also believes that the final rule has
clarified that the average number of employees and hours worked need not be
precise and can simply be an estimate, which should reduce the amount of
effort required to generate this number. The Agency thus finds that this
procedure will be relatively simple for most single-establishment firms that
maintain personnel records that already have this information for a variety
of other purposes. However, OSHA also recognizes that firms with more than
one establishment may keep this information only on a firm, not
establishment, basis, and may need to perform calculations to compile or
revise the data available from their management systems. To account for this,
OSHA has raised its average estimate of the time required for the additional
information to 20 minutes. This
burden is estimated to fall on all establishments covered by the rule, but
not on newly exempted establishments. The total estimated cost of this
additional data requirement is $10,411,297 + $1,572,936 = $11,984,233.(15) The
former rule required the recordkeeper to certify that the entries on the
Summary were true, accurate, and complete. The final rule requires a company
executive to certify that he or she has examined this document and "reasonably
believes, based on his or her knowledge of the process by which the
information was recorded, that the annual summary is correct and
complete." OSHA
estimated, at the time of the proposal, that the former requirement that the
recordkeeper certify the Summary cost an average of 2 minutes, because all
the recordkeeper had to do was sign the form. The final rule drops the
requirement for recordkeeper certification. Having
the Summary certified by a company executive was estimated at the time of the
proposal to require only 5 minutes.(16) OSHA now estimates that
certification by a company executive will require 30 minutes, because the
Agency believes that the company executive will briefly review the records,
perhaps speak with the recordkeeper, and generally take whatever steps are
necessary to assure himself/herself that the records are accurate. Although,
as noted above, the typical firm covered by the rule only records 4 cases per
year and these cases are generally straightforward, OSHA believes that the
certifying executive will need this amount of time, on average, to perform
this task thoughtfully. Again, this estimate is an average estimate -- it
will take longer for some very large firms and less time for small firms. Estimated
impacts on the different classes of establishments are as follows: Continuously
Covered Establishments. Establishments that were covered by the former rule
and will be covered by the final regulation will save the costs for
certification by the recordkeeper, but will incur new costs for certification
by a responsible company official. This change in requirements results in an
estimated total annual cost of $20,604,232.(17) Newly
Exempted Establishments. Establishments that were covered by the former
regulation but are exempted from the final regulation will realize a cost
saving of 2 minutes of recordkeeper time. The estimated total annual savings
will be $105,043.(18) Newly
Covered Establishments. Establishments that were exempt under the former
regulation but are covered by the final regulation will incur costs of 30
minutes of company official time. The total annual cost is estimated to be
$3,270,213.(19) The
total impact of the final rule's certification requirement is estimated to be
$23,769,204. (3)
Provision of Data to OSHA Inspectors Like
the former rule, the final rule requires employers to provide the Log and
Incident Reports to an OSHA inspector during a compliance visit. Employers
are now required by the final rule to provide a copy of these forms to the
inspector on request. OSHA believes that providing copies has in fact been
the practice in the past, even though the former rule did not spell this out
specifically. OSHA thus does not believe that this small change in the
regulation will result in burdens or costs for employers. (4)
Informing Employees How To Report Occupational Injuries and Illnesses The
final regulation requires employers to set up a way for employees to report
work-related injuries and illnesses and inform employees about the approach
they have chosen. OSHA assumes that it will take a Personnel Training and
Labor Relations Specialist (or equivalent) at each establishment an average
of twenty minutes to decide on a system and inform employees of it. The
"way" will usually simply involve directing supervisors to inform
their subordinates, as part of their usual communication with them, to report
work-related injuries and illnesses to their supervisor. Most, if not all,
establishments require employees routinely to report problems of any kind to
their supervisors, and reporting injuries and illnesses is simply one of the
kinds of things employees report. OSHA believes there will be no additional
cost associated with the supervisors' forwarding of these reports to the
person in charge of recordkeeping, because this is already part of
supervisors' duties. This is a one-time cost, which OSHA has annualized over
ten years using a 7 percent discount rate. The net annualized costs of
setting up the system are $1,706,285.(20) (5)
Total Cost Impact Table
X-6 summarizes the total annualized cost impacts of fixed,
establishment-level costs resulting from the final regulation. The total net
annualized costs are estimated to be $37,668,954. BILLING CODE 4510-26-P D. Costs of Maintaining Records The
costs of maintaining the Log and Incident Reports are related to the number
of cases recorded. There are numerous changes to the final rule that result
in very small increases or decreases in the number of cases that will need to
be recorded. With two exceptions, OSHA concludes that the average
establishment keeping records under both the former rule and the final rule
will experience an overall decrease in the number of occupational injury and
illness cases entered into its OSHA records. These decreases will result from
the addition of several exemptions to the presumption of work-relatedness for
cases occurring in the work environment and from definitional changes (e.g.,
medical treatment, first aid, restricted work, aggravation) that will make
fewer cases recordable. However, for this analysis, OSHA makes the
conservative assumption that these will net out to a zero change. This
assumption means that the costs presented in this economic analysis are
somewhat overstated. The
two exceptions to the overall decrease in the number of cases recorded are
the result of the change to a more sensitive standard threshold shift for
recording hearing loss, which will increase the number of cases in all
industries except construction, and the new requirement to record needlesticks
and sharps injuries, which will result in a relatively large increase in the
number of cases recorded in SIC 80. The
costs for SIC 80 are analyzed separately. The analysis uses the following
classes of industries: For
industries covered by the former regulation and now covered by the new
regulation, except for SIC 80, OSHA assumes that the number of needlestick
cases recorded will essentially be unchanged by the final regulation. For
industries (except in SIC 80) covered by the former regulation, but exempted
under the final regulation, recorded cases will fall to zero, resulting in
commensurate savings. For
industries exempted under the former regulation but covered by the final
regulation, the impact will be the full cost of recording such cases. In
SIC 80, recorded cases in three-digit industries that are newly exempted (see
Table X-3) will fall to zero, resulting in commensurate savings. The
industries that will continue to be covered (SIC 805, Nursing and Personal
Care Facilities, SIC 806, Hospitals, and SIC 808, Home Health Care Services)
will bear the full cost of recording the expected increase in needlesticks
and sharps cases. This increase in cases will be analyzed in the same manner
as cases in newly covered industries. (1)
Impacts on Costs of the Final Rule's Changes in Scope The
changes in the scope of the final rule's industry coverage will bring
commensurate changes in the costs of the regulation. OSHA estimates that,
under the former regulation, it required an average of 15 minutes per
recorded case to maintain the Log, plus 20 minutes to fill out a 101 form,
for those employers who did not use an equivalent form. The
addition of new elements to Form 301, as will be described shortly, raises
OSHA's estimate of the total time required to fill out an individual report
of injury or illness to 22 minutes. Based on data collected during
approximately 400 recordkeeping audit inspections, OSHA assumes that 82
percent of incidents will be recorded on forms other than the new Form 301,
such as workers' compensation forms. The
average for the Log takes into account a wide range of cases. For clearly
work-related injuries involving an absence of 10 work days and involving no
additional restricted time, for example, essentially all of the necessary
information can be obtained from workers' compensation-related files. In such
a case, entering the data on the Log will simply require pulling the workers'
compensation file and entering the key information on the Log -- a three minute
task. OSHA assumes that the time required to make an entry will increase when
either (1) information is not already kept for other purposes, or (2) making
the entry requires the recordkeeper to study the regulation. Examples of
situations where the necessary information would not already have been
recorded elsewhere are cases that are not recorded as workers' compensation
cases, or cases involving restricted work days (which are not recorded in
workers' compensation data and may not be part of the affected worker's
payroll or personnel files). Examples of situations where it would be
necessary to study the regulation are those involving questions about the
recordability of the incident or its work-relatedness. Changes in scope will
have different impacts on the different classes of industries, as follows: §
Continuously Covered
Establishments. By definition, establishments in industries formerly covered
and still covered by the final regulation will have no changes in costs
related to industry scope. §
Newly Exempted Establishments.
Establishments that were covered by the former regulation but are exempt from
the final regulation will realize for each currently recorded case a cost
saving of 15 minutes for the Log entry plus, for 18% of the cases, a saving
of 20 minutes for the 301 form. The estimated total annual savings will be
$405,499.(21) §
Newly Covered Establishments. Establishments
that were exempt under the former regulation but are covered by the final
regulation will incur for each currently recorded case costs of 15 minutes
for the Log entry plus, for 18% of the cases, 22 minutes for the 301 form. The
total annual cost is estimated to be $1,646,000.(22) §
Additional Hearing Loss Cases.
Establishments will incur for each additional hearing loss case costs of 15
minutes for the Log entry plus, for 18% of the cases, 22 minutes for the 301
form, or an estimated total annual cost of $2,287,208.(23) §
SIC 80. Establishments in SIC
80 will incur for each additional needlesticks and sharps case costs of 5
minutes for the Log entry (24) plus, for 18% of the cases, 22 minutes for the 301
form, or an estimated total annual cost of $1,971,664.(25) (The
costs of the "log of percutaneous injuries from contaminated
sharps" specified in the revision of the Bloodborne Pathogens standard
in conformance with the requirements of the Needlestick Safety and Prevention
Act have been captured in the analysis of that rule. No offset has been taken
in the economic analysis of this rule for costs common to these two rules for
recording needlestick injuries.) The
estimated total cost impact related to changes in scope of the recordkeeping
rule is $5,499,373. (2)
Maintenance of the Log Form
300 will replace Form 200 as the Log of injuries and illnesses. The revisions
to this form represent the greatest source of cost savings to employers
required to record work-related injuries and illnesses. The major
modifications that result in time and cost savings are simplifications of
Form 300 and changes and simplifications in the criteria for recordable
cases. Simplification of the Log. Compared to the form that it will replace,
Form 300 has a more logical progression, makes available considerably more
space, and eliminates unnecessary columns. OSHA estimates that this will take
an average of one minute off the time required to record cases (except for those
that involve needlesticks or sharps, which will be analyzed separately in
this analysis). This simplification of the Log will produce a saving of
$2,177,240.(26) Simplification of Decisionmaking about Recordability. In estimating the savings in time
associated with the simplification of recordability decisionmaking, OSHA
focused primarily on the simplification of the steps needed to determine
whether an injury or illness is serious enough to be recorded. When a
work-related injury or illness results in days away from work or restricted
workdays, then it is obvious under both the former and final regulations that
the injury or illness must be recorded. Under the former regulation, however,
the employer was required to consult several paragraphs of the Recordkeeping
Guidelines to determine whether an injury that did not result in lost or
restricted workdays would need to be counted. The final regulation will allow
the employer to settle the issue quickly by looking at the list of first aid
treatments in Section 1904.7(b)(4). Of
the cases in the 1998 BLS Survey of Occupational Injury and Illness that did
not involve needlesticks or sharps, 52.34 percent did not involve lost or
restricted workdays. In addition to the one minute saved for each case
because of the forms simplification discussed on the previous page, OSHA
estimates that the simplification of recordability decisionmaking under the
final rule will save approximately 2 minutes for each such injury or illness
case. Applying this unit cost saving to all industries covered by the final
rule produces estimated total savings of $2,279,080.(27) Under
the final rule there will no longer be any need to examine in any detail the
recordability of any cases involving needlesticks or sharps, since all such
cases will have to be recorded. OSHA estimates that the average time required
to record such cases will change from 15 minutes under the former rule to 5
minutes under the final rule. This would save covered establishments in SIC
80 an estimated $388,329.(28) OSHA
has also clarified the requirement to record medical removal cases by stating
in the regulatory text that any case involving medical removal required by an
OSHA health standard must be recorded as a case involving days away from work
or restricted work/job transfer (as appropriate). OSHA had interpreted the
former rule to have the same effect, but the former regulatory text did not
clearly state the requirement. This clarification makes overall compliance
with OSHA's rules simpler, because both the recordkeeping rule and the OSHA
standards will rely on the same criteria, such as biological monitoring test
results, employers' determinations, and physician's opinions, and the
recording requirements are clearly stated in the regulatory text. Under
the final rule, days away from work and days of restricted work will be
counted by calendar days rather than according to scheduled work days. One
commenter (Ex. 57X, pp. 97-101, 117-118) argued that, in the automobile
manufacturing industry alone, this could free up $5,000,000 to $6,000,000
worth of human resources per year for more productive uses of time. However,
OSHA has not taken cost savings for this change because no data in the record
suggest that the projections for this industry will be typical of other
industries. Privacy Concern Cases. The final rule requires maintenance of a separate, confidential list
of case numbers and employee names for "privacy concern cases," so
that an employee's name does not appear on the Form 300. Privacy concern
cases include injury or illness to an intimate body part or the reproductive
system; injury or illness resulting from a sexual assault; mental illness;
HIV infection, hepatitis, or tuberculosis; needlesticks and sharps injuries;
and other illnesses (except MSD illnesses) that the employee requests be
treated as a privacy concern case. In
1997 BLS estimated that there were 621 days away from work cases involving
the reproductive tract, 18 rapes, 5,542 mental disorders, and no hepatitis
cases. (Data are available at www.bls.gov.) In 1997, OSHA estimated that
there were approximately 34,630 occupational TB infections annually. It
appears that TB cases have declined somewhat since then, but OSHA uses this
number in this analysis as a conservative estimate. The
time to record HIV infection cases is included in the estimate of the time
associated with recording 590,165 needlestick and sharps cases, but each of
these cases will also require time for making an entry in the confidential
list of case numbers and employee names. OSHA also assumes that employees in
10,000 other illness cases will ask that their names not appear on the Form
300. OSHA
estimates that it will take an average of 3 minutes to record each
"privacy concern case" on the required separate, confidential list
of case numbers and employee names. The estimated annual cost of this
provision is thus $843,524.(29) (3)
Maintenance of Individual Reports of Injury and Illness The
final regulation substitutes the new Form 301 for the former Form 101 and
provides other options. New Elements on Individual Reports. The new form requires employers to record
such additional items as the injured or ill employee's date of hire,
emergency room visits, the starting time of the employee's shift, and time of
the accident. OSHA estimates that these additional elements will raise time
required to fill out an individual report of injury or illness from 20
minutes for the old Form 101 to 22 minutes for the new Form 301. This change
will cost employers in industries formerly covered and still covered by the
final regulation an estimated $889,169.(30) Changes
that will reduce burden include: An
option to keep Form 301s off-site; and An
option to keep Form 301s on electronic media. Keeping Form 301s Off-site. Keeping Form 301s off-site will provide the
greatest cost savings to small, isolated establishments that are owned by
larger firms that already keep personnel data at headquarters or at another
site. For such firms, OSHA estimates that the ability to maintain records
off-site could save as much as 5 minutes per record. These savings in time
and effort would result from reductions in the amount of time necessary to
copy the Form 301 at headquarters, send it to the small establishment,
receive it there, and file it. There would also be a saving in postage. Under
the final rule, such small establishments would have to go through all of
these steps only when an inspection occurred. Even if only 2 percent of the
estimated recordable cases in establishments that are covered under the final
regulation were affected by this provision (which OSHA believes is likely to
be an underestimate), the resulting cost savings would be $294,141.(31) Storing Form 301s on Electronic Media. The final rule permits employers to store
Form 301s on electronic media, provided that they are able to produce the
records in hard copy within four hours of a request by a government
representative permitted access under the regulation. OSHA estimated that
electronic storage would be advantageous for establishments that handle more
than 100 cases per year. OSHA used as a proxy variable for this number the
number of establishments with 1,000 or more employees. In the 1998 BLS
survey, establishments in this size category had a total of 899,700
recordable cases. OSHA estimates that for each case the ability to store case
information electronically would save 2 minutes of time, plus $.05, for
making a paper copy. The estimated cost savings from this change would amount
to approximately $825,027 per year.(32) OSHA believes that this may be an
underestimate, because having even as few as 30 to 40 cases a year might be
enough incentive to prompt a firm to keep its records electronically. To the
extent that these much smaller firms turn to electronic storage, the cost
savings associated with this provision could be many times greater than the
estimate. (4)
Employee and Employee Representative Access The
final regulation requires employers to provide employees and their
representatives access to Form 301s and to pay the cost of one copy. (It also
requires them to allow access to the Log, but this is not a change from the
former rule.) OSHA assumes that employers would require five minutes to pull,
copy (at $0.05), and replace the relevant form. OSHA assumes that (a) at
one-tenth of covered establishments, one employee would request access to his
or her own Form 301, and (b) at one percent of covered establishments, a
union representative would request access to all Form 301s at the
establishment. OSHA further assumes that there would be an average of ten
Form 301s at such establishments.(33) The estimated total cost of this
provision is $612,860.(34) (5)
Access to Other Parties The
final regulation requires that if employers voluntarily disclose Forms 300 or
301 to persons other than government representatives, employees, former
employees, of authorized representatives, they must remove or hide the
employees' names, with certain exceptions. Since employers may accomplish
this by simply covering part of the form before they copy it, OSHA considers
this requirement to impose no costs. (6)
Total Cost Impact Table
X-7 summarizes the cost impacts of maintaining records attributable to the
final regulation. The net impact is an estimated annual cost of $1,881,080. E. Summary of Costs Table
X-8 summarizes the total annualized cost impacts of the entire final rule. This
summary indicates that: The
largest sources of costs are: New certification requirements ($23.8 million),
additional data requirements ($12.0 million), expansion in the scope of the
rule ($5.5 million), and transitional costs of the new rule ($1.5 million). The
largest sources of savings are: Simplified maintenance of the Log ($4.8
million), less time required to relearn the recordkeeping system ($3.1
million), simplified maintenance of individual reports ($1.1 million). The
net impact of these changes is an estimated annual cost of about $38.6
million. BILLING CODE 4510-26-P BILLING CODE 4510-26-C 4. Benefits OSHA's
final Recording and Reporting Occupational Injuries and Illnesses rule is
designed to provide an information base to assist employers and employees to
maintain safe and healthy working conditions that protect workers. The
importance of the contribution of accurate recordkeeping to lower injury and
illness rates is indicated by experience with OSHA's Voluntary Protection
Program (VPP), a program that recognizes employers with exemplary safety and
health programs. VPP worksites, which have comprehensive safety and health
management programs that include effective injury, illness, and accident
recordkeeping, generally have lost-workday case rates ranging from one-fifth
to one-third the rates experienced by most worksites in the same industry.(35)
These sites also routinely rely on the Logs and other worksite data sources
to evaluate their programs and correct deficiencies. This chapter describes
the potential benefits associated with the changes OSHA is making to the
recordkeeping requirements in 29 CFR 1904. A. Overview of Benefits The
benefits of improved recordkeeping fall into two groups. Improved
recordkeeping enhances the ability of employers and employees to prevent
occupational injuries and illnesses. Improved recordkeeping and reporting
also increases the utility of injury and illness records for OSHA's purposes. (1)
Enhanced Ability of Employers and Employees to Prevent Injuries and Illnesses The
additional or improved information about events and exposures to be collected
on Form 301, including information on the location, the equipment, materials
or chemicals being used, and the specific activity being performed, will
increase the ability of employers and employees to identify hazardous
conditions and to take remedial action to prevent future injuries and
illnesses. Identifying the irritating substance that has caused an employee
to experience a recordable case of occupational dermatitis, for example,
could prompt an employer to re-examine available Material Safety Data Sheets
to identify a non-irritating substitute material. On Form 301, details will
be recorded in a logical sequence that will help structure the information
and focus attention on problem processes and activities. Thus the
establishment's records of injuries and illnesses will provide management
with an analytical tool that can be used to control or eliminate hazards. The
process of using recorded information to control or eliminate hazards was
well illustrated in a comment on the proposed rule.(36) This testimony described a
training exercise where trainees used Log data to plot MSD injuries on a
floor plan; went into the plant to look for risk factors and interview
workers; formulated specific workplace design and work organization changes
to eliminate or reduce risk factors; and refined their findings into an
action plan. If
this enhanced ability to identify (and thus address) hazards translates into
a reduction even as small as 0.5 to 1 percent of the estimated number of recordable
cases, it would mean the prevention of 29,147 to 58,285 injuries and
illnesses per year.(37) (2)
Increased Utility of Data to OSHA The
final rule's changes will also make injury records more useful to OSHA, as
well as to employers and employees. Improvements in the quality and
usefulness of the records being kept by employers would enhance OSHA's
capacity to: Focus
compliance outreach efforts on the most significant hazards; Identify
types or patterns of injuries and illnesses whose investigation might lead to
regulatory changes or other types of prevention efforts, such as enforcement
strategies, information and training, or technology development; and Set
priorities among establishments for inspection purposes. Employers
and employees both stand to benefit from the more effective use of OSHA's
resources. The enhanced ability of compliance officers to identify patterns
of injuries will enable OSHA to focus on more serious problems. Identification
of such patterns will also increase the ability of employers to control these
hazards and prevent other similar injuries. To the extent that employers take
advantage of this information, the burden of OSHA inspections should be
reduced in the long run. Employees clearly will also benefit from these
reductions in injuries. B. Specific Benefits of the Final Regulation (1)
Changes in Scope of the Regulation The
changes in the scope of the final regulation in the retail and service
sectors represent a refinement in coverage. The scope of the former rule is
defined at the two-digit SIC level; the scope of the final rule is defined at
the three-digit SIC level. OSHA is expanding the scope to include high-risk
three-digit industries that were previously exempt and to reduce the scope to
exempt low-risk three-digit industries that were previously covered. The
effect of this change is to make the regulation more cost-effective. This
retargeting shifts the burden from industries with relatively few injuries
and illnesses per establishment to industries with substantially larger
numbers of injuries and illnesses per establishment. Thus the final rule will
result in higher hazard identification benefits per dollar of regulatory
burden. It is also likely to lead to a small reduction in injuries and
illnesses at newly covered establishments that had not been keeping records
at all. The
final rule's changes in scope will similarly increase the cost-effectiveness
of OSHA's compliance activities. With the same expenditure of resources, OSHA
will be better able to detect injury and illness trends and to assist
employers to address the causes of these trends. OSHA expects this more
efficient use of Agency resources to translate directly into reduced worker
injuries and illnesses, reductions in costs to employers, and increased
productivity. (2)
Forms Simplification and Definitions The
general reduction in burden associated with changes in the forms and in the
data reported was discussed in the previous chapter under cost savings. The
simplification of the forms also will have benefits in the form of improved
information. The same is true of definitional changes, such as counting lost
workdays or restricted work days as calendar days and capping the count at
180 days. Easier recording of data will make records of individual cases more
complete and consistent. It is also possible that simplified recording will
encourage more complete recording of job-related injuries and illnesses. This
process is illustrated by the change from days away from work to calendar
days. This change represents an explicit decision to shift the emphasis from
lost productivity to the seriousness of the injury or illness. Calendar days
are a more accurate and consistent reflection of seriousness than are lost
scheduled workdays. They are also directly comparable across establishments
and industries, while days away from work are not. Thus, calendar days
produce more useful information for the purpose of assessing patterns of
injuries and illnesses. This variable is also generally much simpler to
determine and record, so that the information is more likely to be complete
and accurate. This combination of attributes, OSHA believes, will
substantially improve the quality of the information available for analysis
and enhance the resulting actions taken to reduce job-related injuries and
illness. (3)
Recordable Injuries/Illnesses The
changes in the definition of the injuries and illnesses that are recordable
have several different types of benefits. In general, they follow a pattern
of simplification and/or more cost-effective targeting of recording
requirements, which should produce the types of benefits discussed above. Changes
that add to the information recorded have other benefits as well. Specified Recording Thresholds. One change involves identifying the
threshold at which a medical removal condition or restriction is to be
recorded, and tying this to the level in a specific OSHA standard (lead,
cadmium, ergonomics, etc.). This requirement involves no increase in cost,
since the pre-removal or restriction conditions are already required under
the specific OSHA standard. Needlesticks and Sharps Injuries and Hearing Loss Cases. By far the most extensive change
in recording is the requirement to report all needlesticks and sharps
injuries involving exposure to blood or other potentially infectious
materials in the covered industries. The benefits of this change are also
quite extensive, however, and the costs are less than they might at first
seem. In effect, OSHA is changing the emphasis on these injuries from the
effects (the injury's medical treatment) to the actual injury caused by the
incident (i.e., the needlestick or sharps injury). Recording
all needlesticks and sharps injuries will provide far more useful information
for illness prevention purposes. Unlike many other conditions (e.g.,
blood poisoning and hearing loss) that are progressive, AIDS and hepatitis
are either present or they are not. In any given work setting, the risk is
probabilistic and bimodally distributed; either one is infected by an injury
or one is not. Under these circumstances, it is important to prevent all
injuries that might lead to illness. For that prevention strategy to be
successful, however, it is necessary to get a complete picture of the overall
pattern of all needlesticks and sharps injuries. This requires recording all
such injuries, whether or not they result in AIDS, hepatitis, or other
bloodborne illness. The final regulation accomplishes this. Because
of their high mortality and disability potentials, AIDS and hepatitis are
particularly frightening illnesses. One implication of this fact, however, is
that the benefits per case of prevention are large. Another implication is
that there are substantial employee morale benefits to a prevention program
that is comprehensive and well informed. Recording all risky wounds and then
using the data for prevention are actions that are reasonable. These
provisions of the final rule are likely also to result in indirect benefits
in the form of improved patient care. Hearing
loss cases also result in substantial disability and lead to safety accidents
as well. OSHA believes that aligning the recording threshold for such cases
with the Standard Threshold Shift criterion in the Agency's occupational
Noise Standard will simplify recording for many employers who are already
familiar with this criterion. The shift in this recording criterion will also
increase the number of hearing loss cases captured by the recordkeeping
system and provide more opportunities for employers to intervene to prevent
other hearing loss cases. (4)
Procedural Changes and Informational Requirements The
relationship between costs and benefits varies for the final rule's
procedural changes and for its requirements for additional information. Some
provisions have positive but trivial costs. Others have more significant
costs but substantial benefits. De
Minimis Costs. A number of changes have costs
that are so low that the benefits of the change are clearly greater. Examples
include the provisions discussed below. Recording
incidents within seven calendar days, rather than six working days, will
impose costs for more rapid recording on establishments that work only five
days a week. The reduced burden resulting from a simpler deadline -- one week
later -- almost certainly outweighs this minuscule cost, however. Moreover,
for establishments that operate six or seven days a week, this change does
not impose any costs at all. The
requirement, upon change of ownership, for the seller to hand over records to
the buyer of the business has extremely small costs. The seller, after all,
is already required to maintain those records, and the buyer is required to
take them over. The benefits of continuity of information are clearly much
greater than this trivial cost. The
cost, if any, for posting (but not revising) the Annual Summary for three
months, rather than one month, is extremely small -- particularly considering
that quite a number of other certificates and information (e.g.,
elevator certificates, minimum wage information, etc.) must be posted at all
times. The ability of employees to refer back to the Annual Summary
information, as well as the availability of the information to new employees
when they are hired, clearly produces benefits that exceed the costs. Certification by a Company Executive. The requirement that a company executive
certify the Summary will have the effect of increasing the oversight and
accountability of higher management in health and safety activities. The
certifying official will be responsible for ensuring that systems and
processes are in place and for holding the recordkeeper accountable. OSHA
believes that this increased awareness of job-related injuries and illnesses,
and of their prevention, will translate into fewer accidents and injuries
because the certifying executive will have a heightened sense of
responsibility for safety and health, although quantifying this benefit is
not possible at this time. Additional Data Requirements for Form 301 and Form 300-A. The final rule will require
employers to provide several additional pieces of information, at an
estimated cost of two minutes per Form 301 and twenty minutes per Form 300-A. Additional
information related to incidents (on Form 301) includes: Employee's date of
hire, emergency room visits, time the employee began work (starting time of
the shift), and time of the accident. Additional
establishment information (on the Form 300-A Summary) includes: Annual
average number of employees employed in that year, and Total hours worked by
all employees during the year. Information
on the injured employee's date of hire can provide insight into a number of
factors that have been shown to relate to injury rates. Such factors may
include inadequate training, inexperience on the job, etc. If OSHA were to
link its injury data with information on the distribution of job tenure, for
example, it could then calculate injury rates by job tenure category for
different jobs. That information would help to identify areas where better
training would have the greatest potential to reduce injuries. Data
on starting times of shifts and the time of occurrence of the accident will
facilitate research on whether accident rates vary by shift, and whether
certain portions of a shift are particularly dangerous. This information will
be helpful to OSHA as well as to the employer's own assessment of workplace
safety and health. Most importantly, employees will receive the information they
need to understand both the absolute and relative incidence of injuries and
illnesses in their establishment. Such information is essential both for
market-based mechanisms to influence safety and health and for meaningful
employee participation in safety and health. The
inclusion of information concerning the average number of employees and total
hours worked by all employees during the year will enable OSHA inspectors to
calculate incidence rates directly from the posted summary. Employers will
also benefit from their ability to obtain incidence information quickly and
easily. At
the establishment level, occupational injury and illness records are examined
at the beginning of an OSHA inspection and are used by compliance officers to
identify safety and health problems that deserve to be focused on. The data
on Form 300 and Form 301 will also be used to determine what areas of the
site, if any, warrant particular attention during the inspection. Again,
access to this improved information will be of direct benefit to employers
and employees, who will be able to act on it to control hazards. Employee Access to Form 301. Providing employees with access to the Form
301, as well as the Form 300, will allow them to monitor the accuracy of the
data and to identify possible patterns of injuries and illnesses. Access to
Form 301 is important because this form contains enough detailed information
about the events surrounding the occurrence to enable workers analyzing it to
identify the appropriate protective measures to prevent future accidents. (5)
Summary Taken
together, the changes that OSHA is making to its recording and reporting
requirements are designed to achieve the Agency's primary goal of reducing
job-related injuries, illnesses, and fatalities. The link between more
accurate and better-targeted injury and illness recordkeeping and accident
prevention has repeatedly been established and emphasized by the National
Academy of Sciences, the Keystone Report, the testimony of safety and health
professionals, and the Agency's own experience. The final rule's changes will
thus benefit workers, their employers, and the Agency's accident prevention
efforts. 5. Economic Feasibility and Small Business Impacts Introduction This
section assesses the impact on affected firms of the costs of implementing
the final recordkeeping rule. It is divided into four parts. The first part
analyzes the economic feasibility of the rule for firms in all affected
industries. The second part analyzes the economic impacts of the rule on small
entities in the affected industries. The third part presents an Unfunded
Mandates Analysis, which OSHA has conducted in accordance with the Unfunded
Mandates Reform Act. The fourth part examines the potential environmental
impacts of the regulation. Analysis
of Economic Feasibility The
final 1904 rule is a regulation promulgated under sections 8 and 24 of the
OSH Act, and is not a standard, which would be promulgated under Section 6 of
the Act. Nevertheless, OSHA has performed an analysis of the economic
feasibility of the rule. The
courts have held that, to demonstrate that a standard is economically
feasible, OSHA "must construct a reasonable estimate of compliance costs
and demonstrate a reasonable likelihood that these costs will not threaten
the existence or competitive structure of an industry, even if it does
portend disaster for some marginal firms" [United Steelworkers of
America v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980) (the
"Lead decision")]. In assessing the economic feasibility of the
final recordkeeping rule, OSHA has followed the decisions of the courts in
the Lead case and other OSHA cases, and has relied on information and data in
the record to determine that the final standard is economically feasible for
firms in all affected industries. OSHA's
estimates of the number of covered establishments in each affected industry
are presented in Section 2 of this economic analysis, and the results of the
Agency's analysis of annualized compliance costs are presented in Section 3. The
Agency's analysis is based on comments to the record, supplemented, where
needed, by public information sources such as the Census Bureau's County
Business Patterns. In
this section, for each affected industry, estimates of per-firm annualized
compliance costs are compared with (a) per-firm estimates of sales from a
compilation of 1996 data performed by the U.S. Census Bureau for the Small
Business Administration to reflect parent company control of establishments,
and (b) per-firm estimates of profits derived from information in Dun &
Bradstreet's "Industry Norms and Key Business Ratios" database for
1996 or by applying 1996 profit percentages from Robert Morris Associates to
the Agency's per-firm estimates of sales. Based on the results of these
comparisons, which identify the magnitude of the potential impacts of the
final rule, OSHA then assesses the rule's economic feasibility for
establishments in all affected industries. To
estimate the sales and profits of covered firms, OSHA identified the Standard
Industrial Classifications (SICs) of every industry under the scope of the
rulemaking. For each industry, OSHA then calculated the average sales per
firm in the relevant SIC(s). The average rate of return on sales (from Dun
and Bradstreet or, if necessary, from Robert Morris Associates) was used to
estimate average profit per firm. (Throughout this section, the term
"average" is used to mean the arithmetic mean.) The
cost estimates compared with estimated sales and profit data for firms in
each affected industry "screen" for potential impacts. If sizeable
impacts were identified by this screening analysis, additional analysis would
be necessary. Table
X-9 shows compliance costs as a percentage of before-tax profits and of
sales. This table presents the results of the screening analysis, which
simply measures costs as a percentage of before-tax profits and sales; the
screening analysis is used to determine whether the compliance costs
potentially associated with the rule could lead to significant impacts on the
affected firms under worst-case scenarios. Whether or not the costs of
compliance actually lead to a significant impact on the profit and/or sales
of firms in a given industry will depend on the price elasticity of demand
for the products or services of firms in that industry. Price
elasticity refers to the relationship between the price charged for a product
and the demand for that product: the more elastic the relationship, the less
able firms are to pass the costs of compliance through to their customers in
the form of a price increase and the more they must absorb the costs of
compliance from their profits. When demand is inelastic, firms can absorb all
the costs of compliance simply by raising the prices they charge for that
product; under this scenario, profits are untouched. On the other hand, when
demand is elastic, firms cannot cover the costs simply by passing the cost
increase through in the form of a price increase; instead, they must absorb
some of the increase from their profits. In general, "when an industry
is subjected to a higher cost, it does not simply swallow it; it raises its
price and reduces its output, and in this way shifts a part of the cost to
its consumers and a part to its suppliers," in the words of the court in
American Dental Association v. Secretary of Labor, [984 F.2d
823, 829 (Seventh Cir. 1993)] (the "ADA decision"). BILLING CODE 4510-26-P To
see Table X-9 - Click Here Specifically,
if demand is completely inelastic (i.e., the price elasticity is 0), then the
impact of compliance costs that amount to 1 percent of revenues would be a 1
percent increase in the price of the product, with no decline in demand or in
profits. Such a situation would be most likely when there are few, if any,
substitutes for the product or services offered by the affected firms and the
products or services of the affected firms account only for a small portion
of the income of their consumers. If demand is perfectly elastic (i.e., the price
elasticity is infinitely large), then no increase in price is possible, and
before-tax profits would be reduced by an amount equal to the costs of
compliance (minus any savings resulting from improved worker health and
reduced insurance costs). Under this scenario, if the costs of compliance
represent a large percentage of the firm's profits, some firms might be
forced to close. This scenario is highly unlikely to occur, however, because
it can only arise when there are other goods or services that are, in the
eyes of consumers, perfect substitutes for the goods produced by the affected
firms. A
common intermediate case would be a price elasticity of one. In this
situation, if the costs of compliance amount to 1 percent of revenues, and
prices are raised by 1 percent, then production would decline by 1 percent. In
this situation, firms would remain in business and maintain the same profit
as before, but would produce 1 percent less product. Consumers would
effectively absorb the costs through a combination of increased prices and
reduced consumption; this, as the court described in the ADA decision, is the
more typical case. As
Table X-9 shows, the impacts potentially imposed by the final rule are not
sizeable. On average, annual costs per firm are less than $58. (In one
industry, Transportation Equipment, characterized by large workplaces, the
potential reduction in costs that vary with the number of cases actually
outweighs the potential increase in essentially fixed costs associated with
the number of establishments, producing an average reduction in costs per
firm.) In no industry do average compliance costs per firm amount to more
than .006 percent of sales or 0.3 percent of profits. Even if no price
increase were possible, a 0.3 percent decline in profits would not threaten
the viability of any firm. For example, a firm with before-tax profits of 10
percent of sales would still have profits of 9.97 percent of sales, even
under this extreme scenario. Thus, the final rule is clearly economically
feasible in all industry groups. Among
the covered SICs, average compliance costs as a percent of sales range from
less than .00005% in several industries, such as SIC 29, Petroleum and Coal
Products, to .0059% in SIC 593, Used Merchandise Stores. Average compliance
costs as a percent of profits ranges from less than .0005% in several
industries, such as SIC 37, Transportation Equipment manufacturing, to .293%
in SIC 523, Paint, Glass, and Wallpaper Stores. Potential
Economic Impacts of the Rule on Small Firms As
required by the Regulatory Flexibility Act (as amended in 1996), this section
measures the potential economic impacts of the final rule on small businesses
in the regulated community to determine whether the rule has a significant
impact on a substantial number of small firms. It builds on the analysis of
economic impacts developed in the Economic Feasibility part of this section. The
Agency has analyzed the impact of the final recordkeeping rule on small
entities, as defined by the Small Business Administration and in accordance
with the Regulatory Flexibility Act. Data
on receipts were provided by the Commerce Department, in a data table
specially commissioned by the Small Business Administration. Since the size
definitions SBA has established do not precisely match the categories
provided in these data, the Agency approximated the nearest data grouping,
where necessary. The SBA-commissioned data were broken into size categories
of firms defined by numbers of employees (1-4, 5-9, 10-19, 20-99, 100-499,
>500). Where these size categories did not match SBA's assigned
"small" firm definitions, the Agency approximated them to the
closest category. For those industries where an "annual receipts"
SBA definition was used, the Agency projected the analogous employment break
by examining the ratio of employment to receipts per firm. For example, in
Heavy Construction, SIC 16, the ratio of employment to receipts suggested
that a $17 million firm would have approximately 104 employees. The Agency
therefore examined firms with fewer than 100 employees. This process is shown
in Table X-10. The
results of this analysis are shown in Table X-11. Over the entire range of
SICs affected by the final rule, estimated cost per small firm averages only
$31.63. In
order to ensure that even the smallest entities would not be significantly
impacted, the Agency performed an analysis of impacts on very small firms,
i.e., those with fewer than 20 employees. This analysis used the same sources
for sales and profit data as Table X-11. The results of this analysis are
shown in Table X-12. Regardless
of whether the SBA definitions or the fewer-than-20-employee definition was
used, the results were the same -- no significant impact. For the purposes of
small-business impact assessment, OSHA defines as potentially significant
annualized costs of compliance that amount to 1 percent of sales or 5 percent
of profits. The impacts of the rule on sales and profits did not exceed 1
percent for firms in any covered industry, whether the analysis used the
SBA's definitions or the fewer-than-20-employee size class definition. No
small firm in any industry would need to increase its prices by more than
0.0105 percent, even under a full cost pass-through scenario. Alternatively,
if a small firm had to pay for the costs of compliance entirely from profits,
costs would account for no more than 0.406 percent of profits (38)
in any industry. Impacts of this magnitude would not affect the viability of
even the smallest firm. BILLING CODE 4510-26-P To
see Table X-10 - Click Here To
see Table X-11 - Click Here To
see Table X-12 - Click Here Regulatory
Flexibility Analysis Although
a Final Regulatory Flexibility Analysis is not required in this case, OSHA
has chosen to include the elements of a final regulatory flexibility analysis
in this document. The elements of a Final Regulatory Flexibility Analysis
are: §
A succinct statement of the
need for, and the objective of, the rule; §
A summary of significant
issues raised by the public comments in response to the initial regulatory
flexibility analysis, a summary of the assessment of the Agency of such
issues, and a statement of any changes made to the proposed rule as a result
of such comments; §
A description of and estimate
of the number of small entities to which the rule will apply or an
explanation of why no such explanation is available; §
A description of the projected
reporting, recordkeeping and other compliance requirements of the rule,
including an estimate of the classes of small entities that will be subject
to the rule's requirements and the types of professional skills necessary for
preparation of the record or report; §
A description of the steps the
Agency has taken to minimize the significant economic impact on small
entities consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons for selecting
the alternative adopted in the final rule and why each of the other
significant alternatives considered by the agency was rejected. The
Regulatory Flexibility Act states that the Regulatory Flexibility Analysis
(RFA) need not contain all of the above elements in toto if these
elements are presented elsewhere in the documentation and analysis of the
regulation. This analysis will follow this approach and refer the reader to
other documentation for some of the above elements. Need for and objectives of the rule. The need for the final rule and its
objectives are discussed in the introductory sections of the preamble. The number of small entities to which the rule will apply. As shown in Table X-11, the final
rule will impact 541,988 firms defined as small firms by the SBA. The compliance requirements of the final rule. The compliance requirements of
the final rule are discussed in the summary and explanation section of the
preamble, which discusses each requirement in detail. Steps taken to minimize the impact of the rule on small entities. The final Part 1904 rule
minimizes the impact on small entities in two ways. First, all employers who
had fewer than 11 workers at all times during the previous year are exempt
from keeping Part 1904 records of occupational injuries and illnesses, unless
specifically asked to do so by the government. Second, the final rule exempts
employers classified in certain industries in the services and retail
sectors. These industry-exempt employers are also not required to keep
records unless asked to do so by the government. The effect of the size and
industry exemptions is that more than 4.5 million of the Nation's 6 million
business establishments are exempted from keeping OSHA Part 1904 records on a
routine basis. OSHA
considered several alternatives to exempting employers based on size and/or
industry classification. A discussion of these alternatives, and why OSHA
chose the alternative in the final rule, can be found in the preamble
discussion for Subpart B, Scope. XI. Regulatory Flexibility Certification Based
on OSHA's analysis of small business impacts (Tables X-11 and X-12), OSHA
certifies that this final rule will not have a significant impact on a
substantial number of small entities. OSHA makes this certification to
fulfill its obligations under the Regulatory Flexibility Act (as amended in
1996). XII.
Environmental Impact Assessment In
accordance with the requirements of the National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 et seq.), Council on Environmental Quality NEPA
regulations (40 CFR part 1500 et seq.), and the Department of Labor's
NEPA regulations (29 CFR part 11), the Assistant Secretary has determined
that this final rule will not have a significant impact on the external
environment. XIII. Federalism This
final rule has been reviewed in accordance with Executive Order 13132 (52 FR
41685), regarding Federalism. Because this rulemaking action involves a
"regulation" issued under section 8 of the OSH Act, and not a
"standard" issued under section 6 of the Act, the rule does not
preempt State law, see 29 U.S.C. § 667 (a). The effect of the final rule on
States is discussed above in Section VI, State Plans. XIV. Paperwork Reduction Act of 1995 The
final regulation contains information collections which are subject to review
by the Office of Management and Budget (OMB) under the Paperwork Reduction
Act of 1995. Most of the provisions of the final rule contain collection of
information requirements, either to keep records or to report information
from the records to the government. In addition, the effort employers are
required to put forth to learn the requirements are considered information
requirements. In
response to OSHA's 1996 proposal, the public submitted 450 written comments .
The Agency also held two public meetings where it collected oral comments
from 43 individuals and groups during six days of informal meetings. In
summary, OSHA estimates that there are 1,365,985 establishments that will be
required to keep records of occupational injuries and illnesses under the
provisions. A total of approximately 4,500,000 hours will be needed for
employers to comply with the information collection requirements for the
first year, and 3,500,000 hours in each subsequent year. This represents an
increase of 1,060,000 hours from the previous paperwork burden estimates. OSHA
has recently recognized that previous estimates of the burden associated with
becoming familiar with the 1904 rule have been understated, and recently
corrected those estimates, as noted in OSHA's Final Economic Analysis for the
Part 1904 rule. In
accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C.
3501-3520), OSHA has requested OMB approval of the collection of information
requirement described above. The information collection provisions will take
effect when OMB approves them under the PRA. XV. Authority This
document was prepared under the direction of Charles N. Jeffress, Assistant
Secretary of Labor for Occupational Safety and Health, U.S. Department of
Labor, 200 Constitution Avenue, N.W., Washington, DC 20210. List of Subjects 29 CFR Part 1904 Health
statistics, Occupational safety and health, Reporting and recordkeeping
requirements, State plans. 29 CFR Part 1952 Health
statistics, Intergovernmental relations, Occupational safety and health,
Reporting and recordkeeping requirements, State plans. Accordingly,
pursuant to sections 8(c), 8(g), 20 and 24 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 1-90
(55 FR 9033), and 5 U.S.C. 553, the Department amends 29 CFR Chapter XVII as
set forth below. Signed
in Washington, D.C., this 5th day of January, 2001. Charles N. Jeffress, 1.
29 CFR Part 1904 is revised to read as follows: Part 1904 -- Recording and Reporting Occupational Injuries and
Illnesses Sec. Subpart A -- Purpose 1904.0
Purpose Subpart B -- Scope 1904.1
Partial exemption for employers with 10 or fewer employees. Non-mandatory
Appendix A to Subpart B -- Partially Exempt Industries. Subpart
C -- Recordkeeping Forms and Recording Criteria 1904.4
Recording criteria. Subpart D -- Other OSHA Injury and Illness Recordkeeping Requirements 1904.30
Multiple business establishments. Subpart E -- Reporting Fatality, Injury and Illness Information to the
Government 1904.39
Reporting fatalities and multiple hospitalization incidents to OSHA. Subpart F -- Transition From the Former Rule 1904.43
Summary and posting of year 2000 data. Subpart G -- Definitions 1904.46
Definitions. Authority:
29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of Labor's Order No. 1-90
(55 FR 9033), and 5 U.S.C. 553. Subpart A -- Purpose § 1904.0 Purpose. The
purpose of this rule (Part 1904) is to require employers to record and report
work-related fatalities, injuries and illnesses. Note to § 1904.0: Recording or reporting a work-related injury, illness, or fatality
does not mean that the employer or employee was at fault, that an OSHA rule
has been violated, or that the employee is eligible for workers' compensation
or other benefits. Subpart B -- Scope Note to Subpart B: All employers covered by the Occupational Safety and Health Act (OSH
Act) are covered by these Part 1904 regulations. However, most employers do
not have to keep OSHA injury and illness records unless OSHA or the Bureau of
Labor Statistics (BLS) informs them in writing that they must keep records. For
example, employers with 10 or fewer employees and business establishments in
certain industry classifications are partially exempt from keeping OSHA
injury and illness records. § 1904.1 Partial exemption for employers with 10 or fewer employees. (a)
Basic requirement. (1) If your company had ten (10) or fewer employees
at all times during the last calendar year, you do not need to keep OSHA
injury and illness records unless OSHA or the BLS informs you in writing that
you must keep records under § 1904.41 or § 1904.42. However, as required by §
1904.39, all employers covered by the OSH Act must report to OSHA any
workplace incident that results in a fatality or the hospitalization of three
or more employees. (2)
If your company had more than ten (10) employees at any time during the last
calendar year, you must keep OSHA injury and illness records unless your
establishment is classified as a partially exempt industry under § 1904.2. (b)
Implementation. (1) Is the partial exemption for size based on the
size of my entire company or on the size of an individual business
establishment? The partial exemption for size is based on the number of
employees in the entire company. (2)
How do I determine the size of my company to find out if I qualify for the
partial exemption for size? To determine if you are exempt because of
size, you need to determine your company's peak employment during the last
calendar year. If you had no more than 10 employees at any time in the last
calendar year, your company qualifies for the partial exemption for size. § 1904.2 Partial exemption for establishments in certain industries. (a)
Basic requirement. (1) If your business establishment is classified in
a specific low hazard retail, service, finance, insurance or real estate
industry listed in Appendix A to this Subpart B, you do not need to keep OSHA
injury and illness records unless the government asks you to keep the records
under § 1904.41 or § 1904.42. However, all employers must report to OSHA any
workplace incident that results in a fatality or the hospitalization of three
or more employees (see § 1904.39). (2)
If one or more of your company's establishments are classified in a
non-exempt industry, you must keep OSHA injury and illness records for all of
such establishments unless your company is partially exempted because of size
under § 1904.1. (b)
Implementation. (1) Does the partial industry classification
exemption apply only to business establishments in the retail, services,
finance, insurance or real estate industries (SICs 52-89)? Yes, business
establishments classified in agriculture; mining; construction;
manufacturing; transportation; communication, electric, gas and sanitary
services; or wholesale trade are not eligible for the partial industry
classification exemption. (2)
Is the partial industry classification exemption based on the industry classification
of my entire company or on the classification of individual business
establishments operated by my company? The partial industry
classification exemption applies to individual business establishments. If a
company has several business establishments engaged in different classes of
business activities, some of the company's establishments may be required to
keep records, while others may be exempt. (3)
How do I determine the Standard Industrial Classification code for my
company or for individual establishments? You determine your Standard
Industrial Classification (SIC) code by using the Standard Industrial
Classification Manual, Executive Office of the President, Office of
Management and Budget. You may contact your nearest OSHA office or State
agency for help in determining your SIC. § 1904.3 Keeping records for more than one agency. If
you create records to comply with another government agency's injury and
illness recordkeeping requirements, OSHA will consider those records as
meeting OSHA's Part 1904 recordkeeping requirements if OSHA accepts the other
agency's records under a memorandum of understanding with that agency, or if
the other agency's records contain the same information as this Part 1904
requires you to record. You may contact your nearest OSHA office or State
agency for help in determining whether your records meet OSHA's requirements. Non-Mandatory Appendix A to Subpart B -- Partially Exempt Industries Employers
are not required to keep OSHA injury and illness records for any establishment
classified in the following Standard Industrial Classification (SIC) codes,
unless they are asked in writing to do so by OSHA, the Bureau of Labor
Statistics ( BLS), or a state agency operating under the authority of OSHA or
the BLS. All employers, including those partially exempted by reason of
company size or industry classification, must report to OSHA any workplace
incident that results in a fatality or the hospitalization of three or more
employees (see § 1904.39).
Subpart C -- Recordkeeping Forms and Recording Criteria Note to Subpart C: This Subpart describes the work-related injuries and illnesses that
an employer must enter into the OSHA records and explains the OSHA forms that
employers must use to record work-related fatalities, injuries, and
illnesses. § 1904.4 Recording criteria. (a)
Basic requirement. Each employer required by this Part to keep records
of fatalities, injuries, and illnesses must record each fatality, injury and
illness that: (1)
Is work-related; and (2)
Is a new case; and (3)
Meets one or more of the general recording criteria of § 1904.7 or the
application to specific cases of § 1904.8 through § 1904.12. (b)
Implementation. (1) What sections of this rule describe recording
criteria for recording work-related injuries and illnesses? The table
below indicates which sections of the rule address each topic. (i)
Determination of work-relatedness. See § 1904.5. (ii)
Determination of a new case. See § 1904.6. (iii)
General recording criteria. See § 1904.7. (iv)
Additional criteria. (Needlestick and sharps injury cases, tuberculosis
cases, hearing loss cases, medical removal cases, and musculoskeletal
disorder cases). See § 1904.8 through § 1904.12. (2)
How do I decide whether a particular injury or illness is recordable? The
decision tree for recording work-related injuries and illnesses below shows
the steps involved in making this determination. BILLING CODE 4510-26-P BILLING CODE 4510-26-C § 1904.5 Determination of work-relatedness. (a)
Basic requirement. You must consider an injury or illness to be
work-related if an event or exposure in the work environment either caused or
contributed to the resulting condition or significantly aggravated a
pre-existing injury or illness. Work-relatedness is presumed for injuries and
illnesses resulting from events or exposures occurring in the work
environment, unless an exception in § 1904.5(b)(2) specifically applies. (b)
Implementation. (1) What is the "work environment"? OSHA
defines the work environment as "the establishment and other locations
where one or more employees are working or are present as a condition of
their employment. The work environment includes not only physical locations,
but also the equipment or materials used by the employee during the course of
his or her work." (2)
Are there situations where an injury or illness occurs in the work
environment and is not considered work-related? Yes, an injury or illness
occurring in the work environment that falls under one of the following
exceptions is not work-related, and therefore is not recordable.
(3)
How do I handle a case if it is not obvious whether the precipitating
event or exposure occurred in the work environment or occurred away from
work? In these situations, you must evaluate the employee's work duties
and environment to decide whether or not one or more events or exposures in
the work environment either caused or contributed to the resulting condition
or significantly aggravated a pre-existing condition. (4)
How do I know if an event or exposure in the work environment
"significantly aggravated" a preexisting injury or illness? A
preexisting injury or illness has been significantly aggravated, for purposes
of OSHA injury and illness recordkeeping, when an event or exposure in the
work environment results in any of the following: (i)
Death, provided that the preexisting injury or illness would likely not have
resulted in death but for the occupational event or exposure. (ii)
Loss of consciousness, provided that the preexisting injury or illness would
likely not have resulted in loss of consciousness but for the occupational
event or exposure. (iii)
One or more days away from work, or days of restricted work, or days of job
transfer that otherwise would not have occurred but for the occupational
event or exposure. (iv)
Medical treatment in a case where no medical treatment was needed for the
injury or illness before the workplace event or exposure, or a change in
medical treatment was necessitated by the workplace event or exposure. (5)
Which injuries and illnesses are considered pre-existing conditions? An
injury or illness is a preexisting condition if it resulted solely from a
non-work-related event or exposure that occured outside the work environment. (6)
How do I decide whether an injury or illness is work-related if the
employee is on travel status at the time the injury or illness occurs? Injuries
and illnesses that occur while an employee is on travel status are
work-related if, at the time of the injury or illness, the employee was
engaged in work activities "in the interest of the employer." Examples
of such activities include travel to and from customer contacts, conducting
job tasks, and entertaining or being entertained to transact, discuss, or
promote business (work-related entertainment includes only entertainment
activities being engaged in at the direction of the employer). Injuries
or illnesses that occur when the employee is on travel status do not have to
be recorded if they meet one of the exceptions listed below.
(7)
How do I decide if a case is work-related when the employee is working at
home? Injuries and illnesses that occur while an employee is working at
home, including work in a home office, will be considered work-related if the
injury or illness occurs while the employee is performing work for pay or
compensation in the home, and the injury or illness is directly related to
the performance of work rather than to the general home environment or
setting. For example, if an employee drops a box of work documents and
injures his or her foot, the case is considered work-related. If an
employee's fingernail is punctured by a needle from a sewing machine used to
perform garment work at home, becomes infected and requires medical
treatment, the injury is considered work-related. If an employee is injured
because he or she trips on the family dog while rushing to answer a work
phone call, the case is not considered work-related. If an employee working
at home is electrocuted because of faulty home wiring, the injury is not
considered work-related. § 1904.6 Determination of new cases. (a)
Basic requirement. You must consider an injury or illness to be a
"new case" if: (1)
The employee has not previously experienced a recorded injury or illness of
the same type that affects the same part of the body, or (2)
The employee previously experienced a recorded injury or illness of the same
type that affected the same part of the body but had recovered completely
(all signs and symptoms had disappeared) from the previous injury or illness
and an event or exposure in the work environment caused the signs or symptoms
to reappear. (b)
Implementation. (1) When an employee experiences the signs or
symptoms of a chronic work-related illness, do I need to consider each
recurrence of signs or symptoms to be a new case? No, for occupational
illnesses where the signs or symptoms may recur or continue in the absence of
an exposure in the workplace, the case must only be recorded once. Examples
may include occupational cancer, asbestosis, byssinosis and silicosis. (2)
When an employee experiences the signs or symptoms of an injury or illness
as a result of an event or exposure in the workplace, such as an episode of
occupational asthma, must I treat the episode as a new case? Yes, because
the episode or recurrence was caused by an event or exposure in the
workplace, the incident must be treated as a new case. (3)
May I rely on a physician or other licensed health care professional to
determine whether a case is a new case or a recurrence of an old case? You
are not required to seek the advice of a physician or other licensed health
care professional. However, if you do seek such advice, you must follow the
physician or other licensed health care professional's recommendation about
whether the case is a new case or a recurrence. If you receive
recommendations from two or more physicians or other licensed health care
professionals, you must make a decision as to which recommendation is the
most authoritative (best documented, best reasoned, or most authoritative),
and record the case based upon that recommendation. § 1904.7 General recording criteria. (a)
Basic requirement. You must consider an injury or illness to meet the
general recording criteria, and therefore to be recordable, if it results in
any of the following: death, days away from work, restricted work or transfer
to another job, medical treatment beyond first aid, or loss of consciousness.
You must also consider a case to meet the general recording criteria if it
involves a significant injury or illness diagnosed by a physician or other
licensed health care professional, even if it does not result in death, days
away from work, restricted work or job transfer, medical treatment beyond
first aid, or loss of consciousness. (b)
Implementation. (1) How do I decide if a case meets one or more of
the general recording criteria? A work-related injury or illness must be
recorded if it results in one or more of the following: (i)
Death. See § 1904.7(b)(2). (ii)
Days away from work. See § 1904.7(b)(3). (iii)
Restricted work or transfer to another job. See § 1904.7(b)(4). (iv)
Medical treatment beyond first aid. See § 1904.7(b)(5). (v)
Loss of consciousness. See § 1904.7(b)(6). (vi)
A significant injury or illness diagnosed by a physician or other licensed
health care professional. See § 1904.7(b)(7). (2)
How do I record a work-related injury or illness that results in the
employee's death? You must record an injury or illness that results in
death by entering a check mark on the OSHA 300 Log in the space for cases
resulting in death. You must also report any work-related fatality to OSHA
within eight (8) hours, as required by § 1904.39. (3)
How do I record a work-related injury or illness that results in days away
from work? When an injury or illness involves one or more days away from
work, you must record the injury or illness on the OSHA 300 Log with a check
mark in the space for cases involving days away and an entry of the number of
calendar days away from work in the number of days column. If the employee is
out for an extended period of time, you must enter an estimate of the days
that the employee will be away, and update the day count when the actual
number of days is known. (i)
Do I count the day on which the injury occurred or the illness began? No,
you begin counting days away on the day after the injury occurred or the
illness began. (ii)
How do I record an injury or illness when a physician or other licensed
health care professional recommends that the worker stay at home but the
employee comes to work anyway? You must record these injuries and
illnesses on the OSHA 300 Log using the check box for cases with days away
from work and enter the number of calendar days away recommended by the
physician or other licensed health care professional. If a physician or other
licensed health care professional recommends days away, you should encourage
your employee to follow that recommendation. However, the days away must be
recorded whether the injured or ill employee follows the physician or
licensed health care professional's recommendation or not. If you receive
recommendations from two or more physicians or other licensed health care
professionals, you may make a decision as to which recommendation is the most
authoritative, and record the case based upon that recommendation. (iii)
How do I handle a case when a physician or other licensed health care
professional recommends that the worker return to work but the employee stays
at home anyway? In this situation, you must end the count of days away
from work on the date the physician or other licensed health care professional
recommends that the employee return to work. (iv)
How do I count weekends, holidays, or other days the employee would not
have worked anyway? You must count the number of calendar days the
employee was unable to work as a result of the injury or illness, regardless
of whether or not the employee was scheduled to work on those day(s). Weekend
days, holidays, vacation days or other days off are included in the total
number of days recorded if the employee would not have been able to work on
those days because of a work-related injury or illness. (v)
How do I record a case in which a worker is injured or becomes ill on a
Friday and reports to work on a Monday, and was not scheduled to work on the
weekend? You need to record this case only if you receive information
from a physician or other licensed health care professional indicating that
the employee should not have worked, or should have performed only restricted
work, during the weekend. If so, you must record the injury or illness as a case
with days away from work or restricted work, and enter the day counts, as
appropriate. (vi)
How do I record a case in which a worker is injured or becomes ill on the
day before scheduled time off such as a holiday, a planned vacation, or a
temporary plant closing? You need to record a case of this type only if
you receive information from a physician or other licensed health care
professional indicating that the employee should not have worked, or should
have performed only restricted work, during the scheduled time off. If so,
you must record the injury or illness as a case with days away from work or
restricted work, and enter the day counts, as appropriate. (vii)
Is there a limit to the number of days away from work I must count? Yes,
you may "cap" the total days away at 180 calendar days. You are not
required to keep track of the number of calendar days away from work if the
injury or illness resulted in more than 180 calendar days away from work
and/or days of job transfer or restriction. In such a case, entering 180 in
the total days away column will be considered adequate. (viii)
May I stop counting days if an employee who is away from work because of
an injury or illness retires or leaves my company? Yes, if the employee
leaves your company for some reason unrelated to the injury or illness, such
as retirement, a plant closing, or to take another job, you may stop counting
days away from work or days of restriction/job transfer. If the employee
leaves your company because of the injury or illness, you must estimate the
total number of days away or days of restriction/job transfer and enter the
day count on the 300 Log. (ix)
If a case occurs in one year but results in days away during the next
calendar year, do I record the case in both years? No, you only record
the injury or illness once. You must enter the number of calendar days away
for the injury or illness on the OSHA 300 Log for the year in which the
injury or illness occurred. If the employee is still away from work because
of the injury or illness when you prepare the annual summary, estimate the
total number of calendar days you expect the employee to be away from work,
use this number to calculate the total for the annual summary, and then
update the initial log entry later when the day count is known or reaches the
180-day cap. (4)
How do I record a work-related injury or illness that results in
restricted work or job transfer? When an injury or illness involves
restricted work or job transfer but does not involve death or days away from
work, you must record the injury or illness on the OSHA 300 Log by placing a
check mark in the space for job transfer or restriction and an entry of the
number of restricted or transferred days in the restricted workdays column. (i)
How do I decide if the injury or illness resulted in restricted work? Restricted
work occurs when, as the result of a work-related injury or illness: (A)
You keep the employee from performing one or more of the routine functions of
his or her job, or from working the full workday that he or she would
otherwise have been scheduled to work; or (B)
A physician or other licensed health care professional recommends that the
employee not perform one or more of the routine functions of his or her job,
or not work the full workday that he or she would otherwise have been
scheduled to work. (ii)
What is meant by "routine functions"? For recordkeeping
purposes, an employee's routine functions are those work activities the
employee regularly performs at least once per week. (iii)
Do I have to record restricted work or job transfer if it applies only to
the day on which the injury occurred or the illness began? No, you do not
have to record restricted work or job transfers if you, or the physician or
other licensed health care professional, impose the restriction or transfer
only for the day on which the injury occurred or the illness began. (iv)
If you or a physician or other licensed health care professional
recommends a work restriction, is the injury or illness automatically
recordable as a "restricted work" case? No, a recommended work
restriction is recordable only if it affects one or more of the employee's
routine job functions. To determine whether this is the case, you must
evaluate the restriction in light of the routine functions of the injured or
ill employee's job. If the restriction from you or the physician or other
licensed health care professional keeps the employee from performing one or
more of his or her routine job functions, or from working the full workday
the injured or ill employee would otherwise have worked, the employee's work
has been restricted and you must record the case. (v)
How do I record a case where the worker works only for a partial work
shift because of a work-related injury or illness? A partial day of work
is recorded as a day of job transfer or restriction for recordkeeping
purposes, except for the day on which the injury occurred or the illness
began. (vi)
If the injured or ill worker produces fewer goods or services than he or
she would have produced prior to the injury or illness but otherwise performs
all of the routine functions of his or her work, is the case considered a
restricted work case? No, the case is considered restricted work only if
the worker does not perform all of the routine functions of his or her job or
does not work the full shift that he or she would otherwise have worked. (vii)
How do I handle vague restrictions from a physician or other licensed
health care professional, such as that the employee engage only in
"light duty" or "take it easy for a week"? If you are
not clear about the physician or other licensed health care professional's
recommendation, you may ask that person whether the employee can do all of
his or her routine job functions and work all of his or her normally assigned
work shift. If the answer to both of these questions is "Yes," then
the case does not involve a work restriction and does not have to be recorded
as such. If the answer to one or both of these questions is "No,"
the case involves restricted work and must be recorded as a restricted work
case. If you are unable to obtain this additional information from the
physician or other licensed health care professional who recommended the
restriction, record the injury or illness as a case involving restricted work. (viii)
What do I do if a physician or other licensed health care professional
recommends a job restriction meeting OSHA's definition, but the employee does
all of his or her routine job functions anyway? You must record the
injury or illness on the OSHA 300 Log as a restricted work case. If a
physician or other licensed health care professional recommends a job
restriction, you should ensure that the employee complies with that
restriction. If you receive recommendations from two or more physicians or other
licensed health care professionals, you may make a decision as to which
recommendation is the most authoritative, and record the case based upon that
recommendation. (ix)
How do I decide if an injury or illness involved a transfer to another
job? If you assign an injured or ill employee to a job other than his or
her regular job for part of the day, the case involves transfer to another
job. Note: This does not include the day on which the injury or illness
occurred. (x)
Are transfers to another job recorded in the same way as restricted work
cases? Yes, both job transfer and restricted work cases are recorded in
the same box on the OSHA 300 Log. For example, if you assign, or a physician
or other licensed health care professional recommends that you assign, an
injured or ill worker to his or her routine job duties for part of the day
and to another job for the rest of the day, the injury or illness involves a
job transfer. You must record an injury or illness that involves a job
transfer by placing a check in the box for job transfer. (xi)
How do I count days of job transfer or restriction? You count days of
job transfer or restriction in the same way you count days away from work,
using § 1904.7(b)(3)(i) to (viii), above. The only difference is that, if you
permanently assign the injured or ill employee to a job that has been
modified or permanently changed in a manner that eliminates the routine
functions the employee was restricted from performing, you may stop the day
count when the modification or change is made permanent. You must count at
least one day of restricted work or job transfer for such cases. (5)
How do I record an injury or illness that involves medical treatment
beyond first aid? If a work-related injury or illness results in medical
treatment beyond first aid, you must record it on the OSHA 300 Log. If the
injury or illness did not involve death, one or more days away from work, one
or more days of restricted work, or one or more days of job transfer, you
enter a check mark in the box for cases where the employee received medical
treatment but remained at work and was not transferred or restricted. (i)
What is the definition of medical treatment? "Medical
treatment" means the management and care of a patient to combat disease
or disorder. For the purposes of Part 1904, medical treatment does not
include: (A)
Visits to a physician or other licensed health care professional solely for
observation or counseling; (B)
The conduct of diagnostic procedures, such as x-rays and blood tests, including
the administration of prescription medications used solely for diagnostic
purposes (e.g., eye drops to dilate pupils); or (C)
"First aid" as defined in paragraph (b)(5)(ii) of this section. (ii)
What is "first aid"? For the purposes of Part 1904, "first
aid" means the following: (A)
Using a non-prescription medication at nonprescription strength (for
medications available in both prescription and non-prescription form, a
recommendation by a physician or other licensed health care professional to
use a non-prescription medication at prescription strength is considered
medical treatment for recordkeeping purposes); (B)
Administering tetanus immunizations (other immunizations, such as Hepatitis B
vaccine or rabies vaccine, are considered medical treatment); (C)
Cleaning, flushing or soaking wounds on the surface of the skin; (D)
Using wound coverings such as bandages, Band-Aids™, gauze pads, etc.; or
using butterfly bandages or Steri-Strips™ (other wound closing devices such
as sutures, staples, etc., are considered medical treatment); (E)
Using hot or cold therapy; (F)
Using any non-rigid means of support, such as elastic bandages, wraps,
non-rigid back belts, etc. (devices with rigid stays or other systems
designed to immobilize parts of the body are considered medical treatment for
recordkeeping purposes); (G)
Using temporary immobilization devices while transporting an accident victim
(e.g., splints, slings, neck collars, back boards, etc.). (H)
Drilling of a fingernail or toenail to relieve pressure, or draining fluid
from a blister; (I)
Using eye patches; (J)
Removing foreign bodies from the eye using only irrigation or a cotton swab; (K)
Removing splinters or foreign material from areas other than the eye by
irrigation, tweezers, cotton swabs or other simple means; (L)
Using finger guards; (M)
Using massages (physical therapy or chiropractic treatment are considered
medical treatment for recordkeeping purposes); or (N)
Drinking fluids for relief of heat stress. (iii)
Are any other procedures included in first aid? No, this is a complete
list of all treatments considered first aid for Part 1904 purposes. (iv)
Does the professional status of the person providing the treatment have
any effect on what is considered first aid or medical treatment? No, OSHA
considers the treatments listed in § 1904.7(b)(5)(ii) of this Part to be
first aid regardless of the professional status of the person providing the
treatment. Even when these treatments are provided by a physician or other
licensed health care professional, they are considered first aid for the
purposes of Part 1904. Similarly, OSHA considers treatment beyond first aid
to be medical treatment even when it is provided by someone other than a
physician or other licensed health care professional. (v)
What if a physician or other licensed health care professional recommends
medical treatment but the employee does not follow the recommendation? If
a physician or other licensed health care professional recommends medical
treatment, you should encourage the injured or ill employee to follow that
recommendation. However, you must record the case even if the injured or ill
employee does not follow the physician or other licensed health care
professional's recommendation. (6)
Is every work-related injury or illness case involving a loss of
consciousness recordable? Yes, you must record a work-related injury or
illness if the worker becomes unconscious, regardless of the length of time
the employee remains unconscious. (7)
What is a "significant" diagnosed injury or illness that is
recordable under the general criteria even if it does not result in death,
days away from work, restricted work or job transfer, medical treatment
beyond first aid, or loss of consciousness? Work-related cases involving
cancer, chronic irreversible disease, a fractured or cracked bone, or a
punctured eardrum must always be recorded under the general criteria at the
time of diagnosis by a physician or other licensed health care professional. Note to § 1904.7: OSHA believes that most significant injuries and illnesses will
result in one of the criteria listed in § 1904.7(a): death, days away from
work, restricted work or job transfer, medical treatment beyond first aid, or
loss of consciousness. However, there are some significant injuries, such as
a punctured eardrum or a fractured toe or rib, for which neither medical
treatment nor work restrictions may be recommended. In addition, there are
some significant progressive diseases, such as byssinosis, silicosis, and
some types of cancer, for which medical treatment or work restrictions may
not be recommended at the time of diagnosis but are likely to be recommended
as the disease progresses. OSHA believes that cancer, chronic irreversible
diseases, fractured or cracked bones, and punctured eardrums are generally
considered significant injuries and illnesses, and must be recorded at the
initial diagnosis even if medical treatment or work restrictions are not
recommended, or are postponed, in a particular case. § 1904.8 Recording criteria for needlestick and sharps injuries. (a)
Basic requirement. You must record all work-related needlestick
injuries and cuts from sharp objects that are contaminated with another
person's blood or other potentially infectious material (as defined by 29 CFR
1910.1030). You must enter the case on the OSHA 300 Log as an injury. To
protect the employee's privacy, you may not enter the employee's name on the
OSHA 300 Log (see the requirements for privacy cases in paragraphs
1904.29(b)(6) through 1904.29(b)(9)). (b)
Implementation. (1) What does "other potentially infectious
material" mean? The term "other potentially infectious
materials" is defined in the OSHA Bloodborne Pathogens standard at §
1910.1030(b). These materials include: (i)
Human bodily fluids, tissues and organs, and (ii)
Other materials infected with the HIV or hepatitis B (HBV) virus such as
laboratory cultures or tissues from experimental animals. (2)
Does this mean that I must record all cuts, lacerations, punctures, and
scratches? No, you need to record cuts, lacerations, punctures, and
scratches only if they are work-related and involve contamination with
another person's blood or other potentially infectious material. If the cut,
laceration, or scratch involves a clean object, or a contaminant other than
blood or other potentially infectious material, you need to record the case
only if it meets one or more of the recording criteria in § 1904.7. (3)
If I record an injury and the employee is later diagnosed with an
infectious bloodborne disease, do I need to update the OSHA 300 Log? Yes,
you must update the classification of the case on the OSHA 300 Log if the
case results in death, days away from work, restricted work, or job transfer.
You must also update the description to identify the infectious disease and
change the classification of the case from an injury to an illness. (4)
What if one of my employees is splashed or exposed to blood or other
potentially infectious material without being cut or scratched? Do I need
to record this incident? You need to record such an incident on the OSHA 300
Log as an illness if: (i)
It results in the diagnosis of a bloodborne illness, such as HIV, hepatitis
B, or hepatitis C; or (ii)
It meets one or more of the recording criteria in § 1904.7. § 1904.9 Recording criteria for cases involving medical removal under
OSHA standards. (a)
Basic requirement. If an employee is medically removed under the
medical surveillance requirements of an OSHA standard, you must record the
case on the OSHA 300 Log. (b)
Implementation. (1) How do I classify medical removal cases on the
OSHA 300 Log? You must enter each medical removal case on the OSHA 300
Log as either a case involving days away from work or a case involving
restricted work activity, depending on how you decide to comply with the
medical removal requirement. If the medical removal is the result of a
chemical exposure, you must enter the case on the OSHA 300 Log by checking
the "poisoning" column. (2)
Do all of OSHA's standards have medical removal provisions? No, some
OSHA standards, such as the standards covering bloodborne pathogens and
noise, do not have medical removal provisions. Many OSHA standards that cover
specific chemical substances have medical removal provisions. These standards
include, but are not limited to, lead, cadmium, methylene chloride,
formaldehyde, and benzene. (3)
Do I have to record a case where I voluntarily removed the employee from
exposure before the medical removal criteria in an OSHA standard are met?
No, if the case involves voluntary medical removal before the medical removal
levels required by an OSHA standard, you do not need to record the case on
the OSHA 300 Log. § 1904.10 Recording criteria for cases involving occupational hearing
loss. (a)
Basic requirement. If an employee's hearing test (audiogram) reveals
that a Standard Threshold Shift (STS) has occurred, you must record the case
on the OSHA 300 Log by checking the "hearing loss" column. (b)
Implementation. (1) What is a Standard Threshold Shift? A
Standard Threshold Shift, or STS, is defined in the occupational noise
exposure standard at 29 CFR 1910.95(c)(10)(i) as a change in hearing
threshold, relative to the most recent audiogram for that employee, of an
average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz in one or
both ears. (2)
How do I determine whether an STS has occurred? If the employee has
never previously experienced a recordable hearing loss, you must compare the
employee's current audiogram with that employee's baseline audiogram. If the
employee has previously experienced a recordable hearing loss, you must
compare the employee's current audiogram with the employee's revised baseline
audiogram (the audiogram reflecting the employee's previous recordable
hearing loss case). (3)
May I adjust the audiogram results to reflect the effects of aging on
hearing? Yes, when comparing audiogram results, you may adjust the
results for the employee's age when the audiogram was taken using Tables F-1
or F-2, as appropriate, in Appendix F of 29 CFR 1910.95. (4)
Do I have to record the hearing loss if I am going to retest the
employee's hearing? No, if you retest the employee's hearing within 30
days of the first test, and the retest does not confirm the STS, you are not
required to record the hearing loss case on the OSHA 300 Log. If the retest
confirms the STS, you must record the hearing loss illness within seven (7)
calendar days of the retest. (5)
Are there any special rules for determining whether a hearing loss case is
work-related? Yes, hearing loss is presumed to be work-related if the
employee is exposed to noise in the workplace at an 8-hour time-weighted
average of 85 dBA or greater, or to a total noise dose of 50 percent, as
defined in 29 CFR 1910.95. For hearing loss cases where the employee is not
exposed to this level of noise, you must use the rules in § 1904.5 to
determine if the hearing loss is work-related. (6)
If a physician or other licensed health care professional determines the
hearing loss is not work-related, do I still need to record the case? If
a physician or other licensed health care professional determines that the
hearing loss is not work-related or has not been significantly aggravated by
occupational noise exposure, you are not required to consider the case
work-related or to record the case on the OSHA 300 Log. § 1904.11 Recording criteria for work-related tuberculosis cases. (a)
Basic requirement. If any of your employees has been occupationally
exposed to anyone with a known case of active tuberculosis (TB), and that
employee subsequently develops a tuberculosis infection, as evidenced by a
positive skin test or diagnosis by a physician or other licensed health care
professional, you must record the case on the OSHA 300 Log by checking the
"respiratory condition" column. (b)
Implementation. (1) Do I have to record, on the Log, a positive TB
skin test result obtained at a pre-employment physical? No, you do not
have to record it because the employee was not occupationally exposed to a
known case of active tuberculosis in your workplace. (2)
(May I line-out or erase a recorded TB case if I obtain evidence that the
case was not caused by occupational exposure?) Yes, you may line-out or
erase the case from the Log under the following circumstances: (i)
The worker is living in a household with a person who has been diagnosed with
active TB; (ii)
The Public Health Department has identified the worker as a contact of an
individual with a case of active TB unrelated to the workplace; or (iii)
A medical investigation shows that the employee's infection was caused by
exposure to TB away from work, or proves that the case was not related to the
workplace TB exposure. § 1904.12 Recording criteria for cases involving work-related
musculoskeletal disorders. (a)
Basic requirement. If any of your employees experiences a recordable
work-related musculoskeletal disorder (MSD), you must record it on the OSHA
300 Log by checking the "musculoskeletal disorder" column. (b)
Implementation. (1) What is a "musculoskeletal disorder"
or MSD? Musculoskeletal disorders (MSDs) are disorders of the muscles,
nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs do not
include disorders caused by slips, trips, falls, motor vehicle accidents, or
other similar accidents. Examples of MSDs include: Carpal tunnel syndrome,
Rotator cuff syndrome, De Quervain's disease, Trigger finger, Tarsal tunnel
syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud's phenomenon, Carpet
layers knee, Herniated spinal disc, and Low back pain. (2)
How do I decide which musculoskeletal disorders to record? There are
no special criteria for determining which musculoskeletal disorders to
record. An MSD case is recorded using the same process you would use for any
other injury or illness. If a musculoskeletal disorder is work-related, and
is a new case, and meets one or more of the general recording criteria, you
must record the musculoskeletal disorder. The following table will guide you
to the appropriate section of the rule for guidance on recording MSD cases. (i)
Determining if the MSD is work-related. See § 1904.5. (ii)
Determining if the MSD is a new case. See § 1904.6. (iii)
Determining if the MSD meets one or more of the general recording criteria: (A)
Days away from work, see § 1904.7(b)(3). (B)
Restricted work or transfer to another job, or see § 1904.7(b)(4). (C)
Medical treatment beyond first aid. See § 1904.7(b)(5). (3)
If a work-related MSD case involves only subjective symptoms like pain or
tingling, do I have to record it as a musculoskeletal disorder? The
symptoms of an MSD are treated the same as symptoms for any other injury or
illness. If an employee has pain, tingling, burning, numbness or any other
subjective symptom of an MSD, and the symptoms are work-related, and the case
is a new case that meets the recording criteria, you must record the case on
the OSHA 300 Log as a musculoskeletal disorder. §§ 1904.13-1904.28 [Reserved] § 1904.29 Forms (a)
Basic requirement. You must use OSHA 300, 300-A, and 301 forms, or
equivalent forms, for recordable injuries and illnesses. The OSHA 300 form is
called the Log of Work-Related Injuries and Illnesses, the 300-A is the
Summary of Work-Related Injuries and Illnesses, and the OSHA 301 form is
called the Injury and Illness Incident Report. (b)
Implementation. (1) What do I need to do to complete the OSHA 300
Log? You must enter information about your business at the top of the
OSHA 300 Log, enter a one or two line description for each recordable injury
or illness, and summarize this information on the OSHA 300-A at the end of
the year. (2)
What do I need to do to complete the OSHA 301 Incident Report? You
must complete an OSHA 301 Incident Report form, or an equivalent form, for
each recordable injury or illness entered on the OSHA 300 Log. (3)
How quickly must each injury or illness be recorded? You must enter
each recordable injury or illness on the OSHA 300 Log and 301 Incident Report
within seven (7) calendar days of receiving information that a recordable
injury or illness has occurred. (4)
What is an equivalent form? An equivalent form is one that has the
same information, is as readable and understandable, and is completed using
the same instructions as the OSHA form it replaces. Many employers use an
insurance form instead of the OSHA 301 Incident Report, or supplement an
insurance form by adding any additional information required by OSHA. (5)
May I keep my records on a computer? Yes, if the computer can produce
equivalent forms when they are needed, as described under §§ 1904.35 and 1904.40,
you may keep your records using the computer system. (6)
Are there situations where I do not put the employee's name on the forms
for privacy reasons? Yes, if you have a "privacy concern case,"
you may not enter the employee's name on the OSHA 300 Log. Instead, enter
"privacy case" in the space normally used for the employee's name. This
will protect the privacy of the injured or ill employee when another
employee, a former employee, or an authorized employee representative is
provided access to the OSHA 300 Log under § 1904.35(b)(2). You must keep a
separate, confidential list of the case numbers and employee names for your
privacy concern cases so you can update the cases and provide the information
to the government if asked to do so. (7)
How do I determine if an injury or illness is a privacy concern case? You
must consider the following injuries or illnesses to be privacy concern
cases: (i)
An injury or illness to an intimate body part or the reproductive system; (ii)
An injury or illness resulting from a sexual assault; (iii)
Mental illnesses; (iv)
HIV infection, hepatitis, or tuberculosis; (v)
Needlestick injuries and cuts from sharp objects that are contaminated with
another person's blood or other potentially infectious material (see § 1904.8
for definitions); and (vi)
Other illnesses, if the employee independently and voluntarily requests that
his or her name not be entered on the log. Musculoskeletal disorders (MSDs)
are not considered privacy concern cases. (8)
May I classify any other types of injuries and illnesses as privacy
concern cases? No, this is a complete list of all injuries and illnesses
considered privacy concern cases for Part 1904 purposes. (9)
If I have removed the employee's name, but still believe that the employee
may be identified from the information on the forms, is there anything else
that I can do to further protect the employee's privacy? Yes, if you have
a reasonable basis to believe that information describing the privacy concern
case may be personally identifiable even though the employee's name has been
omitted, you may use discretion in describing the injury or illness on both
the OSHA 300 and 301 forms. You must enter enough information to identify the
cause of the incident and the general severity of the injury or illness, but
you do not need to include details of an intimate or private nature. For
example, a sexual assault case could be described as "injury from
assault," or an injury to a reproductive organ could be described as
"lower abdominal injury." (10)
What must I do to protect employee privacy if I wish to provide access to
the OSHA Forms 300 and 301 to persons other than government representatives,
employees, former employees or authorized representatives? If you decide
to voluntarily disclose the Forms to persons other than government
representatives, employees, former employees or authorized representatives
(as required by §§ 1904.35 and 1904.40), you must remove or hide the
employees' names and other personally identifying information, except for the
following cases. You may disclose the Forms with personally identifying
information only: (i)
to an auditor or consultant hired by the employer to evaluate the safety and
health program; (ii)
to the extent necessary for processing a claim for workers' compensation or
other insurance benefits; or (iii)
to a public health authority or law enforcement agency for uses and
disclosures for which consent, an authorization, or opportunity to agree or
object is not required under Department of Health and Human Services
Standards for Privacy of Individually Identifiable Health Information, 45 CFR
164.512. Subpart D -- Other OSHA Injury and Illness Recordkeeping Requirements § 1904.30 Multiple business establishments. (a)
Basic requirement. You must keep a separate OSHA 300 Log for each
establishment that is expected to be in operation for one year or longer. (b)
Implementation. (1) Do I need to keep OSHA injury and illness
records for short-term establishments (i.e., establishments that will exist
for less than a year)? Yes, however, you do not have to keep a separate
OSHA 300 Log for each such establishment. You may keep one OSHA 300 Log that
covers all of your short-term establishments. You may also include the
short-term establishments' recordable injuries and illnesses on an OSHA 300
Log that covers short-term establishments for individual company divisions or
geographic regions. (2)
May I keep the records for all of my establishments at my headquarters
location or at some other central location? Yes, you may keep the records
for an establishment at your headquarters or other central location if you
can: (i)
Transmit information about the injuries and illnesses from the establishment
to the central location within seven (7) calendar days of receiving
information that a recordable injury or illness has occurred; and (ii)
Produce and send the records from the central location to the establishment
within the time frames required by § 1904.35 and § 1904.40 when you are
required to provide records to a government representative, employees, former
employees or employee representatives. (3)
Some of my employees work at several different locations or do not work at
any of my establishments at all. How do I record cases for these employees?
You must link each of your employees with one of your establishments, for
recordkeeping purposes. You must record the injury and illness on the OSHA
300 Log of the injured or ill employee's establishment, or on an OSHA 300 Log
that covers that employee's short-term establishment. (4)
How do I record an injury or illness when an employee of one of my
establishments is injured or becomes ill while visiting or working at another
of my establishments, or while working away from any of my establishments?
If the injury or illness occurs at one of your establishments, you must
record the injury or illness on the OSHA 300 Log of the establishment at
which the injury or illness occurred. If the employee is injured or becomes
ill and is not at one of your establishments, you must record the case on the
OSHA 300 Log at the establishment at which the employee normally works. § 1904.31 Covered employees. (a)
Basic requirement. You must record on the OSHA 300 Log the recordable
injuries and illnesses of all employees on your payroll, whether they are labor,
executive, hourly, salary, part-time, seasonal, or migrant workers. You also
must record the recordable injuries and illnesses that occur to employees who
are not on your payroll if you supervise these employees on a day-to-day
basis. If your business is organized as a sole proprietorship or partnership,
the owner or partners are not considered employees for recordkeeping
purposes. (b)
Implementation. (1) If a self-employed person is injured or becomes
ill while doing work at my business, do I need to record the injury or
illness? No, self-employed individuals are not covered by the OSH Act or
this regulation. (2)
If I obtain employees from a temporary help service, employee leasing
service, or personnel supply service, do I have to record an injury or illness
occurring to one of those employees? You must record these injuries and
illnesses if you supervise these employees on a day-to-day basis. (3)
If an employee in my establishment is a contractor's employee, must I
record an injury or illness occurring to that employee? If the
contractor's employee is under the day-to-day supervision of the contractor,
the contractor is responsible for recording the injury or illness. If you
supervise the contractor employee's work on a day-to-day basis, you must
record the injury or illness. (4)
Must the personnel supply service, temporary help service, employee
leasing service, or contractor also record the injuries or illnesses
occurring to temporary, leased or contract employees that I supervise on a
day-to-day basis? No, you and the temporary help service, employee
leasing service, personnel supply service, or contractor should coordinate
your efforts to make sure that each injury and illness is recorded only once:
either on your OSHA 300 Log (if you provide day-to-day supervision) or on the
other employer's OSHA 300 Log (if that company provides day-to-day
supervision). § 1904.32 Annual summary. (a)
Basic requirement. At the end of each calendar year, you must: (1)
Review the OSHA 300 Log to verify that the entries are complete and accurate,
and correct any deficiencies identified; (2)
Create an annual summary of injuries and illnesses recorded on the OSHA 300
Log; (3)
Certify the summary; and (4)
Post the annual summary. (b)
Implementation. (1) How extensively do I have to review the OSHA
300 Log entries at the end of the year? You must review the entries as
extensively as necessary to make sure that they are complete and correct. (2)
How do I complete the annual summary? You must: (i)
Total the columns on the OSHA 300 Log (if you had no recordable cases, enter
zeros for each column total); and (ii)
Enter the calendar year covered, the company's name, establishment name,
establishment address, annual average number of employees covered by the OSHA
300 Log, and the total hours worked by all employees covered by the OSHA 300
Log. (iii)
If you are using an equivalent form other than the OSHA 300-A summary form,
as permitted under § 1904.6(b)(4), the summary you use must also include the
employee access and employer penalty statements found on the OSHA 300-A
Summary form. (3)
How do I certify the annual summary? A company executive must certify
that he or she has examined the OSHA 300 Log and that he or she reasonably
believes, based on his or her knowledge of the process by which the
information was recorded, that the annual summary is correct and complete. (4)
Who is considered a company executive? The company executive who
certifies the log must be one of the following persons: (i)
An owner of the company (only if the company is a sole proprietorship or
partnership); (ii)
An officer of the corporation; (iii)
The highest ranking company official working at the establishment; or (iv)
The immediate supervisor of the highest ranking company official working at
the establishment. (5)
How do I post the annual summary? You must post a copy of the annual
summary in each establishment in a conspicuous place or places where notices
to employees are customarily posted. You must ensure that the posted annual
summary is not altered, defaced or covered by other material. (6)
When do I have to post the annual summary? You must post the summary
no later than February 1 of the year following the year covered by the
records and keep the posting in place until April 30. § 1904.33 Retention and updating. (a)
Basic requirement. You must save the OSHA 300 Log, the privacy case
list (if one exists), the annual summary, and the OSHA 301 Incident Report
forms for five (5) years following the end of the calendar year that these records
cover. (b)
Implementation. (1) Do I have to update the OSHA 300 Log during the
five-year storage period? Yes, during the storage period, you must update
your stored OSHA 300 Logs to include newly discovered recordable injuries or
illnesses and to show any changes that have occurred in the classification of
previously recorded injuries and illnesses. If the description or outcome of
a case changes, you must remove or line out the original entry and enter the
new information. (2)
Do I have to update the annual summary? No, you are not required to
update the annual summary, but you may do so if you wish. (3)
Do I have to update the OSHA 301 Incident Reports? No, you are not
required to update the OSHA 301 Incident Reports, but you may do so if you
wish. § 1904.34 Change in business ownership. If
your business changes ownership, you are responsible for recording and
reporting work-related injuries and illnesses only for that period of the
year during which you owned the establishment. You must transfer the Part
1904 records to the new owner. The new owner must save all records of the
establishment kept by the prior owner, as required by § 1904.33 of this Part,
but need not update or correct the records of the prior owner. § 1904.35 Employee involvement. (a)
Basic requirement. Your employees and their representatives must be
involved in the recordkeeping system in several ways. (1)
You must inform each employee of how he or she is to report an injury or
illness to you. (2)
You must provide limited access to your injury and illness records for your
employees and their representatives. (b)
Implementation. (1) What must I do to make sure that employees
report work-related injuries and illnesses to me? (i)
You must set up a way for employees to report work-related injuries and
illnesses promptly; and (ii)
You must tell each employee how to report work-related injuries and illnesses
to you. (2)
Do I have to give my employees and their representatives access to the
OSHA injury and illness records? Yes, your employees, former employees,
their personal representatives, and their authorized employee representatives
have the right to access the OSHA injury and illness records, with some
limitations, as discussed below. (i)
Who is an authorized employee representative? An authorized employee
representative is an authorized collective bargaining agent of employees. (ii)
Who is a "personal representative" of an employee or former
employee? A personal representative is: (A)
Any person that the employee or former employee designates as such, in
writing; or (B)
The legal representative of a deceased or legally incapacitated employee or
former employee. (iii)
If an employee or representative asks for access to the OSHA 300 Log, when
do I have to provide it? When an employee, former employee, personal
representative, or authorized employee representative asks for copies of your
current or stored OSHA 300 Log(s) for an establishment the employee or former
employee has worked in, you must give the requester a copy of the relevant
OSHA 300 Log(s) by the end of the next business day. (iv)
May I remove the names of the employees or any other information from the
OSHA 300 Log before I give copies to an employee, former employee, or
employee representative? No, you must leave the names on the 300 Log. However,
to protect the privacy of injured and ill employees, you may not record the
employee's name on the OSHA 300 Log for certain "privacy concern
cases," as specified in paragraphs 1904.29(b)(6) through 1904.29(b)(9). (v)
If an employee or representative asks for access to the OSHA 301 Incident
Report, when do I have to provide it? (A)
When an employee, former employee, or personal representative asks for a copy
of the OSHA 301 Incident Report describing an injury or illness to that
employee or former employee, you must give the requester a copy of the OSHA
301 Incident Report containing that information by the end of the next
business day. (B)
When an authorized employee representative asks for a copies of the OSHA 301
Incident Reports for an establishment where the agent represents employees
under a collective bargaining agreement, you must give copies of those forms
to the authorized employee representative within 7 calendar days. You are
only required to give the authorized employee representative information from
the OSHA 301 Incident Report section titled "Tell us about the
case." You must remove all other information from the copy of the OSHA
301 Incident Report or the equivalent substitute form that you give to the
authorized employee representative. (vi)
May I charge for the copies? No, you may not charge for these copies
the first time they are provided. However, if one of the designated persons
asks for additional copies, you may assess a reasonable charge for retrieving
and copying the records. § 1904.36 Prohibition against discrimination. Section
11(c) of the Act prohibits you from discriminating against an employee for
reporting a work-related fatality, injury or illness. That provision of the
Act also protects the employee who files a safety and health complaint, asks
for access to the Part 1904 records, or otherwise exercises any rights
afforded by the OSH Act. § 1904.37 State recordkeeping regulations. (a)
Basic requirement. Some States operate their own OSHA programs, under
the authority of a State Plan approved by OSHA. States operating
OSHA-approved State Plans must have occupational injury and illness recording
and reporting requirements that are substantially identical to the
requirements in this Part (see 29 CFR 1902.3(k), 29 CFR 1952.4 and 29 CFR
1956.10(i)). (b)
Implementation. (1) State-Plan States must have the same requirements
as Federal OSHA for determining which injuries and illnesses are recordable
and how they are recorded. (2)
For other Part 1904 provisions (for example, industry exemptions, reporting
of fatalities and hospitalizations, record retention, or employee
involvement), State-Plan State requirements may be more stringent than or
supplemental to the Federal requirements, but because of the unique nature of
the national recordkeeping program, States must consult with and obtain
approval of any such requirements. (3)
Although State and local government employees are not covered Federally, all
State-Plan States must provide coverage, and must develop injury and illness
statistics, for these workers. State Plan recording and reporting
requirements for State and local government entities may differ from those
for the private sector but must meet the requirements of paragraphs
1904.37(b)(1) and (b)(2). (4)
A State-Plan State may not issue a variance to a private sector employer and
must recognize all variances issued by Federal OSHA. (5)
A State Plan State may only grant an injury and illness recording and
reporting variance to a State or local government employer within the State
after obtaining approval to grant the variance from Federal OSHA. § 1904.38 Variances from the recordkeeping rule. (a)
Basic requirement. If you wish to keep records in a different manner
from the manner prescribed by the Part 1904 regulations, you may submit a
variance petition to the Assistant Secretary of Labor for Occupational Safety
and Health, U.S. Department of Labor, Washington, DC 20210. You can obtain a
variance only if you can show that your alternative recordkeeping system: (1)
Collects the same information as this Part requires; (2)
Meets the purposes of the Act; and (3)
Does not interfere with the administration of the Act. (b)
Implementation. (1) What do I need to include in my variance
petition? You must include the following items in your petition: (i)
Your name and address; (ii)
A list of the State(s) where the variance would be used; (iii)
The address(es) of the business establishment(s) involved; (iv)
A description of why you are seeking a variance; (v)
A description of the different recordkeeping procedures you propose to use; (vi)
A description of how your proposed procedures will collect the same
information as would be collected by this Part and achieve the purpose of the
Act; and (vii)
A statement that you have informed your employees of the petition by giving
them or their authorized representative a copy of the petition and by posting
a statement summarizing the petition in the same way as notices are posted
under § 1903.2(a). (2)
How will the Assistant Secretary handle my variance petition? The
Assistant Secretary will take the following steps to process your variance
petition. (i)
The Assistant Secretary will offer your employees and their authorized
representatives an opportunity to submit written data, views, and arguments
about your variance petition. (ii)
The Assistant Secretary may allow the public to comment on your variance
petition by publishing the petition in the Federal Register. If the
petition is published, the notice will establish a public comment period and
may include a schedule for a public meeting on the petition. (iii)
After reviewing your variance petition and any comments from your employees
and the public, the Assistant Secretary will decide whether or not your
proposed recordkeeping procedures will meet the purposes of the Act, will not
otherwise interfere with the Act, and will provide the same information as
the Part 1904 regulations provide. If your procedures meet these criteria,
the Assistant Secretary may grant the variance subject to such conditions as
he or she finds appropriate. (iv)
If the Assistant Secretary grants your variance petition, OSHA will publish a
notice in the Federal Register to announce the variance. The notice
will include the practices the variance allows you to use, any conditions
that apply, and the reasons for allowing the variance. (3)
If I apply for a variance, may I use my proposed recordkeeping procedures
while the Assistant Secretary is processing the variance petition? No,
alternative recordkeeping practices are only allowed after the variance is
approved. You must comply with the Part 1904 regulations while the Assistant
Secretary is reviewing your variance petition. (4)
If I have already been cited by OSHA for not following the Part 1904 regulations,
will my variance petition have any effect on the citation and penalty? No,
in addition, the Assistant Secretary may elect not to review your variance
petition if it includes an element for which you have been cited and the
citation is still under review by a court, an Administrative Law Judge (ALJ),
or the OSH Review Commission. (5)
If I receive a variance, may the Assistant Secretary revoke the variance
at a later date? Yes, the Assistant Secretary may revoke your variance if
he or she has good cause. The procedures revoking a variance will follow the
same process as OSHA uses for reviewing variance petitions, as outlined in
paragraph 1904.38(b)(2). Except in cases of willfulness or where necessary
for public safety, the Assistant Secretary will: (i)
Notify you in writing of the facts or conduct that may warrant revocation of
your variance; and (ii)
Provide you, your employees, and authorized employee representatives with an
opportunity to participate in the revocation procedures. Subpart E -- Reporting Fatality, Injury and Illness Information to the
Government § 1904.39 Reporting fatalities and multiple hospitalization incidents
to OSHA. (a)
Basic requirement. Within eight (8) hours after the death of any
employee from a work-related incident or the in-patient hospitalization of
three or more employees as a result of a work-related incident, you must
orally report the fatality/multiple hospitalization by telephone or in person
to the Area Office of the Occupational Safety and Health Administration
(OSHA), U.S. Department of Labor, that is nearest to the site of the
incident. You may also use the OSHA toll-free central telephone number,
1-800-321-OSHA (1-800-321-6742). (b)
Implementation. (1) If the Area Office is closed, may I report the
incident by leaving a message on OSHA's answering machine, faxing the area
office, or sending an e-mail? No, if you can't talk to a person at the
Area Office, you must report the fatality or multiple hospitalization
incident using the 800 number. (2)
What information do I need to give to OSHA about the incident? You
must give OSHA the following information for each fatality or multiple
hospitalization incident: (i)
The establishment name; (ii)
The location of the incident; (iii)
The time of the incident; (iv)
The number of fatalities or hospitalized employees; (v)
The names of any injured employees; (vi)
Your contact person and his or her phone number; and (vii)
A brief description of the incident. (3)
Do I have to report every fatality or multiple hospitalization incident
resulting from a motor vehicle accident? No, you do not have to report
all of these incidents. If the motor vehicle accident occurs on a public
street or highway, and does not occur in a construction work zone, you do not
have to report the incident to OSHA. However, these injuries must be recorded
on your OSHA injury and illness records, if you are required to keep such
records. (4)
Do I have to report a fatality or multiple hospitalization incident that
occurs on a commercial or public transportation system? No, you do not
have to call OSHA to report a fatality or multiple hospitalization incident
if it involves a commercial airplane, train, subway or bus accident. However,
these injuries must be recorded on your OSHA injury and illness records, if
you are required to keep such records. (5)
Do I have to report a fatality caused by a heart attack at work? Yes,
your local OSHA Area Office director will decide whether to investigate the
incident, depending on the circumstances of the heart attack. (6)
Do I have to report a fatality or hospitalization that occurs long after
the incident? No, you must only report each fatality or multiple
hospitalization incident that occurs within thirty (30) days of an incident. (7)
What if I don't learn about an incident right away? If you do not
learn of a reportable incident at the time it occurs and the incident would
otherwise be reportable under paragraphs (a) and (b) of this section, you
must make the report within eight (8) hours of the time the incident is
reported to you or to any of your agent(s) or employee(s). § 1904.40 Providing records to government representatives. (a)
Basic requirement. When an authorized government representative asks
for the records you keep under Part 1904, you must provide copies of the
records within four (4) business hours. (b)
Implementation. (1) What government representatives have the right
to get copies of my Part 1904 records? The government representatives
authorized to receive the records are: (i)
A representative of the Secretary of Labor conducting an inspection or
investigation under the Act; (ii)
A representative of the Secretary of Health and Human Services (including the
National Institute for Occupational Safety and Health -- NIOSH) conducting an
investigation under section 20(b) of the Act, or (iii)
A representative of a State agency responsible for administering a State plan
approved under section 18 of the Act. (2)
Do I have to produce the records within four (4) hours if my records are
kept at a location in a different time zone? OSHA will consider your
response to be timely if you give the records to the government
representative within four (4) business hours of the request. If you maintain
the records at a location in a different time zone, you may use the business
hours of the establishment at which the records are located when calculating
the deadline. § 1904.41 Annual OSHA injury and illness survey of ten or more
employers. (a)
Basic requirement. If you receive OSHA's annual survey form, you must
fill it out and send it to OSHA or OSHA's designee, as stated on the survey
form. You must report the following information for the year described on the
form: (1)
the number of workers you employed; (2)
the number of hours worked by your employees; and (3)
the requested information from the records that you keep under Part 1904. (b)
Implementation. (1) Does every employer have to send data to OSHA?
No, each year, OSHA sends injury and illness survey forms to employers in
certain industries. In any year, some employers will receive an OSHA survey
form and others will not. You do not have to send injury and illness data to
OSHA unless you receive a survey form. (2)
How quickly do I need to respond to an OSHA survey form? You must send
the survey reports to OSHA, or OSHA's designee, by mail or other means
described in the survey form, within 30 calendar days, or by the date stated
in the survey form, whichever is later. (3)
Do I have to respond to an OSHA survey form if I am normally exempt from
keeping OSHA injury and illness records? Yes, even if you are exempt from
keeping injury and illness records under § 1904.1 to § 1904.3, OSHA may
inform you in writing that it will be collecting injury and illness
information from you in the following year. If you receive such a letter, you
must keep the injury and illness records required by § 1904.5 to § 1904.15
and make a survey report for the year covered by the survey. (4)
Do I have to answer the OSHA survey form if I am located in a State-Plan
State? Yes, all employers who receive survey forms must respond to the
survey, even those in State-Plan States. (5)
Does this section affect OSHA's authority to inspect my workplace? No,
nothing in this section affects OSHA's statutory authority to investigate
conditions related to occupational safety and health. § 1904.42 Requests from the Bureau of Labor Statistics for data. (a)
Basic requirement. If you receive a Survey of Occupational Injuries
and Illnesses Form from the Bureau of Labor Statistics (BLS), or a BLS
designee, you must promptly complete the form and return it following the
instructions contained on the survey form. (b)
Implementation. (1) Does every employer have to send data to the
BLS? No, each year, the BLS sends injury and illness survey forms to
randomly selected employers and uses the information to create the Nation's
occupational injury and illness statistics. In any year, some employers will
receive a BLS survey form and others will not. You do not have to send injury
and illness data to the BLS unless you receive a survey form. (2)
If I get a survey form from the BLS, what do I have to do? If you
receive a Survey of Occupational Injuries and Illnesses Form from the Bureau
of Labor Statistics (BLS), or a BLS designee, you must promptly complete the
form and return it, following the instructions contained on the survey form. (3)
Do I have to respond to a BLS survey form if I am normally exempt from
keeping OSHA injury and illness records? Yes, even if you are exempt from
keeping injury and illness records under § 1904.1 to § 1904.3, the BLS may
inform you in writing that it will be collecting injury and illness
information from you in the coming year. If you receive such a letter, you
must keep the injury and illness records required by § 1904.5 to § 1904.15
and make a survey report for the year covered by the survey. (4)
Do I have to answer the BLS survey form if I am located in a State-Plan
State? Yes, all employers who receive a survey form must respond to the
survey, even those in State-Plan States. Subpart F -- Transition From the Former Rule § 1904.43 Summary and posting of the 2001 data. (a)
Basic requirement. If you were required to keep OSHA 200 Logs in 2001,
you must post a 2000 annual summary from the OSHA 200 Log of occupational
injuries and illnesses for each establishment. (b)
Implementation. (1) What do I have to include in the summary? (i)
You must include a copy of the totals from the 2001 OSHA 200 Log and the
following information from that form: (A)
The calendar year covered; (B)
Your company name; (C)
The name and address of the establishment; and (D)
The certification signature, title and date. (ii)
If no injuries or illnesses occurred at your establishment in 2001, you must
enter zeros on the totals line and post the 2001 summary. (2)
When am I required to summarize and post the 2001 information? (i)
You must complete the summary by February 1, 2002; and (ii)
You must post a copy of the summary in each establishment in a conspicuous place
or places where notices to employees are customarily posted. You must ensure
that the summary is not altered, defaced or covered by other material. (3)
You must post the 2001 summary from February 1, 2002 to March 1, 2002. § 1904.44 Retention and updating of old forms. You
must save your copies of the OSHA 200 and 101 forms for five years following
the year to which they relate and continue to provide access to the data as
though these forms were the OSHA 300 and 301 forms. You are not required to
update your old 200 and 101 forms. § 1904.45 OMB control numbers under the Paperwork Reduction Act The
following sections each contain a collection of information requirement which
has been approved by the Office of Management and Budget under the control
number listed
Subpart G -- Definitions § 1904.46 Definitions The Act. The Act means the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). The definitions contained in section 3 of the Act (29 U.S.C. 652) and related interpretations apply to such terms when used in this Part 1904. Establishment. An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities. (1) Can one business location include two or more establishments? Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments. An employer may divide one location into two or more establishments only when: (i) Each of the establishments represents a distinctly separate business; (ii) Each business is engaged in a different economic activity; (iii) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and (iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment. (2) Can an establishment include more than one physical location? Yes, but only under certain conditions. An employer may combine two or more physical locations into a single establishment only when: (i) The employer operates the locations as a single business operation under common management; (ii) The locations are all located in close proximity to each other; and (iii) The employer keeps one set of business records for the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street. (3) If an employee telecommutes from home, is his or her home considered a separate establishment? No, for employees who telecommute from home, the employee's home is not a business establishment and a separate 300 Log is not required. Employees who telecommute must be linked to one of your establishments under § 1904.30(b)(3). Injury or illness. An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. (Note: Injuries and illnesses are recordable only if they are new, work-related cases that meet one or more of the Part 1904 recording criteria.) Physician or Other Licensed Health Care Professional. A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently perform, or be delegated the responsibility to perform, the activities described by this regulation. You. "You" means an employer as defined in Section 3 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 652). PART 1952 -- [AMENDED] 2. The authority citation for Part 1952 is revised to read as follows: Authority: 29 U.S.C. 667; 29 CFR part 1902, Secretary of Labor's Order No. 1-90 (55 FR 9033) and 6-96 (62 FR 111). 3. Section 1952.4 is revised to read as follows: § 1952.4 Injury and illness recording and reporting requirements. (a) Injury and illness recording and reporting requirements promulgated by State-Plan States must be substantially identical to those in 29 CFR part 1904 "Recording and Reporting Occupational Injuries and Illnesses." State-Plan States must promulgate recording and reporting requirements that are the same as the Federal requirements for determining which injuries and illnesses will be entered into the records and how they are entered. All other injury and illness recording and reporting requirements that are promulgated by State-Plan States may be more stringent than, or supplemental to, the Federal requirements, but, because of the unique nature of the national recordkeeping program, States must consult with OSHA and obtain approval of such additional or more stringent reporting and recording requirements to ensure that they will not interfere with uniform reporting objectives. State-Plan States must extend the scope of their regulation to State and local government employers. (b) A State may not grant a variance to the injury and illness recording and reporting requirements for private sector employers. Such variances may only be granted by Federal OSHA to assure nationally consistent workplace injury and illness statistics. A State may only grant a variance to the injury and illness recording and reporting requirements for State or local government entities in that State after obtaining approval from Federal OSHA. (c) A State must recognize any variance issued by Federal OSHA. (d) A State may, but is not required, to participate in the Annual OSHA Injury/Illness Survey as authorized by 29 CFR 1904.41. A participating State may either adopt requirements identical to 1904.41 in its recording and reporting regulation as an enforceable State requirement, or may defer to the Federal regulation for enforcement. Nothing in any State plan shall affect the duties of employers to comply with 1904.41, when surveyed, as provided by section 18(c)(7) of the Act. [FR Doc. 01-725 Filed 1-18-01; 8:45 am] BILLING CODE 4510-26-P Footnote (1) This rule excludes minor or insignificant injuries and illnesses from reporting requirements. The exclusion of minor illnesses represents a change from the former rule, and is discussed infra. (Back to Text) Footnote (2) The term restricted motion has been interpreted to mean restricted work motion and to be essentially synonymous with restricted work. OSHA does not distinguish between the two terms. OSHA's former Guidelines (Ex. 2, p. 43) clearly stated that a restriction of work or motion, such as that resulting from a bandaged finger, that did not also impair work was not recordable, and that is also the interpretation of the final rule. (Back to Text) Footnote (3) The relevant language of Section 11(c) that "No person shall discharge or in any manner discriminate against any employee * * * because of the exercise by such employee on behalf of himself or others of any rights afforded by this Act." (Back to Text) Footnote (4) National Research Council of the National Academy of Sciences, Counting Injuries and Illnesses in the Workplace: Proposal for a Better System, 1987. (Back to Text) Footnote (5) Keystone Center, Keystone National Policy Dialogue on Work-Related Illness and Injury Recording, 1989. (Back to Text) Footnote (6) Meridian Research, Inc., Economic Analysis of Proposed Changes to OSHA's Recordkeeping Requirements (29 CFR 1904), 1991. (Back to Text) Footnote (7) In addition, state and local government employers will continue to be covered in State Plan states. (Back to Text) Footnote (8) The SBA data have size classes of 5-9 employees and 10-19 employees. Establishments with 10 employees were assumed to account for ten percent of the 10-19-employee size class. Since the distribution is skewed by size, rather than being uniform, this assumption slightly overstates the number of establishments covered by the regulation. (Back to Text) Footnote (9) Benefits and overhead are computed at 38.3 percent of the hourly wage. (Back to Text) Footnote (10) $1,482,384 = (1,186,698 Establishments) x (20 Minutes/ Establishment) x ($26.32/Hr.) x [0.07/(1-(1/(1.07) 10))] (Back to Text) Footnote (11) $3,123,394 = (1,186,698 Establishments) x (0.2) x (30 Minutes/Establishment) x ($26.32/Hour) (Back to Text) Footnote (12) $945,309 = (119,720 Establishments) x (0.2) x (90 Minutes/Establishment) x ($26.32/Hour) (Back to Text) Footnote (13) $1,615,612 = (179,287 Establishments) x (60 Minutes/ Establishment) x ($26.32/Hour) x [0.07/(1-(1/(1.07) 10))] + (179,287 Establishments) x (0.2) x (60 Minutes/Establishment) x ($26.32/Hour) (Back to Text) Footnote (14) $209,034 = (-119,720 + 179,287 Establishments) x (8 Minutes/Establishment) x ($26.32/Hour) (Back to Text) Footnote (15) $11,984,233 = (1,186,698 + 179,287 Establishments) x (20 Minutes/Establishment) x ($26.32/Hour) (Back to Text) Footnote (16) The proposal would have replaced certification by the recordkeeper with certification by a plant manager. Many commenters stated that this would have required the plant to become personally familiar with the information being certified, and that this would have entailed considerably more time than 5 minutes (see, e.g., Exs. 15-9, 15-355, 15-428, 15-395). (Back to Text) Footnote (17) $20,604,232=(1,186,698 Establishments) x (-2 Minutes/ Establishment) x ($26.32/Hour) + (30 Minutes/Establishment) x ($36.48/Hour) (Back to Text) Footnote (18) $105,043=(119,720 Establishments) x (2 Minutes/ Establishment) x ($26.32/Hour) (Back to Text) Footnote (19) $3,270,213=(179,287 Establishments) x (30 Minutes/ Establishment) x ($36.28/Hour) (Back to Text) Footnote (20) $1,706,285=(1,365,985 Establishment) x (20 Minutes/ Establishment) x ($26.32/Hr.) x [0.07/(1-(1/(1.07)10))] (Back to Text) Footnote (21) $405,499 = ((49,698 Cases) x (15 Minutes/Case) + (8,946 Cases) x (20 Minutes/Case)) x ($26.32/Hours). (Back to Text) Footnote (22) $1,646,000 = ((197,904 Cases) x (15
Minutes/Case) + ($35.623 Cases) x (22 Minutes/Case)) x ($26.32/Hours). (Back
to Text) Footnote (23) $2,287,208 = (275,000 Cases) x (15 Minutes/Case)
x ($26.32/Hour) + (49,500 Cases) x (22 Minutes/Case)) x ($26.32/ Hour). (Back
to Text) Footnote (24) Under the simplified criteria of the final
rule, needlesticks and sharps cases are among the very easiest cases to
document and record. (Back to Text) Footnote (25) $1,971,664 = ((501,640 Cases) x (5
Minutes/Case) + (90,295 Cases) x (22 Minutes/Case)) x ($26.32/Hour). (Back to
Text) Footnote (26) $2,177,240 = (4,963,312 Cases) x (1
Minute/Case) x ($26.32/Hour). (Back to Text) Footnote (27) $2,279,080 = (2,597,736 Cases) x (2
Minutes/Case) x ($26.32/Hour). (Back to Text) Footnote (28) $388,329 = (88,525 Cases) x (10
Minutes/Case) x ($26.32/Hour). (Back to Text) Footnote (29) $843,524 = (640,976 Cases) x (3 Minutes/Case)
x ($26.32/Hour). (Back to Text) Footnote (30) $889,169 = (1,013,503 Cases) x (2
Minutes/Case) x ($26.32/Hour). (Back to Text) Footnote (31) $294,141 = (5,630,573 Cases) x (0.02) x [(5
Minutes/ Case) x ($26.32/Hour) + ($0.33/Case)]. (Back to Text) Footnote (32) $825,027 = (889,700 Cases x [(2
Minutes/Case) x ($26.32/Hour) + ($0.05/Case)]. (Back to Text) Footnote (33) This is a conservative estimate. The average
number of cases per covered establishment was only about 4 in 1998. Further,
some employers already provide copies of Form 301s to union representatives.
[Transcript, March 29, 1996, p. 14]. (Back to Text) Footnote (34) $612,860 = (273,197 Forms x [(5 Minutes x
($26.32/Hour) + $.05/Copy)]. (Back to Text) Footnote (35) Federal Register, January 26, 1989,
p. 3904. (Back to Text) Footnote (36) Nancy Lessin, Testimony on behalf of
Massachusetts Coalition for Occupational Safety and Health, May 3, 1996,
Transcript, p. 48. (Back to Text) Footnote (37) (0.005 to .01) x 5,828,477. (Back to Text) Footnote (38) It should be emphasized that a one percent
decrease in profits represents a one percent decrease in profits, not in
profit rate. (Back to Text) |