5916 Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations
DEPARTMENT OF LABOR Health Administration, U.S. Department Section 8(c)(1) of the Act also authorizes of Labor, Directorate of Safety Standards the Secretary of Labor to develop Occupational Safety and Health Programs, Room N–3609, 200 regulations requiring employers to keep Administration Constitution Ave., NW, Washington, DC and maintain records regarding the 20210. Telephone (202) 693–2222. causes and prevention of occupational 29 CFR Parts 1904 and 1952 SUPPLEMENTARY INFORMATION: injuries and illnesses. Section (2)(b)(12) [Docket No. R–02] of the Act states Congress’ findings with I. Table of Contents regard to achieving the goals of the Act RIN 1218–AB24 The following is a table of contents for this and specifically notes that appropriate preamble. The regulatory text and reporting procedures will help achieve Occupational Injury and Illness appendices follow the preamble. Documents the objectives of the Act. Recording and Reporting and testimony submitted to the docket Second, section 24(a) of the Act Requirements (Docket R–02) of this rulemaking are cited requires the Secretary to develop and throughout this preamble by the number that AGENCY: Occupational Safety and Health has been assigned to each such docket entry, maintain an effective program of Administration (OSHA), U.S. preceded by the abbreviation ‘‘Ex.,’’ for collection, compilation, and analysis of Department of Labor. exhibit. occupational safety and health statistics. This section also directs the Secretary to ACTION: Final rule. II. The Occupational Safety and Health Act and the Functions of the Recordkeeping ‘‘compile accurate statistics on work SUMMARY: The Occupational Safety and System injuries and illnesses which shall Health Administration (OSHA) is III. Overview of the Former OSHA include all disabling, serious, or revising its rule addressing the Recordkeeping System significant injuries and illnesses, recording and reporting of occupational IV. OSHA’s Reasons for Revising the whether or not involving loss of time injuries and illnesses (29 CFR parts Recordkeeping Rule from work, other than minor injuries 1904 and 1952), including the forms V. The Present Rulemaking requiring only first aid treatment and VI. Legal Authority which do not involve medical employers use to record those injuries VII. Summary and Explanation of the Final and illnesses. The revisions to the final treatment, loss of consciousness, Rule restriction of work or motion, or transfer rule will produce more useful injury A. Subpart A. Purpose and illness records, collect better B. Subpart B. Scope to another job.’’ information about the incidence of C. Subpart C. Recordkeeping Forms and After passage of the Act, OSHA issued occupational injuries and illnesses on a Recording Criteria the required occupational injury and national basis, promote improved D. Subpart D. Other OSHA Injury and Illness illness recording and reporting employee awareness and involvement Recordkeeping Requirements regulations as 29 CFR part 1904. Since in the recording and reporting of job- E. Subpart E. Reporting Fatality, Injury and 1971, OSHA and the Bureau of Labor Illness Information to the Government. related injuries and illnesses, simplify Statistics (BLS) have operated the injury F. Subpart F. Transition From the Former and illness recordkeeping system as a the injury and illness recordkeeping Rule system for employers, and permit cooperative effort. Under a G. Subpart G. Definitions Memorandum of Understanding dated increased use of computers and VIII. Forms July 11, 1990 (Ex. 6), BLS is now telecommunications technology for A. OSHA 300 responsible for conducting the OSHA recordkeeping purposes. B. OSHA 300 A This rulemaking completes a larger C. OSHA 301 nationwide statistical compilation of overall effort to revise Part 1904 of Title IX. State Plans occupational illnesses and injuries 29 of the Code of Federal Regulations. X. Final Economic Analysis (called the Annual Survey of Two sections of Part 1904 have already XI. Regulatory Flexibility Certification Occupational Injuries and Illnesses), XII. Environmental Impact Assessment while OSHA administers the regulatory been revised in earlier rulemakings. A XIII. Federalism rule titled Reporting fatalities and components of the recordkeeping XIV. Paperwork Reduction Act of 1995 system. multiple hospitalization incidents to XV. Authority OSHA, became effective May 2, 1994 Regulatory Text of 29 CFR Part 1904 and 29 Functions of the Recordkeeping System and has been incorporated into this final CFR Section 1952.4 This revision of the Agency’s rule as § 1904.39. A second rule entitled II. The Occupational Safety and Health recordkeeping rule is firmly rooted in Annual OSHA injury and illness survey Act and the Functions of the the statutory requirements of the OSH of ten or more employers became Recordkeeping System Act (see the Legal Authority section of effective on March 13, 1997 and has the preamble, below). OSHA’s reasons been incorporated into this final rule as Statutory Background for revising this regulation to better § 1904.41. The Occupational Safety and Health achieve the goals of the Act are The final rule being published today Act (the ‘‘OSH Act’’ or ‘‘Act’’) requires discussed in the following paragraphs. also revises 29 CFR 1952.4, Injury and the Secretary of Labor to adopt Occupational injury and illness Illness Recording and Reporting regulations pertaining to two areas of records have several distinct functions Requirements, which prescribes the recordkeeping. First, section 8(c)(2) of or uses. One use is to provide recordkeeping and reporting the Act requires the Secretary to issue information to employers whose requirements for States that have an regulations requiring employers to employees are being injured or made ill occupational safety and health program ‘‘maintain accurate records of, and to by hazards in their workplace. The approved by OSHA under § 18 of the make periodic reports on, work-related information in OSHA records makes Occupational Safety and Health Act (the deaths, injuries and illnesses other than employers more aware of the kinds of ‘‘Act’’ or ‘‘OSH Act’’). minor injuries requiring only first aid injuries and illnesses occurring in the DATES: This final rule becomes effective treatment and which do not involve workplace and the hazards that cause or January 1, 2002. medical treatment, loss of contribute to them. When employers FOR FURTHER INFORMATION CONTACT: Jim consciousness, restriction of work or analyze and review the information in Maddux, Occupational Safety and motion, or transfer to another job.’’ their records, they can identify and
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correct hazardous workplace conditions III. Overview of the Former OSHA related injuries or illnesses may (1) on their own. Injury and illness records Recordkeeping System occur at the employer’s premises, or (2) are also an essential tool to help The OSH Act authorizes OSHA to occur off the employer’s premises when employers manage their company safety require employers to keep records and the employee was engaged in a work and health programs effectively. to report the recorded information to activity or was present as a condition of Employees who have information OSHA. However, the Agency only employment. Certain limited exceptions about the occupational injuries and requires some employers to create and to this overriding geographic presumption were permitted by the illnesses occurring in their workplace maintain occupational injury and illness records. Those employers who are former rule. are also better informed about the Although the Act gives OSHA the required to keep records must report on hazards they face. They are therefore authority to require all employers those records only when the more likely to follow safe work practices covered by the OSH Act to keep records, government specifically asks for the and to report workplace hazards to their two major classes of employers are not employers. When employees are aware information, which occurs exclusively currently required regularly to keep of workplace hazards and participate in under limited circumstances that are records of the injuries and illnesses of the identification and control of those described below. their employees: employers with no Employers covered by the hazards, the overall level of safety and more than 10 employees at any time recordkeeping regulations must keep health in the workplace improves. during the previous calendar year, and records of the occupational injuries and The records required by the employers in certain industries in the illnesses that occur among their recordkeeping rule are also an important retail and service sectors. employees. To do so, covered employers source of information for OSHA. During Although the Act authorizes OSHA to must complete two forms. First, the the initial stages of an inspection, an require employers to submit reports on employer must maintain a summary OSHA representative reviews the injury any or all injuries and illnesses form (OSHA Form 200, commonly and illness data for the establishment as occurring to their employees, there are referred to as the ‘‘OSHA Log,’’ or an currently only three situations where an aid to focusing the inspection effort equivalent form) that lists each injury on the safety and health hazards OSHA requires an employer to report and illness that occurred in each occupational injury and illness records suggested by the injury and illness establishment during the year. For each records. OSHA also uses establishment- to the government. First, an employer case on the Log, the employer also must report to OSHA within eight hours specific injury and illness information prepares a supplementary record (OSHA to help target its intervention efforts on any case involving a work-related Form 101, or an equivalent), that fatality or the in-patient hospitalization the most dangerous worksites and the provides additional details about the worst safety and health hazards. Injury of three or more employees as the result injury or illness. Most employers use a of a work-related incident (former 29 and illness statistics help OSHA workers’ compensation First Report of identify the scope of occupational safety CFR 1904.8, final rule 1904.39). These Injury in place of the 101 form. The Log provisions were revised in 1994 to and health problems and decide is available to employees, former whether regulatory intervention, reduce the reporting time for these employees, and their representatives. A incidents from 48 hours to 8 hours and compliance assistance, or other Summary of the Log is posted in the measures are warranted. reduce the number of hospitalized workplace from February 1 to March 1 employees triggering a report from five Finally, the injury and illness records of the year following the year to which workers to three workers (59 FR 15594 required by the OSHA recordkeeping the records pertain. The Log and (April 1, 1994)). Changes made to this rule are the source of the BLS-generated summary, as well as the more detailed section in 1994 have largely been national statistics on workplace injuries supplementary record, are available to carried forward in the final rule being and illnesses, as well as on the source, OSHA inspectors who visit the published today. nature, and type of these injuries and establishment. Second, an employer who receives an illnesses. To obtain the data to develop The employer is only obligated to annual survey form from the Bureau of national statistics, the BLS and record work-related injuries and Labor Statistics must submit its annual participating State agencies conduct an illnesses that meet one or more of injury and illness data to the BLS. The annual survey of employers in almost certain recording criteria. In accordance BLS conducts an annual survey of all sectors of private industry. The BLS with the OSH Act, OSHA does not occupational injuries and illnesses makes the aggregate survey results require employers to record cases that under 29 CFR 1904.20–22 of the former available both for research purposes and only involve ‘‘minor’’ injuries or rule (1904.41 of the final rule). Using a for public information. The BLS has illnesses, i.e., do not involve death, loss stratified sample, the BLS sends survey published occupational safety and of consciousness, days away from work, forms to randomly selected employers, health statistics since 1971. These restriction of work or motion, transfer to including employers who, under Part statistics chart the magnitude and another job, medical treatment other 1904, would otherwise be exempt from nature of the occupational injury and than first aid, or diagnosis of a the duty to keep the OSHA Log and illness problem across the country. significant injury or illness by a Summary. These otherwise exempt Congress, OSHA, and safety and health physician or other licensed health care employers are required to keep an policy makers in Federal, State and professional. annual record of the injuries and local governments use the BLS statistics The language of the OSH Act also illnesses occurring among their to make decisions concerning safety and limits the recording requirements to employees that are recordable under health legislation, programs, and injuries or illnesses that are ‘‘work- Part 1904 if the BLS contacts them as standards. Employers and employees related.’’ The Act uses, but does not part of the annual survey. At the end of use them to compare their own injury define, this term. OSHA has interpreted the year, these employers must send the and illness experience with the the Act to mean that injuries and results of recordkeeping to the BLS. The performance of other establishments illnesses are work-related if events or BLS then tabulates the data and uses within their industry and in other exposures at work either caused or them to prepare national statistics on industries. contributed to the problem. Work- occupational injuries and illnesses. The
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BLS survey thus ensures that the injury More consistent records will improve The Need To Improve the Quality of the and illness experience of employers the quality of analyses comparing the Records otherwise exempted from the injury and illness experience of The quality of the records OSHA requirement to keep OSHA records— establishments and companies with requires employers to keep is of crucial such as employers with 10 or fewer industry and national averages and of importance for anyone who uses the employees in the previous year and analyses looking for trends over several resulting data. Problems with employers in certain Standard Industrial years. completeness, accuracy, or consistency Classification (SIC) codes—is reflected Another objective of the rulemaking can compromise the data and reduce the in the national statistics. In accordance has been to lessen the recordkeeping quality of the decisions made on the with its statistical confidentiality policy, burden on employers, reduce basis of those data. Several government the BLS does not make public the unnecessary paperwork, and enhance studies, as well as OSHA’s own identities of individual employers. the cost-effectiveness of the rule. The enforcement history, have revealed Finally, OSHA may require employers final rule achieves this objective in problems with employers’ injury and to send occupational injury and illness several ways. It updates the partially illness recordkeeping practices and with data directly to OSHA under a exempt industry list, reduces the the validity of the data based on those regulation issued in 1997. That section requirement to keep track of lengthy records. of this regulation is entitled Annual employee absences and work OSHA Injury and Illness Survey of Ten restrictions caused by work-related A study conducted by the National or More Employers. It allows OSHA or injuries and illnesses and, above all, Institute for Occupational Safety and the National Institute for Occupational greatly simplifies the forms, regulatory Health (NIOSH) between 1981 and 1983 Safety and Health (NIOSH) to collect requirements, and instructions to make revealed that 25 percent of the 4,185 data directly from employers. This the system easier for employers and employers surveyed did not keep OSHA section was published in the Federal employees to manage and use. injury and illness records at all, Register on February 11, 1997 (62 FR In this rulemaking, OSHA has also although they were required by 6434) and became effective on March addressed some of the objections regulation to do so (Ex. 15:407–P). 13, 1997. It has been included in this employers have raised in the years since A study of 192 employers in final rule as section 1904.41 without OSHA first implemented the injury and Massachusetts and Missouri conducted substantive change; however, this illness recordkeeping system. For by the BLS in 1987 reported that an section has been rewritten in plain example, the final rule includes a estimated 10 percent of covered language for consistency with the number of changes that will allow employers did not maintain OSHA remainder of Part 1904. employers to exclude certain cases, records at all, total injuries were eliminate the recording of minor illness underrecorded by approximately 10 IV. OSHA’s Reasons for Revising the cases, and allow employers maximum percent (even though both Recordkeeping Rule flexibility to use computer equipment to overrecording and underrecording were OSHA had several interrelated meet their OSHA recordkeeping discovered), lost workday injuries were reasons for revising its recordkeeping obligations. undercounted by 25 percent, and lost rule. The overarching goal of this OSHA is also complying with the workdays were undercounted by nearly rulemaking has been to improve the President’s Executive Memorandum on 25 percent. Approximately half of the quality of workplace injury and illness plain language (issued June 1, 1998) by uncounted lost workdays were days of records. The records have several writing the rule’s requirements in plain restricted work activity, and the other important purposes, and higher quality language and using the question-and- half were days away from work. Some records will better serve those purposes. answer format to speak directly to the of the underrecording was due to OSHA also believes that an improved user. OSHA believes that employers, employers entering lost time cases on recordkeeping system will raise employees and others who compile and their records as no-lost-time cases (Exs. employer awareness of workplace maintain OSHA records will find that 72–1, 72–2). hazards and help employers and the plain language of the final rule helps Through its inspections of employees use and analyze these compliance and understanding. workplaces, OSHA has also discovered records more effectively. In revising its Many of OSHA’s goals and objectives that some employers seriously recordkeeping rule, the Agency also in developing this final rule work underrecord injuries and illnesses. In hopes to reduce underreporting and to together and reinforce each other. For cases where the inspector has found remove obstacles to complete and example, writing the regulation in plain evidence that the employer willfully accurate reporting by employers and language makes the rule easier for understated the establishment’s injury employees. employers and employees to use and and illness experience, OSHA has A major goal of the revision has been improves the quality of the records by levied large penalties and fines under its to make the system simpler and easier reducing the number of errors caused by special citation policy for egregious to use and understand and to update the ambiguity. In some cases, however, one violations. OSHA has issued 48 data on which the system is based. For objective had to be balanced against egregious injury and illness example, OSHA has updated the list of another. For example, the enhanced recordkeeping citations since 1986 (Ex. partially exempt industries to reflect the certification requirements in the final 74). most recent data available. The rule will improve the quality of the As part of the OSHA Data Initiative revisions to the final rule will also records, but they also slightly increase (ODI), a survey allowing OSHA to create more consistent statistics from employer burden. Nevertheless, OSHA collect injury and illness data from employer to employer. Further, by is confident that the final rule generally employers to direct OSHA’s program providing more details about the system achieves the Agency’s goals and activities, the Agency conducts Part in the regulation itself and writing the objectives for this rulemaking and will 1904 records audits of 250 rule in plain language, fewer result in a substantially strengthened establishments each year. The following unintentional errors will be made and and simplified recordkeeping and table shows the results of the audits the records will be more consistent. reporting system. conducted to date.
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1996 THROUGH 1998 OSHA RECORDKEEPING AUDIT RESULTS *
Data reference year Error type (percent) 1996 1997 1998
Cases not entered on employers Log ...... 13.56 10.49 12.91 Lost workday cases recorded as non-lost workday cases ...... 8.39 6.53 6.21 Non-lost workday cases recorded as lost workday cases ...... (**) 2.10 1.94
Total major recording errors ...... 21.95 19.11 21.07
Total cases recorded without major errors ...... 78.05 80.89 78.93 * The results were tabulated using unweighted data and should not be used to draw broad conclusions about the recordkeeping universe. ** Data not calculated for 1996. Source: OSHA Data Initiative Collection Quality Control: Analysis of Audits on 1996–1998 Employer Injury and Illness Recordkeeping.
Explicit Rules Are Needed To Ensure premises’’ were work-related to cover The NRC Report Consistent Recording situations where the application of the In response to concern over the When OSHA’s recordkeeping geographic presumption was considered underreporting of occupational injuries regulation was first promulgated in inappropriate. Further, the Guidelines and illnesses and inconsistencies in the 1971, many industry safety experts were updated the lists that distinguished national data collected by the BLS, concerned that the regulations and the medical treatment from first aid and Congress appropriated funds in 1984 for instructions on the forms did not addressed new recordkeeping issues. the BLS to conduct a quality assurance provide adequate guidance for The BLS also published a shortened study of its Annual Survey of employers. They requested that the version of the Guidelines, entitled A Occupational Injuries and Illnesses. The Department of Labor provide additional Brief Guide to Recordkeeping BLS asked the National Research instructions on employers’ Requirements for Occupational Injuries Council (NRC) to convene an expert recordkeeping obligations and clarify and Illnesses (Ex. 7). panel to analyze the validity of several recordkeeping issues. The BLS Although the 1986 edition of the employer records and the BLS annual responded in 1972 by publishing Guidelines clarified many aspects of the survey, to address any problems related supplemental instructions to the recordkeeping regulation, concerns to determining and reporting recordkeeping forms, BLS Report 412, persisted about the quality and utility of occupational diseases, and to consider What Every Employer Needs To Know the injury and illness data. In response other issues related to the collection and About OSHA Recordkeeping (Ex. 1). to inquiries from employers, unions, use of data on health and safety in the These supplemental instructions were employees, BLS, and OSHA staff, the workplace. designed to help employers by Agency issued many letters of In 1987, NRC issued its report, providing detailed information on when interpretation. These letters restated the Counting Injuries and Illnesses in the and how to record injury and illness former rule’s regulatory requirements, Workplace: Proposals for a Better cases on the recordkeeping forms. The interpreted the rules as they applied to System (Ex. 4). The report contained 24 supplemental instructions clarified specific injury and illness cases, and specific recommendations (Ex. 4, Ch. 8). numerous aspects of the rule, including clarified the application of those In sum, the NRC panel recommended the important recordability criteria that requirements. A number of these letters that BLS take the following steps to outline which injuries and illnesses are of interpretation have been compiled improve the recordkeeping system: (1) work-related and thus recordable. This and entered into the docket of this Modify the BLS Annual Survey to BLS Report was revised and reissued in rulemaking (Ex. 70). OSHA has provide more information about the 1973, 1975, and 1978. incorporated many of the prior injuries and illnesses recorded; (2) In response to requests from labor and interpretations directly into the discontinue the Supplementary Data industry, and after publication in the implementation questions and answers System, replace it with a grant program Federal Register and a public comment in the regulatory text of the final rule, for States and individual researchers, period, the BLS 412 report series was so that all affected employers will be and develop criteria for the detail and replaced in April of 1986 by the aware of these provisions. quality of the data collected by the Recordkeeping Guidelines For replacement system; (3) conduct an Occupational Injuries And Illnesses (the External Critiques of the Former ongoing quality assurance program for Guidelines) (Ex. 2). The Guidelines Recordkeeping System the Annual Survey to identify contained an expanded question-and- Because of concern about the injury underreporting by comparing the answer format similar to that of the BLS and illness records and the statistics information on employers’ logs with 412 report and provided additional derived from them, several data from independent sources; (4) information on the legal basis for the organizations outside OSHA have implement a system of surveillance for requirements for recordkeeping under studied the recordkeeping system. The occupational disease, including the Part 1904. The Guidelines provided National Research Council (NRC), the collection of data on exposure to clearer definitions of the types of cases Keystone Center, and the General workplace hazards; (5) improve the to be recorded and discussed employer Accounting Office (GAO) each collection of national occupational recordkeeping obligations in greater published reports that evaluated the fatality data; (6) implement an detail. The Guidelines also introduced a recordkeeping system and made administrative data system that would number of exceptions to the general recommendations for improvements. allow OSHA to obtain individual geographic presumption that injuries OSHA has relied on these studies establishment data to conduct an and illnesses that occurred ‘‘on- extensively in developing this final rule. ‘‘effective program for the prevention of
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workplace injuries and illnesses * * *’’; The GAO report found that there was and recording violations, the Agency and (7) thoroughly evaluate ‘‘possibly significant injury and illness does cite and fine employers when it recordkeeping practices in individual underrecording and subsequent encounters serious or willful injury and establishments, using additional underreporting’’ (Ex. 3, p. 3). The GAO illness recordkeeping problems. resources requested from Congress for report gave three main reasons for The third component of OSHA’s that purpose to avoid diverting inaccurate recording and reporting: (1) overall plan is this revision of the injury resources from OSHA inspections of Employers intentionally underrecord and illness recordkeeping rule. The workplace hazards (Ex. 4, p. 10). injuries and illnesses in response to revised final rule will streamline the OSHA inspection policies or recordkeeping system by simplifying the The Keystone Report management safety competitions; (2) forms and the logic used to record an In 1987, The Keystone Center employers unintentionally underrecord individual case. It will also consolidate convened 46 representatives from labor injuries and illnesses because they do the instructions that were formerly unions, corporations, the health not understand the recording and contained in the rule itself, in the professions, government agencies, reporting system; and (3) employers Guidelines, and in many interpretative Congressional staff, and academia for a record injuries and illnesses letters and memoranda. In addition, the year-long dialogue to discuss inaccurately because they do not place final rule will improve the quality of the occupational injury and illness a high priority on recordkeeping and do injury and illness records by changing recordkeeping. Two years later, not supervise their recordkeepers several requirements to ensure that data Keystone issued its final report, properly. The GAO report noted that are entered correctly. OSHA has Keystone National Policy Dialogue on OSHA’s revised enforcement simplified and streamlined the Work-related Illness and Injury procedures, which included increasing recordkeeping forms and processes to Recordkeeping, 1989 (Ex. 5). The report its fines for recordkeeping violations reduce errors. Other changes include: focused on four major topics: (1) and modifying its records-review (1) Simplifying and clarifying the Recordkeeping criteria; (2) OSHA procedures, would likely help to definitions of terms such as ‘‘medical enforcement procedures; (3) injury and improve the accuracy of recordkeeping. treatment,’’ ‘‘first aid,’’ and ‘‘restricted illness data systems; and (4) The GAO recommended that the work’’ to reduce recording errors; (2) occupational illnesses. The Keystone Department of Labor study the accuracy providing specific recordkeeping report recommended that: (1) OSHA and of employers’ records using guidance for specific types of injuries and illnesses; (3) including a detailed the BLS should revise various aspects of independent data sources, evaluate how discussion of the process of determining the recording criteria; (2) OSHA should well employers understand the revised whether an injury or illness is work- use injury and illness data to target Guidelines, and audit employers’ related; (4) giving employees greater enforcement efforts; (3) the BLS should records in selected enforcement involvement by improving their access revise the Guidelines to make them activities. to records and providing a longer easily and uniformly understood; (4) the OSHA’s Strategy for Improving the posting period for the annual summary; BLS should develop a national system Quality of Records (5) requiring higher level management to collect and disseminate occupational OSHA has developed a four-part officials to certify the records; (6) adding injury and illness information; and (5) strategy to improve the quality of the a falsification/penalty statement to the OSHA and the BLS should broaden the injury and illness records maintained by Summary; (7) adding a disclaimer to the type of information collected employers. The first component is to Log to clarify that an employer who concerning occupational illness and provide information, outreach and records an injury or illness is not make the information available to training to employers to make them admitting fault, negligence or liability employees and government agencies for more aware of the recordkeeping for workers’ compensation or insurance appropriate purposes such as research requirements, thereby improving their purposes; and (8) requiring the and study. compliance with these requirements. employer to establish a process for The General Accounting Office (GAO) For example, information on injury and employees to report injuries and Study illness recordkeeping is included in illnesses and to tell employees about it, many of OSHA’s publications and and explicitly prohibiting the employer An August 1990 report by the GAO, pamphlets, on the OSHA CD–ROM, and from discriminating against employees Options for Improving Safety and on OSHA’s Internet site. OSHA who report injuries and illnesses. Health in the Workplace (Ex. 3), personnel answer thousands of discussed the importance of employer recordkeeping questions each year in V. The Present Rulemaking injury and illness records. The GAO response to phone calls and letters. In 1995, the Keystone Center noted that these records have several OSHA also trains employers at the reassembled a group of business, labor, major uses. They help employers, OSHA Training Institute in and government representatives to employees and others understand the recordkeeping procedures and provides discuss draft proposed changes to the nature and extent of occupational safety speakers on this topic for numerous recordkeeping rule. OSHA shared its and health problems. They help safety and health events. draft proposed revision of the rule with employers and employees identify The second component is improved the participants and the public. The safety and health problems in their enforcement of the recordkeeping draft was also reprinted in several workplaces so that they can correct the requirements. OSHA continues to national safety and health publications. problems. They also enable OSHA to review employer records during many Written comments generated by the on- conduct research, evaluate programs, of its workplace inspections. OSHA also going dialogue were used to help allocate resources, and set and enforce audits the records of some employers develop the proposal and the final rule, standards. The report focused on the use who submit data to OSHA under former and they are in the rulemaking record of the records in OSHA enforcement, section 1904.17 (recodified as section (Ex. 12). particularly in targeting industries and 1904.41 Requests from OSHA for Data OSHA consulted with the Advisory worksites for inspections and in the final rule). Although OSHA does Committee on Construction Safety and determining the scope of inspections. not issue citations for minor reporting Health (ACCSH) before issuing the
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proposed rule. ACCSH made specific Summary, which will replace the former construction employers to maintain recommendations to OSHA for OSHA Form 200, Log and Summary of ‘‘site logs,’’ or comprehensive injury and improving the recordkeeping system as Occupational Injuries and Illnesses; and illness records, for major construction it applied to the construction industry. (B) OSHA Form 301, OSHA Injury projects. The Keystone report noted that OSHA gave the ACCSH and Illness Incident Record, which will construction sites are normally recommendations careful consideration replace the former OSHA Form 101, composed of multiple contractors and and responded by modifying the Supplementary Record of Occupational subcontractors, each of whom may be proposal in several areas. The ACCSH Injuries and Illnesses. present at the site for a relatively short recommendations, OSHA’s written (4) The following BLS/OSHA period of time, and that no records of briefing, and the relevant portions of the publications will be withdrawn: the safety and health experience of the transcripts of the October and December (A) Recordkeeping Guidelines for site are readily available, either to 1994 ACCSH meetings are also part of Occupational Injuries and Illnesses, OSHA or to employers and employees. the public record (Ex. 10). 1986; and In an attempt to address this problem, OSHA published a Notice of Proposed (B) A Brief Guide to Recordkeeping the proposed provision would have Rulemaking (NPRM) on February 2, Requirements for Occupational Injuries required site-controlling employers in 1996 (61 FR 23), giving formal notice and Illnesses, 1986. the construction industry to maintain a that the Agency proposed to revise the (5) All letters of interpretation separate record reflecting the overall injury and illness recording and regarding the former rule’s injury and injury and illness experience of reporting regulations, forms, and illness recordkeeping requirements will employees working for sub-contract supplemental instructions (Ex. 14). The be withdrawn and removed from the construction firms for any construction proposed rule reflected a number of OSHA CD–ROM and the OSHA Internet site having an initial construction suggestions made by the Keystone site. contract value exceeding $1,000,000. participants and ACCSH. Provisions Not Carried Forward From The site-controlling employer would The NPRM invited all interested the Proposal thus have been required to record the parties to submit comments on the injuries and illnesses of subcontractor proposal to the docket by May 2, 1996. Two proposed regulatory sections in employees who were employed by In response to requests from members of OSHA’s 1996 Notice of Proposed construction employers with 11 or more the public, OSHA held two public Rulemaking (NPRM) have not been employees working at the site at any meetings during the comment period carried forward in this rulemaking. time during the previous calendar year. and extended the comment period to They are: (1) Falsification of, or failure Many commenters strongly favored July 1, 1996. to keep records or provide reports the addition of a construction site log OSHA received 449 written comments (Proposed section 1904.16), and (2) provision to the final rule (see, e.g., Exs. in response to the NPRM and compiled Subcontractor records for major 20; 29; 35; 36; 45; 15: 48, 110, 113, 129, 1200 pages of transcripts from 60 construction projects (Proposed section 136, 137, 141, 181, 224, 266, 278, 310, presentations made at the public 1904.17). 350, 359, 369, 375, 394, 407, 413, 415, meeting. Comments and testimony were Paragraphs (a) and (b) of proposed 418, 425, 438, 440). Several of these received from a broad range of section 1904.16, ‘‘Falsification of, or commenters urged OSHA to expand this interested parties, including failure to keep records or provide ‘‘multi-employer’’ log concept to corporations, small business entities, reports,’’ were included in the proposal employers in other industries (see, e.g., trade associations, unions, state and because they had been included in the Exs. 35; 15: 48, 113, 129, 369, 415, 418, local governments, professional former rule. The proposed section 438). For example, the AFL–CIO (Ex. 15: associations, citizens groups, and safety included a provision stating that 418) encouraged OSHA to ‘‘[e]xpand and health organizations. OSHA has employers may be subject to criminal this recommendation to all industries. carefully reviewed all of the comments fines under section 17(g) of the Act for As the Agency is well aware, safety and and testimony in its preparation of the falsifying injury and illness logs and health problems related to multi- final rule. may be cited and fined under sections employer worksites and contract work As described in greater detail below, 9, 10, and 17 of the Act for failure to are a major concern in many industries the final rule revises OSHA’s regulation comply with the recordkeeping rule. beyond construction. Many of the major for the recording and reporting of work- Several commenters favored retention of chemical explosions and fatalities at related deaths, injuries and illnesses. this proposed provision in the final rule steel mills, power plants and paper The rule is part of a comprehensive because, in their view, OSHA needs mills have been related to contract revision of the OSHA injury and illness strong enforcement of the recordkeeping work. With more and more businesses recordkeeping system. rule to make sure that employers keep contracting out services for on-site The final rule becomes effective, on accurate records (see, e.g., Exs. 15: 11, activities, the safety and health concern January 1, 2002. At that time, the 289). Others, however, objected to the associated with these practices is following recordkeeping actions will proposed provision (see, e.g., Exs. 15: growing.’’ occur: 22, 335, 375). The views of this latter Other commenters argued that the (1) 29 CFR Part 1904, entitled group were reflected in a comment from proposed site log provisions should be Recording and Reporting Occupational the American Petroleum Institute (Ex. expanded to include injuries and Injuries and Illnesses, will be in effect. 15: 375), which urged OSHA to delete illnesses to construction employees (2) The State plan provisions in 29 this section from the rule in its entirety working for employers who would CFR Part 1952, Section 1952.4, entitled because nothing like it is found in any otherwise be exempt from OSHA Injury and Illness Recording and other OSHA regulation or standard. In recordkeeping requirements because Reporting Requirements will be in the final rule, OSHA has decided that they employ fewer than 11 workers (see, effect. this section is not needed to enforce the e.g., Exs. 20; 15: 350, 359, 369, 407, (3) Three new recordkeeping forms final rule, and when need be, to issue 425). Two of these commenters will come into use: citations and levy penalties. recommended adding a requirement to (A) OSHA Form 300, OSHA Injury The Keystone report recommended, the final rule requiring the site- and Illness Log, and OSHA Form 300 A and OSHA proposed, to require controlling employer to assist smaller
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employers with their records (Exs. 15: attentions upon the risks and hazards that are would appear to be trying to switch total 350, 359). encountered across the worksite. By responsibility to the site controlling Several commenters recommended concretely illustrating that hazards are employer for that record keeping purpose adding provisions to the final rule that everyone’s problems, the site log will prompt and taking the responsibility off the would provide greater access to the employers and employees to minimize those subcontractor with whom the responsibility hazards and to maximize site safety and should lie. It is, we feel, unfairly construction site log by employees (see, health. discriminatory against the site-controlling e.g., Exs. 15: 129, 310, 394) and by other Third, owners will benefit from site logs. employer in this case and we are strongly employers (see, e.g., Ex. 15: 310). Others Today, many owners are selecting contractors opposed to the wording of this proposal. recommended that OSHA include in the on the basis of the contractors’ rates for lost Even the alternative proposal in this section final rule a requirement for the site- work days and total recordables. In many places the ultimate responsibility upon the controlling employer to collect the cases, these rates are a poor measure for the project owner for collection of accident and number of hours worked by each owner’s purpose. An owner’s typical concern illness information and send it to OSHA. subcontractor to make it easier to is with how well a general contractor Again we are strongly opposed to the manages safety and health on the entire site, wording of this proposal because it takes the calculate each subcontractor’s injury not with how many injuries and illnesses responsibility for record keeping off the sub- and illness rates (see, e.g., Exs. 15: 310, occurred within that contractor’s own contractor and places the ultimate 369, 394), and some commenters workforce. Site logs can be used to measure responsibility on the project owner, a recommended that the final rule contain the management performance of the general responsibility that we feel belongs to the sub- a requirement for subcontractors to contractor, and will greatly assist the owners contractor irregardless of their size. report work-related injuries and in their quest for construction safety. Finally, OSHA will find the site logs to be Brown & Root, Inc. (Ex. 15: 423) illnesses to the site-controlling added ‘‘A site controlling employer employer (see, e.g., Exs. 15: 359, 369, enormously useful in its efforts to become a ‘‘data-driven’’ agency. First, a project-centric cannot be held responsible for 440). focus will allow OSHA to focus its determining which injuries and The Building and Construction Trades enforcement and consultation resources. Site illnesses of a subcontractor’s employees Department (BCTD), AFL–CIO logs will be useful to OSHA in scheduling are recordable. A contractor cannot discussed many of these issues while inspections during the phases of construction become involved in the medical records commenting in favor of site logs: which appear, through this data, to present of employees who do not work for him On the project level, the fragmentation of the most risks, and in focusing its inspections at construction sites, since the recent illness or her. The subcontractor employer has employers on construction sites makes it to be held accountable and responsible impossible to assess fully safety and health and injury history of the entire site can be assayed by examining a single document. By for his own employees, this on a particular project. Since the origins of responsibility cannot be delegated to OSHA, injury and illness recordkeeping has the same token, the information revealed by been the responsibility of each individual the logs will assist OSHA in reaching out to another contractor. The number of employer. Nevertheless, the hazards of employers to provide consultative services. employees or the value of the construction activity are shared by Site specific data will also aid OSHA in construction project is irrelevant.’’ employees across the site, and are not developing safety and health standards that Some of the commenters who specific to a single employer. Employees are are appropriately tailored to the risks and generally opposed this provision agreed often injured or made ill by circumstances hazards of specific types of construction. that site-specific data would be useful if that are not under their own employer’s full The BCTD is convinced that private actors will use site logs to improve safety and it could be collected by a method that control. The balkanization of recordkeeping allowed each employer to keep its own contributes to the failure of full and complete health performance. If OSHA establishes a communication in construction. requirement that site logs be kept, the private records (see, e.g., Exs. 15: 9, 116, 195, What is needed, at a national and the marketplace will use this new tool to the 260, 262, 265, 304, 364, 401). Other project level, is a way to record and count the betterment of employee safety and health (Ex. commenters pointed out that there injuries and illnesses that occur on specific 15: 394). would be problems in getting accurate projects. We need to know about illnesses Other commenters opposed the data from subcontractors (see, e.g., Exs. and injuries that are associated with distinct addition of a site log provision to the 15: 242, 263, 269, 270, 310, 314, 377, types of construction activity, with the final rule (see, e.g., Exs. 43; 51; 15: 9, 17, 395, 397, 406) or suggested that the site- various phases of construction, and with the controlling employer should not be held methods, materials, and hazards that are 21, 38, 40, 43, 61, 67, 74, 77, 97, 111, common to those types of work. Furthermore, 116, 119, 121, 126, 151, 155, 163, 170, responsible for the quality of the records we need to develop a measure of injury and 194, 195, 204, 213, 235, 242, 256, 260, received from subcontractors (see, e.g., illness that spans employers, to get a picture 262, 263, 265, 269, 270, 281, 294, 298, Exs. 33; 15: 176, 195, 231, 273, 294, 301, of the aggregate outcomes affecting all actors 304, 305, 312, 314, 341, 342, 351, 356, 305, 312, 351). on a common site. Only with such a tool can 364, 377, 389, 395, 397, 401, 406, 412, The Alabama Branch of the the construction industry establish and meet 423, 433, 437, 443, 441). The most Associated General Contractors of performance benchmarks for safety and common argument presented by these America, Inc. (AGC) cited difficulties health. commenters was that records should associated with other regulatory Site logs would be useful to all of the requirements that could result from the actors in the occupational safety and health only be kept by the employer, and that arena. First, employers would benefit from one employer should not keep records proposed OSHA site log requirement: the collection of this data. General for another employer’s employees (see, This could place an undue hardship on the contractors increasingly use safety and health e.g., Exs. 15: 9, 116, 126, 163, 195, 204, site controlling employer far beyond his information in selecting their subcontractors, 260, 262, 265, 281, 294, 304, 312, 314, ability to appoint and manage independent and in evaluating projects. Site logs will give 341, 342, 351, 364, 389, 395, 396, 397, contractors and subcontractors without there them a new tool for both self-evaluation and 401, 406, 423, 433). The Jewell Coal and being other entangling both federal and state the evaluation of other contractors. Similarly, obligations, which would lead to the subcontractors are often ignorant of the safety Coke Company (Ex. 15: 281) stated that: subcontractor’s employees being declared and health performance of other contractors [t]he sub-contractor should be responsible for employees of the controlling contractor. and the general contractor. Site logs will lead keeping up with their own employee injury/ Many states use the common law to make a to better information for all contractors on illness records as they are the ultimate determination of the employer/employee the project. responsible party for their own employees relationship, as well as the Internal Revenue Second, employees will benefit from site under worker’s compensation regulations Service. This employee/employer logs. The site log will focus employers’ and in all other legal issues. This proposal relationship under the common law usually
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says if a controlling contractor exercises any with more than 11 employees (see, e.g., The Use of Alternative Data Sources control as to time, place, method or result of Exs. 15: 170, 213, 405). Some a person’s work that they are in fact defacto Several commenters suggested that commenters urged the Agency not to the Agency use data from existing data employees of the controlling contractor, for expand the site log concept beyond the social security purposes and other state sources, such as state workers’ purposes. Therefore, I think it is shallow construction industry (see, e.g., Exs. 33; compensation agencies, insurance thinking to believe that the general contractor 15: 176, 231, 273, 301, 397). Finally, companies, hospitals, or OSHA with 100 subcontractors should have all several commenters urged OSHA to inspection files, instead of requiring 5,500 employees under their control and make any site log provision in the final separate data for OSHA recordkeeping avoid other legal entanglements, without the rule compatible with the corresponding purposes (see, e.g., Exs. 15: 2, 28, 58, 63, ability to actually control the subcontractor. provisions of the Process Safety 97, 184, 195, 289, 327, 341, 374, 444). The National Federation of Management Standard (29 CFR For example, Alex F. Gimble observed: Independent Business (NFIB) expressed 1910.119), especially if the site log Since similar data are readily available concern about the proposed site log requirement in the recordkeeping rule from other sources, such as the National provision as it would relate to OSHA’s was expanded beyond construction (see, Safety Council, insurance carriers, etc., why multi-employer citation policy (Ex. 15: e.g., Exs. 33; 15: 159, 176, 231, 273, 301, not use these statistics, rather than go 304), and the Small Business 335). through this duplication of effort at taxpayer Administration (Exs. 51: 67, 437) argued expense? Another approach would be to Based on a thorough review of the utilize data collected by OSHA and State that the proposed requirement would comments received, OSHA has decided require competing employers to share Plan compliance officers during site visits not to include provisions in the final over the past 25 years (Ex. 15: 28). sensitive business information. that require the site-controlling A number of commenters objected to Several commenters suggested that employer to keep a site log for all the requirement because of the OSHA use injury and illness data from recordable injuries and illnesses additional burden it would place on the workers’ compensation systems in occurring among employees on the site. employers (see, e.g., Exs. 51; 15: 40, 43, lieu of employer records. The comments OSHA has made this decision for 67, 77, 97, 119, 121, 163, 194, 204, 235, of the American Health Care several reasons. First, such a provision 242, 256, 263, 269, 270, 294, 298, 304, Association (AHCA) are representative would not truly capture the site’s injury 312, 314, 356, 377, 389, 395, 397, 406, of the views of these commenters: 412, 437, 441), arguing that the and illness experience because many subcontractors employ 10 or fewer AHCA encourages OSHA to consider the proposed requirement would result in use of workers’ compensation data in lieu of duplication (see, e.g., Exs. 51; 15: 9, 38, employees and are therefore exempt proposed OSHA 300 and 301 forms. Pursuing 67, 77, 119, 155, 204, 304, 312, 351, 356, from keeping an OSHA Log. To require the enactment of legislation that would allow 364, 377, 395, 397, 437). For example, these very small employers to keep OSHA access to every state’s workers’ the American Iron and Steel Institute records under Part 1904 for the periods compensation data would eliminate the need of time they worked on a construction for employers to maintain two sets of records, (Ex. 15: 395) stated that the proposed provide OSHA with necessary safety and requirement would place a ‘‘near site meeting the dollar threshold for this provision would be a new health data, and ease administrative and cost impossible burden on the ‘site burdens now associated with recordkeeping controlling employer’’’ to determine the recordkeeping burden. This would for employers in every industry across the size of each subcontractor to decide create considerable complexity for these country (Ex. 15: 341). employers and for the site-controlling which subcontractors would be required Ms. Diantha M. Goo recommended to keep records. employer. Second, under the Data Initiative (section 1904.41 of the final the use of injury and illness data A number of commenters also obtained from treatment facilities rather rule), OSHA now has a means of questioned the value of the statistical than the OSHA records: data that would be produced by a site targeting data requests for records of the log requirement (see, e.g., Exs. 51; 15: safety and health experience of The accuracy and usefulness of OSHA’s reporting system would be vastly improved 61, 62, 67, 74, 77, 97, 121, 151, 194, 312, categories of employers and can therefore obtain the data it needs to if it were to shift responsibility from 314, 351, 389, 395, 433, 437, 433), and employers (who have a vested interest in several participants were concerned that establish inspection priorities in a less concealment) to the emergency rooms of the records would not be useful for administratively complex and less hospitals and clinics. Hospitals are accident prevention purposes (see, e.g., burdensome way when the Agency accustomed to reporting requirements, use Exs. 15: 121, 151, 312, 351, 389, 433) . needs such data. Third, OSHA was the correct terminology in describing the OSHA received many comments concerned with the utility of the data accident and its subsequent treatment and addressing miscellaneous points related that would have been collected under are computerized (Ex. 15: 327). to the proposed construction site log the proposed site log approach, because In response to these comments, OSHA requirement. For example, some of the time lag between collection of the notes that the injury and illness commenters suggested limiting the data and its use in selecting employers information compiled pursuant to Part scope of the project records required to for inspections or other interventions. In 1904 is much more reliable, consistent be maintained (see, e.g., Exs. 15: 17, 21, many cases work at the site would be and comprehensive than data from any 111, 116, 213, 155), while others argued complete before the data was collected available alternative data source, that the proposed dollar threshold ($1 and analyzed. Finally, a site log including those recommended by million) for a covered construction requirement is not necessary to enable commenters. This is the case because, project was too low and should be general contractors to compare the although some State workers’ raised (see, e.g., Exs. 15: 17, 111, 116, safety records of potential compensation programs voluntarily 441). Others suggested that the site log subcontractors since they can require provide injury and illness data to OSHA requirement should be triggered by the such information as a condition of their for various purposes, others do not. time duration of the project (Ex. 15: contractual arrangements without Further, workers’ compensation data 116); the number of construction OSHA requirements. For these reasons, vary widely from state to state. Differing workers at the site (Ex. 15: 111); or the final rule does not contain a site log state workers’ compensation laws and include only construction employers provision. administrative systems have resulted in
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large variations in the content, format, General Issues Raised by Commenters OSHA add requirements for the training accessibility, and computerization of In addition to the issues discussed of the individual who maintains the that system’s data. In addition, workers’ above, three issues concerning 1904 records for the employer, stating compensation databases often do not recordkeeping warrant discussion: that: include injury and illness data from analysis of the data, training and [a]nother important issue relates to the employers who elect to self-insure. qualifications of recordkeepers, and qualifications and responsibilities of the Additionally, most workers’ recordkeeping software. individual filling out the 300 log and Form compensation databases do not include 301. Most workplaces generally have a non- information on the number of workers Analysis of the Data safety and health professional entering this employed or the number of hours information in the 300 log after the decision During OSHA’s public meetings, Eric of a recordable injury or illness has been worked by employees, which means Frumin of the Union of Needletrades, that injury and illness incidence rates made. In our view it is important that these Industrial and Textile Employees, AFL– individuals have proper training about the cannot be computed from the data. CIO (UNITE) urged OSHA to include a recordkeeping rule and the employer’s Workers’ compensation data are also requirement for employers to analyze recordkeeping system. In order to assure the based on insurance accounts (i.e., filed the OSHA 1904 data in depth to most accurate and complete recording of claims), and not on the safety and health discover patterns and trends of work-related injuries and illnesses, we experience of individual workplaces. As occupational injury and illness, stating encourage the Agency to consider developing guidelines for the qualifications and training a result, an individual account often that: reflects the experience of several of these individuals (Ex. 15: 418). corporate workplaces involved in [y]ou’re telling the employers to evaluate OSHA has not included a training differing business activities. Finally, as information that’s coming to them, and I say that to stress the point that’s a very logical, requirement for the person entering the discussed below in the Legal Authority common sense requirement and you’re not information on the Part 1904 records in section of the preamble, the OSH Act generally speaking asking them to do that this final rule. The Agency believes that specifically sets out the recordability once they compile a log. You stop short of the Section 1904.32 provisions of the criteria that must be included in the asking employers to evaluate the log in toto, final rule calling for annual review of OSHA recordkeeping system envisioned to look for the kinds of trends and the records and certification of the by the Congress when the Act was comparisons and so forth that we’ve been annual summary by a company passed. The Congress intended that all discussing here. I think it’s important for executive will ensure that employers non-minor work-related injuries and OSHA to consider some—making such a assign qualified personnel to maintain requirement, particularly in light of a fairly illnesses be captured by the OSHA consistent pattern of testimony in this the records and to see that they are recordkeeping system, both so that proceeding, wherein employers now do not trained in that task. Further, because individual establishments could analyze what’s on the log in much depth. OSHA did not include training evaluate their injury and illness * * * But what has emerged at the end of the requirements in its 1996 proposal, the experience and so that national statistics day is not a whole lot of use of the Agency has not gathered sufficient accurately reflecting the magnitude of information on the log for—in terms of information in the rulemaking docket the problem of occupational injury and analyzing it for trends and various about whether specific training illness would be available. associations or conclusions about how to provisions would have utility, as well as Although OSHA disagrees that any of protect people, how to stop the injuries and the appropriate qualifications and illness (Ex. 58X, pp. 372—375). the alternate sources of data are training levels that would assist in satisfactory substitutes for the In the final rule, OSHA has not writing such provisions at this time. information gathered under Part 1904, included any requirement for employers As part of its outreach and training the Agency recognizes that data from to analyze the data to identify patterns program accompanying this rule, OSHA these sources have value. To the extent or trends of occupational injury and will be providing speeches and that information from workers’ illness. OSHA agrees with Mr. Frumin seminars for employers to help them compensation programs, the BLS that analysis of the data is a logical train their recordkeeping staff. OSHA statistics, insurance companies, trade outgrowth of maintaining records. will also be producing materials associations, etc., are available and Employers and employees can use such employers can use to help train their appropriate for OSHA’s purposes, analyses to identify patterns and trends recordkeeping staff, including free OSHA intends to continue to use them in occupational injuries and illnesses, software employers can use to keep to supplement its own data systems and and use that information to correct records, training programs, to assess the quality of its own data. safety and health problems in the presentations, course outlines, and a However, consistent with the workplace. OSHA encourages both training video. All of these materials Congressional mandate of the OSH Act, employers and employees to use the will be available through OSHA’s OSHA must continue to maintain its data for these purposes. However, a Internet home page at www.osha.gov. own recordkeeping system and to gather requirement of this type would go data for this system through recording beyond the scope of the recording and OSHA-Produced Recordkeeping and reporting requirements applicable reporting rule, which simply requires Software to covered employers. employers to keep records of work- In its proposal (61 FR 4048), OSHA related injuries and illnesses, and report asked the public to comment on Section 1952.4 Injury and Illness the data under certain circumstances. whether or not OSHA should develop Recording and Reporting Requirements OSHA believes that requirements of this computer software to make injury and The requirements of 29 CFR 1952.4 type are better addressed through an illness recordkeeping easier for describe the duties of State-Plan states OSHA standard, rather than the 1904 employers, and discussed the features to implement the 29 CFR 1904 recordkeeping regulation. that would be desirable for such regulations. These requirements are software. Those features were: discussed in Section IX of the preamble, Training of Recordkeepers —decision-making logic for State Plans, and in the preamble The American Federation of Labor determining if an injury or illness is discussion for section 1904.37, State and Congress of Industrial recordable; recordkeeping regulations. Organizations (AFL–CIO) suggested that —automatic form(s) generation;
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—the ability to assist the employer in amongst all users, which is currently required OSHA recordkeeping, and evaluating the entered data through lacking’’ (Ex. 15: 347). The Muscatine others have taken advantage of several preset analytical tools (e.g., Iowa Chamber of Commerce Safety commercially available programs. We tables, charts, etc.); and Committee (Ex. 15: 87) added that: see no need for OSHA to enter this —computer based training tools to ‘‘[e]very feature identified as a minimum market’’ (Ex. 15: 378). assist employers in training employees requirement would be a great benefit to OSHA has decided that the Agency in proper recordkeeping procedures. employers attempting to comply with the will produce software for employers to OSHA also suggested that any such OSHA recordkeeping requirements. Prompts use for keeping their OSHA 1904 software should be in the public domain which would in any way aid in the records. There is obviously a need for and/or be available at cost to the public determination of recordability would be the Agency to provide outreach and and asked the following questions: What appreciated by any person without a great assistance materials for employers, percentage of employers have deal of experience in filing OSHA reports. particularly small employers, to help computers to assist them in their We feel these features are especially important now with the changes in forms and them meet their obligations in the least business? What percentage of employers information to be collected.’’ burdensome way possible, and software currently use computers for tracking will clearly help achieve this goal. In employee-related information (payroll, Several of the commenters who urged addition, computer software will timekeeping, etc.)? Should the OSHA to provide computer software improve the consistency of the records distribution be through the Government, tempered their support by asking that kept by employers, and will assist them public domain share-ware distribution, the use of such software should be with analysis of the data. At this time, or other channels? Should OSHA optional and not mandatory (see, e.g., OSHA has not developed the software develop the software or only provide Exs. 15: 60, 109, 154, 198, 225, 247, 272, or its specifications, but will make every specifications for its requirements? 303, 394), and several other commenters effort to produce and distribute software Several commenters said that most recommended that OSHA provide both to assist employers by the time this final business establishments had computers software and specifications so rule becomes effective. Use of the OSHA (see, e.g., Exs. 15: 9, 95, 163, 281, 288, employers could use the OSHA product produced software will be optional; 375). The American Health Care to build their own data systems (see, employers are not required to use this Association (AHCA) estimated that 50% e.g., Exs. 15: 170, 247, 283). software and may keep records using A number of commenters told OSHA to 70% of their members used paper systems. Employers are also free computers (Ex. 15: 341), and Raytheon that the Agency should not produce to produce their own software, or to Constructors, Inc. estimated that 60% of software to help employers with their purchase software. employers are using computers. OSHA 1904 recordkeeping obligations (see, agrees that computers are available in e.g., Exs. 15: 78, 82, 85, 156, 163, 324, VI. Legal Authority most businesses, although certainly not 348, 359, 363, 374, 375, 378, 402, 414). A. The Final Recordkeeping Rule Is a all of them. The agency also notes that Several of these commenters suggested Regulation Authorized by Sections 8 these comments were made in 1996, and OSHA produce software performance and 24 of the Act that businesses’ computer usage has specifications for the industry (see, e.g., The Occupational Safety and Health grown since that time. Exs. 15: 156, 163, 357, 387). The A number of commenters urged commenters had various reasons for Act authorizes the Secretary to issue OSHA to produce and distribute opposing the production of software. two types of final rules, ‘‘standards’’ and software to help employers keep the Several stated that each employer wants ‘‘regulations.’’ Occupational safety and Part 1904 records (see, e.g., Exs. 35; 36; different data in its own unique form health standards, issued pursuant to 51; 15: 9, 26, 32, 34, 67, 68, 76, 87, 95, (see, e.g., Exs. 15: 78, 85, 375, 414). For section 6 of the Act, specify the 105, 109, 111, 129, 154, 157, 170, 181, example, the Central Vermont Public measures to be taken to remedy known 182, 197, 225, 235, 239, 247, 272, 277, Service Corporation (Ex. 15: 85) stated occupational hazards. 29 U.S.C. 652(8), 281, 283, 288, 303, 313, 327, 341, 347, that ‘‘[b]usinesses using safety related 655. Regulations, issued pursuant to 350, 352, 353, 356, 394, 405, 406, 409, software use programs that can perform general rulemaking authority found, 418, 426, 437, 438). The commenters OSHA recordkeeping and workers’ inter alia, in section 8 of the Act, are the gave various reasons for favoring the compensation functions in one package. means to effectuate other statutory provision of OSHA-provided software, It is unlikely that software developed by purposes, including the collection and including reducing the burden and cost OSHA will perform workers’ dissemination of records on of the rule for employers (see, e.g., Exs. compensation functions and therefore it occupational injuries and illnesses. 29 15: 87, 95, 111, 170, 182, 197, 350), will not be well received or utilized by U.S.C. 657(c)(2). saving businesses programming costs business.’’ Other commenters stated that OSHA is issuing this final (Ex. 15: 277), helping small businesses OSHA should focus elsewhere, that the recordkeeping rule as a regulation (Ex. 51; 15: 67), resulting in more private sector could produce software pursuant to the authority expressly uniform data (see, e.g., Exs. 36; 15: 32, more economically (see, e.g., Exs. 15: granted by sections 8 and 24 of the 153, 170, 181, 347, 409, 418), and 357, 375, 387), and that OSHA software Occupational Safety and Health Act, 29 facilitating analysis of the data (see, e.g., is not needed (see, e.g., Exs. 15: 363, U.S.C. 657, 673. Section 8 authorizes the Exs. 35; 15: 153, 418). For example, the 378). For example, the Synthetic Secretary to issue regulations she Ford Motor Company stated that ‘‘Ford Organic Chemical Manufacturers determines to be necessary to carry out feels that the development of Association, Inc. (SOCMA) stated that her statutory functions, including recordkeeping software by OSHA, ‘‘[a]n outside organization with software regulations requiring employers to which will employ a decision-making development expertise should develop record and report work-related deaths 1 logic, automatic form generation, the the software. OSHA’s limited resources and non-minor injuries and illnesses. ability to assist the employer in should go directly toward improving Section 8(c)(1) of the Act requires each evaluating the entered data, and a safety and health in the workplace’’ (Ex. 1 This rule excludes minor or insignificant tutorial section to assist employers in 15: 357). The Air Transport Association injuries and illnesses from reporting requirements. training is necessary. This will enhance added: ‘‘[m]ost major companies have The exclusion of minor illnesses represents a the uniformity of data collection developed their own software to support change from the former rule, and is discussed infra.
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employer to ‘‘make, keep and preserve, Section 20 of the Act, 29 U.S.C. 669, regulations as [s]he may deem necessary and make available to the Secretary [of contains additional implicit authority to carry out [her] responsibilities under Labor] or the Secretary of Health [and for collecting and disseminating data on this Act[,]’’ including regulations Human Services], such records occupational injuries and illnesses. requiring employers to record and to regarding his activities relating to this Section 20(a) empowers the Secretaries make reports on ‘‘work-related deaths, Act as the Secretary, in cooperation of Labor and Health and Human injuries and illnesses other than minor with the Secretary of Health and Human Services to consult on research injuries requiring only first aid Services, may prescribe by regulation as concerning occupational safety and treatment and which do not involve necessary or appropriate for the health problems, and provides for the medical treatment, loss of enforcement of this Act or for use of such research, ‘‘and other consciousness, restriction of work or developing information regarding the information available,’’ in developing motion or transfer to another job.’’ 29 causes and prevention of occupational criteria on toxic materials and harmful U.S.C. 657(g)(2), (c)(2). Similarly, accidents and illnesses.’’ Section 8(c)(2) physical agents. Section 20(d) states that section 24 directs the Secretary to further provides that the ‘‘Secretary, in ‘‘[i]nformation obtained by the Secretary compile accurate statistics on ‘‘all cooperation with the Secretary of Health and the Secretary of [HHS] under this disabling serious, or significant injuries and Human Services, shall prescribe section shall be disseminated by the and illnesses, whether or not involving regulations requiring employers to Secretary to employers and employees loss of time from work, other than minor maintain accurate records of, and to and organizations thereof.’’ injuries. * * *’’ 29 U.S.C. 673(a). Where make periodic reports on, work-related Two federal circuit Courts of Appeals an agency is authorized to prescribe deaths, injuries and illnesses other than have held that rules imposing regulations ‘‘necessary’’ to implement a minor injuries requiring only first aid recordkeeping requirements are statutory provision or purpose, a treatment and which do not involve regulations and not standards, and are regulation promulgated under such medical treatment, loss of thus reviewable initially in the district authority is valid ‘‘so long as it is consciousness, restriction of work or courts, rather than the Courts of reasonably related to the enabling motion, or transfer to another job.’’ Appeals. Louisiana Chemical Assn. v. legislation.’’ Mourning v. Family Section 8(c)(3) empowers the Secretary Bingham, 657 F.2d 777, 782–785 (5th Publications Service, Inc., 411 U.S. 356, to require employers to ‘‘maintain Cir. 1981) (OSHA rule on Access to 369 (1973). accurate records of employee exposures Employee Exposure and Medical Section 8(g)(2) is functionally to potentially toxic materials or harmful Records); Workplace Health & Safety equivalent to the enabling legislation at physical agents which are required to be Council v. Reich, 56 F.3d 1465, 1467– issue in Mourning; therefore a reviewing monitored or measured under Section 1469 (D.C. Cir. 1995) (OSHA rule on court must examine the final 6.’’ Reporting of Fatality or Multiple recordkeeping rule’s relationship to the Section 8(g)(1) authorizes the Hospitalization Incidents). These courts purposes of section 8. Cf. Louisiana Secretary ‘‘to compile, analyze, and applied a functional test to differentiate Chemical Assn. v. Bingham, 550 F. publish, whether in summary or between standards and regulations: Supp. 1136, 1138–1140 (W.D. La. 1982), detailed form, all reports or information standards aim toward correction of aff’d, 731 F.2d 280 (5th Cir. 1984) obtained under this section.’’ Section identified hazards, while regulations (records access rule is directly related to 8(g)(2) of the Act empowers the serve general enforcement and detection the goals stated in the Act and Secretary ‘‘to prescribe such rules and purposes, including those outlined in supported by the language of section 8). regulations as he may deem necessary to section 8. E.g., Workplace Health & C. The Final Recordkeeping Rule’s Key carry out his responsibilities under the Safety Council, 56 F.3d at 1468. See also Provisions Are Reasonably Related to Act.’’ United Steelworkers of America v. the Purposes of the OSH Act Section 24 contains a similar grant of Reich, 763 F.2d 728, 735 (3d Cir. 1985) regulatory authority. It requires the (Hazard Communication rule is a The goal of this final rule, as stated in Secretary to ‘‘develop and maintain an standard because it aims to ameliorate the Summary, is to improve the quality effective program of collection, the significant risk of inadequate and consistency of injury and illness compilation, and analysis of communication about hazardous data while simplifying the occupational safety and health statistics chemicals). Clearly, the recordkeeping recordkeeping system to the extent * * * The Secretary shall compile requirements in this final rule serve consistent with the statutory mandate. accurate statistics on work injuries and general administrative functions: They To achieve this purpose, the final rule illnesses which shall include all are intended to ‘‘aid OSHA’s effort to carries forward the key elements of the disabling, serious, or significant injuries identify the scope of occupational safety existing recordkeeping scheme, with and illnesses, whether or not involving and health problems,’’ to ‘‘serve as the changes designed to improve efficiency, loss of time from work, other than minor foundation for national statistics on the equity, and flexibility while reducing, to injuries requiring only first aid number and rate of workplace injuries the extent practicable, the economic treatment and which do not involve and illnesses’’ and ‘‘to raise employers’’ burden on individual establishments. medical treatment, loss of awareness of the kinds of injuries and The central requirements in the final consciousness, restriction of work or illnesses occurring in their workplaces.’’ rule may be summarized as follows: All motion, or transfer to another job.’’ See Functions of the Recordkeeping non-exempt employers must record all Section 24 also empowers the Secretary System, supra. Therefore, the final rule work-related, significant injuries and to ‘‘promote, encourage, or directly falls squarely within the mandate of illnesses. As discussed below, OSHA’s engage in programs of studies, sections 8 and 24 of the Act and is approach to each of these elements—the information and communication properly characterized as a regulation. scope of the exemptions from recording concerning occupational safety and requirements, the meaning of ‘‘work- health statistics.’’ Finally, Section 24 B. The Legal Standard: The Regulation relationship,’’ and the criteria for requires employers to ‘‘file such reports Must Be Reasonably Related to the determining whether an injury or illness with the Secretary as he shall prescribe Purposes of the Enabling Legislation is ‘‘significant’’—is reasonable and by regulation, as necessary to carry out Under section 8, the Secretary is directly related to the statutory language his functions under this chapter.’’ empowered to issue ‘‘such * * * and purpose.
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1. Exemptions From Recordkeeping preserving the essential purposes of the from routine recordkeeping and Requirements recordkeeping scheme: reporting requirements. See 42 FR 5356 The final rule contains two categories The [exemption] has been carefully (January 28, 1977) (noting restriction in of exemptions that, together, relieve designed to carry out the mandate of section FY 1975 and 1976 appropriations acts most employers of the obligation 8(d) without impairing the Act’s basic and stating OSHA would continue to routinely to record injuries and illnesses purpose. Thus, the [exemption] will not treat firms of up to 10 employees as diminish the protections afforded employees sustained by their employees. Section exempt pending permanent change in under the Act because all employers * * * the regulations to expand the small- 1904.1 contains a ‘‘very small- remain subject to the enforcement provisions employer’’ exemption: Employers need employer exemption). of the Act. The [exemption] will continue to OSHA also concludes that a very not record injuries or illnesses in the require * * * small employers * * * to small business exemption limited to the current year if they had 10 or fewer report fatalities and multiple hospitalizations routine recording and reporting of non- employees at all times during the and to participate in the BLS annual survey fatal injuries and illnesses will not previous year, unless required to do so when selected to do so. seriously undermine the recordkeeping pursuant to Sections 1904.41 or 42 FR 10016 (February 18, 1977). system. OSHA explained in Section I. of In the present rulemaking, the 1904.42. Section 1904.2 contains a the preamble that there are three Secretary proposed to enlarge the scope ‘‘low-hazard industry’’ exemption: primary purposes for recordkeeping and of the exemption to include employers, Individual business establishments are reporting requirements. First, the in industries other than construction, not required to keep records if they are records are the foundation for national having 19 or fewer employees during classified in specific low-hazard retail, statistics published by the BLS on the service, finance, insurance, or real estate the entire previous calendar year. 61 FR number and rate of workplace injuries industries. 4057 (February 2, 1996). At the same and illnesses, as well as their source, a. The size-based exemption. Section time, the proposal asked for public nature and type. Second, the records 8(d) of the Act expresses Congress’ comment on whether ‘‘the small provide information useful to employers intent to minimize, where feasible, the employer partial exemption [should] and employees in their efforts burden of recordkeeping requirements remain the same, be eliminated, or be voluntarily to locate and eliminate on employers, particularly small expanded?’’ 61 FR 4043. In reaching a workplace safety and health hazards. businesses: ‘‘Any information obtained final decision on this matter, the Finally, the records are useful to OSHA by the Secretary, the Secretary of [HHS], Secretary resolved two interrelated in targeting its enforcement efforts and or a State agency under this Act shall be questions. First, she determined that in efficiently conducting its safety and obtained with a minimum burden upon there is no sound basis for departing health inspections. employers, especially those operating from OSHA’s prior interpretation that Exempting very small businesses from small businesses. Unnecessary the Act permits a carefully crafted routine recordkeeping will not duplication of efforts in obtaining exemption for very small employers. significantly compromise these goals. information shall be reduced to the Second, she determined that limiting The exemption has no effect upon the maximum extent feasible.’’ 29 U.S.C. the exemption to employers with ten or obligation of these businesses to 657(d). fewer employees effectuates Congress’ participate in the national statistical Since 1972, the Secretary has intent with the minimum degree of survey administered by the BLS. See the exempted very small businesses from impairment to the overall recordkeeping discussion of § 1904.42 in Section V. most recordkeeping requirements. On scheme. The first question is essentially Summary and Explanation. If a small October 4, 1972, OSHA issued a one of statutory construction, and is business is selected for participation in provision, codified at 29 CFR therefore considered below. The second the survey, it must keep a log of injuries 1904.15(a), exempting employers from question calls for an analysis of the and illnesses and make reports as routine injury and illness reporting record and is addressed in the preamble required by the BLS. Id. Thus, even the requirements for the current year if they explanation for section 1904.1 of the smallest firms continue to be had no more than seven employees final rule. represented in the national injury and during the previous year. The It is a fundamental principle of illness statistics. exemption did not relieve these administrative law that an agency which The second purpose is not seriously businesses from the obligation to report chooses to reverse a previously held compromised by the exemption because fatality and multiple hospitalization position must supply a ‘‘reasoned injury and illness records are less incidents to OSHA and to participate in analysis’’ of its decision. Motor Vehicle necessary as an aid to voluntary the BLS annual survey when selected to Mfgrs Assn. v. State Farm Mutual compliance efforts by very small do so. 37 FR 20823 (October 4, 1972). Automobile Insurance Co., 463 U.S. 27, employers and their employees than In 1977, the Secretary amended section 42 (1983). After careful consideration, they are for larger employers. OSHA’s 1904.15 to make it applicable to the Secretary finds no persuasive basis experience is that, in establishments businesses having ten or fewer for eliminating the small-employer with only a few employees, employees during the year preceding exemption in this rule. As a threshold management and production personnel the current reporting year. 42 FR 38568 matter, nothing has changed the typically work in close concert. Because (July 29, 1977). As support, the agency’s long-held view that section of their size, such establishments also amendment cited the Department of 8(d) permits a carefully tailored tend to record fewer occupational Labor appropriations acts for fiscal years exemption from recordkeeping injuries and illnesses. Accordingly, in 1975 and 1976, which exempted requirements for very small businesses. very small firms, managers are likely to employers having ten or fewer 42 FR 10016 (February 18, 1977). This have first-hand knowledge of those employees from most routine interpretation is consistent with the occupational injuries and illnesses that recordkeeping requirements, and literal wording of the statute and is occur in their workplaces. By the same Section 8(d) of the Act. Id. The further confirmed by the provisions in token, it is reasonable to believe that Secretary determined that the the Department’s appropriations acts for employees in very small firms are amendment appropriately balanced the FY 1975 and 1976, exempting generally aware of the injuries that interest of very small businesses while employers with ten or fewer employees occur in their workplaces and do not
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rely heavily upon access to employer conducting inspections of very small information for employers and records to inform themselves about businesses initiated by a complaint or employees because BLS data showed occupational hazards. In short, review report of a fatality or an accident that approximately 94% of all and analysis of injury and illness resulting in multiple hospitalizations. establishments in the affected industry records by very small business OSHA has long acknowledged that groups could be expected to have fewer employers, or by their employees, may while injury and illness records are than two injuries per establishment on not be required for awareness of frequently useful in identifying an annual basis. Id. Finally, the workplace conditions. hazardous areas or operations within exemption would not affect the Finally, routine injury and illness larger establishments subject to reliability of safety and health statistics records are of limited usefulness to programmed inspections, they are because the affected establishments OSHA in targeting and conducting significantly less important in the would continue to participate in the inspections. Many OSHA inspections conduct of inspections in the smallest BLS annual survey of occupational are conducted in response to a specific businesses. As OSHA has stated, injuries and illnesses. Id. complaint or referral alleging unsafe ‘‘experience has shown that when OSHA continues to believe that a conditions, or in response to a dealing with small employers, the injury properly tailored exemption for low- workplace catastrophe or fatality. A and illness records * * * are normally hazard industries is appropriate. large number of inspections are also not needed by the CSHO to locate Congress intended in section 8(d) to conducted under special emphasis hazards during an inspection. In those minimize the recordkeeping burden on programs at the national and local level. cases where log information may be all employers, not only small The remaining inspections are needed, the CSHO can easily obtain the businesses. Exempting from routine conducted at specific worksites in the information by interviewing the injury and illness reporting construction industry and in other non- employees.’’ 42 FR 10016 (February 18, requirements those employers whose construction industries selected under a 1977). See also 47 FR 57699, 5700 records are unlikely to be of significant planned schedule. Construction (December 28, 1982) (in conducting benefit to OSHA, or to the employers inspections are selected using an complaint or fatality inspections, the and their employees, serves this econometric model that predicts the hazard information is usually provided important interest. However, OSHA best time to conduct an inspection at a by the complaint itself, or through recognizes that the balance between the specific construction project. The prompt investigation.) For these interest of minimizing recordkeeping general industry scheduled inspections reasons, the Secretary believes that an burdens and that of ensuring accurate, are targeted primarily toward employers exemption for very small employers, reliable and useful information is a with extremely high rates of reasonably tailored to the purposes delicate one. In the final rule, OSHA has occupational injury and illness, using served by recordkeeping requirements, substantially revised the list of exempt data supplied by employers to the is appropriate. low-hazard industries based upon more OSHA Data Initiative (ODI) under the b. The hazard-based exemption. Since reliable three-digit industry requirements of former section 1904.17, 1982, OSHA has exempted from routine classification data. See the discussion of Annual OSHA Injury and Illness Survey recordkeeping requirements certain § 1904.1, in the following Summary and of Ten or More Employers (now section industries classified in OMB’s Standard Explanation. With these changes, OSHA 1904.41). Due to budget, paperwork Industrial Classification (SIC) Manual. believes that the rule strikes the burden and logistical constraints, OSHA The 1982 exemption was limited to appropriate balance. collects data only from employers in establishments in SIC Industry Groups 2. The Meaning of ‘‘Work-Relationship’’ high hazard industries, and has that (1) were not subject to general generally not collected data from schedule inspections, and (2) had Section 8 of the Act directs the employers with fewer than 40 workers. average lost workday case injury rates, Secretary to prescribe regulations OSHA is also prohibited from as published by the BLS, at or below requiring employers to ‘‘maintain conducting scheduled inspections of 75% of the national average. In 1982, accurate records of * * * work-related employers with 10 or fewer employees the industry groups that met these deaths injuries and illnesses [of a non- in low hazard industries by an annual criteria were those classified as retail minor nature]. 29 U.S.C. 657(c)(2). The rider on OSHA’s appropriations bills trade, finance, insurance, real estate, definition of work-relationship in which has been renewed annually for and services—SIC codes 52–89, section 1904.5 of the final rule is many years. Thus, OSHA does not excluding 52–54, 70, 75, 76, 79, and 80. consistent, in all but one respect, with collect data from very small employers, 47 FR 57699–57,700 (December 28, the definition in the Guidelines to the and they are excluded from the general 1982). former rule. The final rule states that an industry scheduled inspection program. The purpose of the exemption ‘‘was to injury or illness is work-related ‘‘if an Because very small firms have been further OSHA’s continuing effort under event or exposure in the work wholly excluded from the general section 8(d) of the Act to reduce the environment either caused or schedule inspection program, the paperwork burden on employers contributed to [it] or significantly routine injury and illness records of without compromising worker safety aggravated a pre-existing injury or very small businesses have been of little and health.’’ 47 FR 57700. Exempting illness. Work-relatedness is presumed use to OSHA in targeting inspections. low-hazard industries from routine for injuries and illnesses resulting from Should OSHA wish to include very record-keeping was justified, OSHA events or exposures occurring in the smaller employers in a special emphasis explained, for the same reasons that work environment, unless an exception inspection program or other initiative, warranted exempting very small listed in section 1904.5(b)(2) specifically the agency may require any business, businesses. Injury and illness records applies’’ (emphasis added). regardless of its size, to keep records from establishments in the affected SIC The Guidelines state that, ‘‘[i]f an and make reports as necessary. See 29 codes were not of significant benefit to event * * * occurred in the work CFR 1904.41. OSHA because these industry groups environment that caused or contributed OSHA also finds that access to the were not then targeted for general to the injury’’, the case would be Log and Incident Report would be of schedule inspections. Id. The records recordable, assuming it meets the other little value to compliance officers in were not a significant source of requirements for recordability. Ex. 2 at
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p. 32 (original emphasis). Further not directly productive, such as ‘‘working conditions.’’ Section 2(b)(7) instructions in the Guidelines provided horseplay. seeks to assure that no employee will that: The proposed rule asked for comment suffer diminished health or life The general rule is that all injuries and on whether OSHA should abandon its expectancy as a result of his ‘‘work illnesses which result from events or historic approach and adopt a new test experience.’’ Section 2(b)(12) states that exposures occurring to employees on the for determining work-relationship. 61 one of the Act’s purposes is to provide employer’s premises are presumed to be FR 4044, 4045. The proposal outlined for reporting procedures which work related. This presumption is rebuttable. three alternative tests in which the ‘‘accurately describe the nature of the * * * However, the nature of the activity determination of work-relationship occupational safety and health which the employee is engaged in at the time turned on the degree to which the injury problem.’’ Section 2(b)(13) encourages of the event or exposure, the degree of or illness was linked to occupational joint labor-management efforts to reduce employer control over the employee’s causes, as compared with personal activity, the preventability of the incident, or injuries and disease ‘‘arising out of the concept of fault do not affect the factors such as off-the job activities, employment.’’ determination. aging, or pre-existing medical This conclusion is further supported conditions. Two of these alternative by the Act’s stated purpose to promote Ex. 2 at p. 34 (original emphasis). The tests required evidence of a high degree only significant difference between the research into the causes and prevention of work causation to establish work- of occupational injuries and illnesses. final rule and the former rule is that the relationship. Alternative 1 required that final rule requires that work Section 2 of the Act establishes occupational factors be the ‘‘sole cause’’ Congress’ intent to improve ‘‘significantly’’ aggravate a pre-existing of the injury or illness; any evidence of injury or illness before the case is occupational safety and health, inter non-work related causal factors was alia, by: recordable. sufficient to exclude the case. Providing for research in the field of OSHA’s approach to work- Alternative 2 required that occupational relationship in both the former and the occupational safety and health, including the factors be the ‘‘predominant cause’’ psychological factors involved, and by final recordkeeping rules reflects two before the case could be considered important principles. The first is that developing innovative methods, techniques work-related. See 61 FR 4044. Some and approaches for dealing with work need only be a causal factor for an commenters suggested a modification to occupational safety and health problems. 29 injury or illness to be work-related. The Alternative 2 that would have involved U.S.C. § 651(b)(5) rule requires neither precise substitution of the word ‘‘substantial’’ or [E]xploring ways to discover latent quantification of the occupational cause, ‘‘significant’’ for ‘‘predominant.’’ diseases, establishing causal connections nor an assessment of the relative weight The third alternative test was between diseases and work in environmental of occupational and non-occupational significantly more expansive than that conditions, and conducting other research relating to health problems. * * * 29 U.S.C. causal factors. If work is a tangible, adopted in the final rule. Under discernible causal factor, the injury or § 651(b)(6). Alternative 3, an injury or illness would Providing for appropriate reporting illness is work-related. The second be considered work-related if the work procedures with respect to occupational principle is that a ‘‘geographic environment had any possibility of safety and health which will help achieve the presumption’’ applies for injuries and playing a causal role. 61 FR 4044. objectives of this Act and accurately describe illnesses caused by events or exposures Some commenters favored a the nature of the occupational safety and that occur in the work environment. somewhat different test for work- health problems. 29 U.S.C. § 651(b)(12). These injuries and illnesses must be relationship that focused on the nature The legislative history of the Act considered work-related unless an of the injury-causing event in the demonstrates Congress’ awareness of the exception to the presumption workplace. This test would include in importance of developing information specifically applies. the OSHA records only those cases for future scientific use. The Committee The final rule’s geographic resulting from uniquely occupational or Report accompanying the Senate bill presumption reflects a theory of job-related activities or processes. reported to the floor noted that, causation similar to that applied by Supporters of this approach argued that courts in some workers’ compensation [i]n the field of occupational health, the it would exclude injuries and illnesses view is particularly bleak, and due to the lack cases. Under the ‘‘positional-risk’’ test, caused by factors at work that are of information and records, may well be an injury may be found to ‘‘arise out of’’ unrelated to production tasks, or that considerably worse than we currently know. employment for compensation purposes are unpreventable by the employer’s * * * Recent scientific knowledge points to if it would not have occurred but for the safety and health program. hitherto unsuspected cause-and-effect fact that the conditions and obligations After careful consideration of the relationships between occupational of employment placed the claimant in record, OSHA believes that the final exposures and many of the so-called chronic the position where he or she was rule’s test for work-relationship is both diseases—cancer, respiratory ailments, injured. See 1 Larson’s Workers’ more consistent with the Act’s purpose allergies, heart disease, and others. In some Compensation Law section 6.50 (1977). and more practical than the ‘‘quantified instances, the relationship appears to be direct: asbestos, ionizing radiation, Accord, Odyssey/Americare of occupational cause’’ tests or the ‘‘unique chromates, and certain dye intermediaries, Oklahoma v. Worden, 948 P.2d 309, 311 occupational conditions’’ test. The among others, are directly involved in the (Okla. 1997). Under this ‘‘but for’’ language of the statute itself indicates genesis of cancer. In other cases, approach to work-relationship, it is not that Congress did not intend to give occupational exposures are implicated as necessary that the injury or illness result ‘‘work-related’’ a narrow or technical contributory factors. The distinction between from conditions, activities or hazards meaning, but rather sought to cover a occupational and non-occupational illnesses that are uniquely occupational in variety of causal relationships that is growing increasingly difficult to define. nature. Accordingly, the presumption might exist in workplaces. Section 2 of S. Rep. No. 1282, 91st Cong., 2d Sess. encompasses cases in which an injury the Act addresses injuries and illnesses 2 (1970), reprinted in Subcommittee on or illness results from an event at work arising out of ‘‘work situations.’’ Labor of the Senate Committee on Labor that is outside the employer’s control, Sections 2(b)(1), 2(b)(2), and 2(b)(4) refer and Public Welfare, Legislative History such as a lightning strike, or involves to ‘‘places of employment,’’ and to the of the Occupational Safety and Health activities that occur at work but that are achievement of safe and healthful Act of 1970 (Committee Print 1971) at
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142 (Leg. Hist.). With this background in information from the records. These is a widely accepted legal test for mind, the committee stated that it theories would eliminate cases in which causation and is consistent with the ‘‘expects the Secretary of Labor and the the work environment is believed to statutory language and purpose. Secretary of [HHS] will make every have played a definite role in the The ‘‘unique occupational activities’’ effort through the authority to issue accident or the onset of disease, but not test, like the ‘‘quantification’’ tests, regulations and other means, to obtain enough is known to quantify the effect would likely result in exclusion of complete data regarding the occurrence of work factors or to assess the relative important information from the records. of illnesses, including those resulting contribution of work and non-work An activity-based test for work- from occupational exposure which may factors. However, the information relationship could obscure the role of not be manifested until after the provided by cases having a tangible, yet factors in the work environment not termination of such exposure.’’ Leg. unquantifiable, connection with the directly linked to production, such as Hist. at 157. work environment is useful to violence perpetrated by employees and Both the Senate and the House employers, employees and researchers others or tuberculosis outbreaks. In Committees expressed concern that the and thus serves the recordkeeping addition, the precise causal mechanism statute not be interpreted in a way that purposes envisioned by Congress. by which an employee has been injured would result in under-reporting of On the other hand, the third or made ill at work may not be known injuries and illnesses. The Senate report alternative theory in the proposal would at the time of the accident, or may be states: sweep too broadly. A work-relationship misunderstood. To serve the statute’s test that is met if work has ‘‘any research purposes, the records must The committee recognizes that some work- possibility of playing a role in the case’’ related injuries or ailments may involve only reflect not only those injuries and a minimal loss of work time or perhaps none would include virtually every injury or illnesses for which the precise causal at all, and may not be of sufficient illness occurring in the work mechanism is apparent at the time of significance to the Government to require environment. 61 Fed. Reg. 4044. recordation, but also those for which the their being recorded or reported. However, Recording cases in which the causal mechanism is imperfectly understood. the committee was also unwilling to adopt connection to work is so vague and The alternative approaches to work- statutory language which, in practice might indefinite as to exist only in theory relationship would severely limit the result in under-reporting. The committee would not meaningfully advance usefulness of injury and illness data for believes that records and reports prescribed research, or serve the other purposes for by the Secretary should include such research purposes, particularly research requiring recordkeeping. For these to uncover latent patterns of health occurrences as work-related injuries and reasons, OSHA has rejected the three illnesses requiring medical treatment or impairment and disease and to establish restriction or reassignment of work activity, alternative theories outlined in the causal connections between diseases as well as work-related loss of consciousness. proposal. and exposure to particular hazards. The ‘‘unique occupational activity’’ The Occupational Safety and Health Leg. Hist. at 157. The House Report test, which some commenters favored similarly noted that while some injuries Review Commission has affirmed the instead of the geographic presumption, approach to work-relationship taken in and illnesses might not be of enough would limit recorded injuries and value to require recordation, ‘‘the the former rule. General Motors Corp., illnesses to those caused by an activity Inland Div., 8 O.S.H. Cas. (BNA) 2036, greater peril’’ lay in allowing under or process peculiarly occupational in reporting. Leg. Hist. at 860. Therefore, 2039–2040 (August 29, 1980). The issue nature. Supporters of this approach in General Motors was whether the the report added, ‘‘[the] language ‘all identified several types of cases that employer was required to record work-related injuries, [and illnesses]’ would be work-related under the respiratory ailments of three employees, should be treated as a minimum floor. geographic presumption, but not based on notations from the employees’ ***’’ recordable under an activities-based treating physicians that their ailments In light of these purposes, it is approach. These include cases in which were probably related to exposure to a apparent that Congress did not, in the injury or illness was not caused by chemical substance at work. The Section 8, mean to limit recordable the physical forces or hazards unique to Commission rejected the employer’s ‘‘work-related’’ injuries and illnesses industrial processes, cases in which the argument that the recordkeeping rule only to those caused primarily or employee was not injured while required recording only of illnesses substantially by work. It is evident from performing an activity or task directly the statute that Congress wanted related to production, and cases in directly caused by work activities, employers to keep accurate records of which the injury or illness was not stating: non-minor injuries and illnesses, in preventable by the employer. To accept Respondent’s interpretation part, to serve as a basis for research on The ‘‘unique occupational activity’’ would impose a static view of scientific the causes and prevention of industrial test is unsuitable for essentially the knowledge. Only illnesses in which the accidents and diseases. This research is same reasons that militate against the known cause was the occupational needed, among other reasons, to further first two alternatives described in the environment would be recorded. Unknown medical correlations between disease and the examine and understand those proposal. The statutory language and workplace would be obscured by this occupational factors implicated as purpose do not reflect a Congressional inadequate recording obligation. Under this contributory causes in injuries and intent to limit recording only to those interpretation of the statute and regulations, diseases. To serve this purpose, the cases resulting from uniquely OSHA and NIOSH would be significantly records should include cases in which occupational hazards or activities. restrained from fulfilling their statutory there is a tangible connection between Rather, the statute shows that Congress obligation of making the workplace healthier. work and an injury or illness, even if the knew that employees were being injured * * * [T]he primary purpose of the recording causal effect cannot be precisely and made ill in a variety of ways and obligation is to develop information for quantified, or weighed against non- under a variety of circumstances, and future scientific use. occupational factors. wanted employers to record all cases 8 O.S.H. Cas. at 2040. Accordingly, The first two alternative causally related to the work OSHA believes that there is a sound quantification theories outlined in the environment. The ‘‘but-for’’ theory legal basis for the definition of work- preamble would exclude important underlying the geographic presumption relationship in the final rule.
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There are also sound policy not be logged and included in the Log and significant injury or illness diagnosed justifications. The approach to ‘‘work- Summary nor used by OSHA to determine its by a physician or other licensed health relationship’’ adopted in the final rule is inspection schedule. If the event was caused care professional even if it does not does more cost-effective than the alternative by something beyond the employer’s control, it should not be considered a recordable not result in the one of the listed approaches and will result in more event that calls into question a facility’s outcomes. OSHA’s definition of a accurate injury and illness data. OSHA safety and health program. * * * Credibility ‘‘significant’’ injury or illness in this expects that for each reported injury or in this regulation rests on whether the context is based on two key principles illness, employers generally will be able recorded data accurately reflects the safety discussed below. The first is that the to apply the geographic presumption and health of the workplace. Including requirement for recording only more easily and quickly than a test events where the workplace had virtually no significant cases applies equally to requiring an assessment of the relative involvement undermines the credibility of ‘‘injuries’’ and ‘‘illnesses’’ for contribution of employment and the system and results in continued resistance to this regulation. recordkeeping purposes. The second personal causes. The incremental principle is that the criteria expressly reduction in the time necessary to Ex. 15–335B. The law firm of mentioned in the Act, such as death, complete each entry, when multiplied Constangy, Brooks and Smith, LLC, loss of consciousness or restriction of by the total number of entries per year, urged OSHA to adopt the second work, are mandatory but not exclusive will result in a substantial cumulative alternative definition in the proposal indicia of significance; any significant saving in paperwork burden in because cases that are ‘‘predominantly injury or illness diagnosed by a comparison to the burden that would be caused by workplace conditions’’ are physician or other licensed health care imposed by the alternatives. the ones most likely to be preventable professional must also be recorded. The geographic presumption will also by workplace controls. They stated, These two principles are addressed produce more consistent and accurate ‘‘[s]ince OSHA’s ultimate mission is the below, while the definitions applicable reporting. OSHA believes that it would prevention of workplace injuries and to the specific criteria themselves, and be difficult to measure the precise illnesses, it is reasonably necessary to related evidentiary issues, are discussed degree to which personal and require recording only when the injury in the preamble explanation for section or illness can be prevented by the occupational factors cause accidents or 1904.7. employer.’’ Ex. 15–345. illnesses. Accordingly, any test a. The significant case requirement requiring that job duties or tasks be OSHA believes that these comments reflect too narrow a reading of the applies equally to injuries and illnesses; ‘‘significant’’ or ‘‘predominant’’ employers are no longer to report causative factors would necessarily purposes served by injury and illness insignificant illnesses. OSHA involve a high degree of subjective records. Certainly one important distinguishes between injuries and judgment. There is likely to be purpose for recordkeeping requirements illnesses based on the nature of the substantial inconsistency, both in the is to enable employers, employees and precipitating event or exposure. Cases treatment of successive, similar cases by OSHA to identify hazards that can be which result from instantaneous events the same employer, and in the treatment prevented by compliance with existing are generally considered injuries, while of such cases among different standards or recognized safety practices. cases which result from non- employers. Moreover, such a test would However, the records serve other instantaneous events, such as a latent fail to capture cases in which the purposes as well, including facilitating disease or cumulative trauma disorder, workplace contribution to an injury or the research necessary to support new are considered illnesses. Id. illness was imperfectly known or occupational safety and health misunderstood at the time the case was standards and to better understand Under the former recordkeeping reported. Recording all cases caused by causal connections between the work regulations, occupational injuries had to events or exposures at work, with only environment and the injuries and be recorded if they were non-minor in limited exceptions, produces data that illnesses sustained by employees. As nature; that is, if they resulted in loss of enables OSHA, employers and others to discussed above, these purposes militate consciousness, or required medical better understand the causal in favor of a general presumption of treatment, time off work, restriction of relationships present in the work work-relationship for injuries and work, lost time, or transfer to another environment. Although OSHA has not illnesses that result from events or job. 61 FR 4036. However, all adopted a test for determining exposures at the worksite, with occupational illnesses had to be significant contribution by work, the exceptions for specific types of cases reported, regardless of severity. Id. This final rule does include provisions to that can be safely excluded without difference in the severity threshold for make sure that workplace aggravation of significantly impairing the usefulness of recording injuries and illnesses had, in a pre-existing injury must be significant the database. the past, been based upon the particular phrasing of section 8(c)(2) of the Act: before work relationship is established 3. The Criteria for Determining the (see discussion of 1904.5(b)(4)). Significance of an Injury or Illness The Secretary * * * shall prescribe A number of commenters argued that regulations requiring employers to maintain because OSHA’s mission is to eliminate Section 1904.7 of the final rule sets accurate records of, and to make periodic preventable occupational injuries and forth the criteria to be used by reports on, work-related deaths, injuries and illnesses, the determination of work- employers in determining whether illnesses, other than minor injuries requiring work-related occupational injuries and only first aid treatment and which do not relatedness must turn upon whether the involve medical treatment, loss of case could have been prevented by the illnesses are significant, and therefore recordable. Under § 1904.7, a work- consciousness, restriction of work or motion, employer’s safety and health program. or transfer to another job.’’ Dow expressed this view as follows: related injury or illness is significant for recordkeeping purposes if it results in 29 U.S.C. 657(c)(2). Because the [T]he goal of this recordkeeping system any of the following: death, days away severity criteria appear in the clause should be to accurately measure the effectiveness of safety and health programs in from work, restricted work or transfer to defining ‘‘minor injuries,’’ OSHA had the workplace. Activities where safety and another job, medical treatment beyond construed the section to require health programs could have no impact on first aid, or loss of consciousness. recordation of all work-related illnesses, preventing or mitigating the condition should Employers must also record any even those that do not meet the severity
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characteristics expressly applicable to indications to the contrary, it is meets one of the listed criteria is non- ‘‘injuries.’’ reasonable to presume that Congress minor and must be recorded, the OSHA has reconsidered its position in meant the same severity threshold to converse does not necessarily follow. this rulemaking, and has concluded that apply to both conditions. An injury or illness may reasonably be the former rule was inappropriate in In addition, there are strong policy viewed as significant, and therefore several respects. First, although the reasons for avoiding a distinction recordable, even if it is not immediately severity characteristics listed in section between injuries and illnesses based on followed by death, loss of 8(c)(2) of the Act apply expressly to severity. OSHA explained in the consciousness, or job-related disability. ‘‘injuries,’’ the Act contains persuasive proposal that the current distinction For example, an employee diagnosed indications that Congress also meant to between injuries and illnesses based on with an unquestionably serious work- require recordation only of ‘‘significant’’ the nature of the precipitating event has related disease, such as asbestosis or illnesses, as determined by reasonable caused some degree of confusion and mesothelioma, may forego or postpone criteria. Section 24(a) states that ‘‘[t]he uncertainty. Using one set of criteria for medical treatment and continue Secretary shall compile accurate severity means that employers will not temporarily to perform his or her statistics on work injuries and illnesses have to decide whether a case is an normal job duties. Focusing exclusively which shall include all disabling, injury or an illness in determining its on the basic criteria listed in the statute serious, or significant injuries and recordability. This simplifies the in cases such as these could result in illnesses * * * other than minor recordkeeping system, resulting in more underrecording of serious cases. injuries requiring only first aid accurate injury and illness data while Accordingly, the final rule requires treatment and which do not involve reducing the recordkeeping burden for employers to record any significant medical treatment * * * .’’ 29 U.S.C. employers who are required to maintain injury or illness that is diagnosed. A 673 (a). The legislative history also records (61 FR 4036). Employers will thorough discussion of this requirement, supports this view. The statement of the continue to classify each recordable case including a definition of what House managers on the resolution of as either an injury or an illness on the constitutes a ‘‘significant’’ injury or conflicting House and Senate bills states OSHA 300 Log, but the decision no illness for this purpose, is contained in that: longer has any effect on whether or not the preamble discussion of section A Senate bill provision without a the case must be recorded. 1904.7. counterpart in the House amendment b. The criteria listed in the Act are Because the provisions of the final permitted the Secretary to require an mandatory but not exclusive indicia of recordkeeping rule, as explained above employer to keep records and make reports significance. A final issue relating to and in the subsequent sections of this on ‘‘all work-related deaths, injuries and significance is the effect to be given a preamble, are reasonably related to the illnesses.’’ The House receded with an finding that an injury or illness results statutory purposes, the Secretary finds amendment limiting the reporting in, or does not result in, one of the that the rule is necessary to carry out requirement to injuries and illnesses other outcomes listed in the statute: death, her responsibilities under the Act. The than of a minor nature, with a specific days away from work, restricted work or definition of what is not of a minor nature. rule is therefore a valid exercise of the transfer to another job, medical Secretary’s general rulemaking authority Leg. Hist. at 1190 (emphasis treatment beyond first aid, or loss of under Section 8. Cf. Mourning v. Family supplied). The former rule did not consciousness. The implication arising Publications Services, 411 U.S. 356. appropriately implement this intent. In from the wording of section 8(c)(2) and the first place, OSHA’s prior section 24 is that if an injury or illness VII. Summary and Explanation interpretation that section 8(c)(2) limits results in one of the listed outcomes, it The following sections discuss the the applicability of the listed severity must be deemed significant for contents of the final 29 CFR Part 1904 criteria only to injuries does not recordkeeping purposes. This position, and section 1952.4 regulations. OSHA necessarily mean that illnesses must be which reflects OSHA’s longstanding, has written these regulations using the recorded without regard to their consistent interpretation of the statute, plain language guidance set out in a significance. As a textual matter, such a was not seriously questioned in the Presidential Memo to the heads of reading simply leaves open the question rulemaking. Accordingly, the final rule executive departments and agencies on of what, if any, severity criteria apply to requires that a work-related injury or June 1, 1998. The Agency also used illnesses. illness be recorded if it results in one of guidance from the Plain Language OSHA believes that the Act does not the outcomes mentioned in the statute. Action Network (PLAN), which is a support a different severity threshold for The final rule also requires that a case government-wide group working to injuries than for illnesses. OSHA is now be recorded, whether or not it results in improve communications from the persuaded that its prior reading of one of the listed outcomes, if it involves Federal government to the public, with section 8(c)(2) placed too much a significant injury or illness diagnosed the goals of increasing trust in emphasis on the fact that the severity by a physician or other licensed health government, reducing government costs, criteria modify the word ‘‘injuries’’ in care professional. 29 CFR 1904.10(b). and reducing the burden on the public. the clause, ‘‘other than minor injuries Nothing in the statute compels the For more information on PLAN, see requiring only first aid treatment and conclusion that the criteria mentioned their Internet site at http:// which do not involve medical in sections 8 and 24 are the exclusive www.plainlanguage.gov/. treatment, loss of consciousness, indicia of severity for recordkeeping The plain language concepts restriction of work or motion or transfer purposes. Congress directed the encourage government agencies to adopt to another job.’’ 29 U.S.C. 657(c)(2). Secretary to collect data on ‘‘all a first person question and answer Congress’ failure to list specific severity disabling, serious, or significant injuries format, which OSHA used for the Part criteria for illnesses, as it did for and illnesses, whether or not involving 1904 rule. The rule contains several injuries, does not, in itself, compel the loss of time from work,’’ other than types of provisions. Requirements are inference that two different sets of minor injuries * * * which [do not described using the ‘‘you must * * *’’ criteria must apply. Congress meant to result in one of the listed outcomes]. 29 construction, prohibitions are described limit recordation to significant injuries U.S.C. 673(a). A reasonable reading of using ‘‘you may not * * *’’, and and illnesses alike, and absent strong this language is that while an injury that optional actions that are not
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requirements or prohibitions are Services’’ (HHS), as required by Section workers’ compensation or other preceded by ‘‘you may * * *.’’ OSHA 24(a) of the Act. insurance benefits.’’ The last sentence of has also included provisions to provide In the final rule, OSHA has moved proposed paragraph (b) described the information to the public in the rule. much of this material, which was various types of workplace events or explanatory in nature, from the exposures that may lead to a recordable Subpart A. Purpose regulatory text to the preamble. This injury or illness. The Purpose section of the final rule move has simplified and clarified the A number of commenters agreed with explains why OSHA is promulgating regulatory text. The final rule’s Purpose the proposed statements on fault, this rule. The Purpose section contains paragraph simply states that: ‘‘The compliance, and the relationship no regulatory requirements and is purpose of this rule (Part 1904) is to between the recording of a case and intended merely to provide information. require employers to record and report workers’ compensation or other A Note to this section informs work-related fatalities, injuries and insurance (see, e.g., Exs. 25, 15: 305, employers and employees that recording illnesses.’’ This final rule statement is 346, 420). Employers have frequently a case on the OSHA recordkeeping essentially identical to the first sentence asked OSHA to explain the relationship forms does not indicate either that the of the proposed Purpose section. It between workers’ compensation employer or the employee was at fault clearly and succinctly states OSHA’s reporting systems and the OSHA injury in the incident or that an OSHA rule has reasons for issuing the final rule. and illness recording and reporting been violated. Recording an injury or A number of commenters (see, e.g., requirements. As NYNEX (Ex. 15: 199) illness on the Log also does not, in and Exs. 25; 15: 199, 305, 313, 346, 348, 352, noted, of itself, indicate that the case qualifies 353, 375, 418, 420) specifically [t]he issue of confusion between OSHA for workers’ compensation or other addressed proposed section 1904.1. The recordkeeping and workers’ compensation/ benefits. Although any specific work- principal points raised by these insurance requirements cannot be totally related injury or illness may involve commenters concerned: (1) Statements eliminated as the workers’ compensation some or all of these factors, the record in proposed paragraph (a) about the criteria vary somewhat from state to state. made of that injury or illness on the quality of the data captured by the There will always be some differences OSHA recordkeeping forms only shows records; (2) proposed paragraph (b)’s between OSHA recordability and three things: (1) that an injury or illness discussion of the relationship between compensable injuries and illnesses. The has occurred; (2) that the employer has OSHA recordkeeping and employer/ potential consequences of these differences can be minimized, however, if all determined that the case is work-related employee fault, violations of OSHA stakeholders in the recordkeeping process (using OSHA’s definition of that term); rules, and the workers’ compensation (i.e., employers, employees, labor unions, and (3) that the case is non-minor, i.e., system, and (3) the statement in OSHA compliance officials) are well that it meets one or more of the OSHA proposed paragraph (c) that discussed informed that OSHA recordability does not injury and illness recording criteria. OSHA’s consultation with the Secretary equate to compensation eligibility. This can OSHA has added the Note to this first of Health and Human Services in be facilitated by printed reminders on all of subpart of the rule because employers developing this rule. Each of these the OSHA recordkeeping documents (e.g., and employees have frequently issues is discussed in detail below. forms, instructions, pamphlets, compliance directives, etc.). requested clarification on these points. Most comments on proposed The following paragraphs describe the paragraph (a) took issue with the As NYNEX observed, employers must changes OSHA has made to the Purpose language that OSHA used to describe document work-related injuries and provisions in Subpart A of the final rule, the statistical use of the records (see, illnesses for both OSHA recordkeeping and discusses the Agency’s reasons for e.g., Exs. 25, 15: 305, 346, 348, 375, and workers’ compensation purposes. these changes. Proposed section 1904.1 420). Typical of these comments is one Many cases that are recorded in the of Subpart A contained three separate from the National Association of OSHA system are also compensable paragraphs. Proposed paragraph (a) Manufacturers: ‘‘We urge OSHA to under the State workers’ compensation stated that the purpose of the remove the following unverified and system, but many others are not. recordkeeping rule (Part 1904) was ‘‘to conclusory statement from § 1904.1(a): However, the two systems have different require employers to record and report ‘‘The records: * * * accurately describe purposes and scopes. The OSHA work-related injuries, illness and the nature of occupational safety and recordkeeping system is intended to fatalities.’’ It also described several ways health problems for the Nation, State or collect, compile and analyze uniform in which such records were useful to establishment’’ (Exs. 25, 15: 305). OSHA and consistent nationwide data on employers, employees, OSHA officials, did not intend this statement to attest occupational injuries and illnesses. The and researchers evaluating and with certainty to the validity of national workers’ compensation system, in identifying occupational safety and occupational statistics. Proposed section contrast, is not designed primarily to health issues. 1904.1(a) merely paraphrased section generate and collect data but is intended Proposed paragraph (b) noted that the 2(b) of the Act, which states that such primarily to provide medical coverage recording of a job-related injury, illness records ‘‘will help achieve the and compensation for workers who are or fatality did not necessarily impute objectives of this Act and accurately killed, injured or made ill at work, and fault to the employer or the employee, describe the nature of the occupational varies in coverage from one State to did not necessarily mean that an OSHA safety and health problem.’’ In response another. rule had been violated when the to commenters, OSHA has simplified Although the cases captured by the incident occurred, and did not mean the final rule by deleting the proposed OSHA system and workers’ that the case was one for which workers’ listing of the functions of the records compensation sometimes overlap, they compensation or any other insurance- required by this rule. often do not. For example, many related benefit was appropriate. The As discussed earlier, proposed injuries and illnesses covered by third paragraph in proposed section paragraph (b) stated that the recording workers’ compensation are not required 1904.1, proposed paragraph (c), stated of a case did not ‘‘necessarily mean that to be recorded in the OSHA records. that the regulations in Part 1904 had the employer or employee was at fault, Such a situation would arise, for been developed ‘‘in consultation with that an OSHA standard was violated, or example, if an employee were injured the Secretary of Health and Human that the employee is eligible for on the job, sent to a hospital emergency
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room, and was examined and x-rayed by to report all recordable incidents (Ex. 15: rule would implement, be consistent with, a physician, but was then told that the 418). and be authorized by Section 4(b)(4) of the injury was minor and required no Act, which prohibits the Act from affecting OSHA believes that the note to the workers’ compensation and tort schemes. treatment. In this case, the employee’s Purpose paragraph of the final rule will medical bills would be covered by allay any fears employers and OSHA agrees with the point made by workers’ compensation insurance, but employees may have about recording these commenters about the proposed the case would not be recordable under injuries and illnesses, and thus will rule’s use of the word ‘‘necessarily.’’ Part 1904. encourage more accurate reporting. Both Accordingly, the word necessarily has Conversely, an injury may be the Note to Subpart A of the final rule been deleted from the Note to the recordable for OSHA’s purposes but not and the new OSHA Form 300 expressly Purpose paragraph of the final rule. be covered by workers’ compensation. state that recording a case does not However, OSHA has rejected the For example, in some states, workers’ indicate fault, negligence, or suggestion made by these commenters compensation does not cover certain compensability. to limit the admissibility of the forms as types of injuries (e.g., certain The Workplace Health and Safety evidence in a court proceeding. Such musculoskeletal disorders) and certain Council, the American Coke and Coal action is beyond the statutory authority classes of workers (e.g., farm workers, Chemicals Institute, and the National of the agency, because OSHA has no contingent workers). However, if the Oilseed Processors Association (Exs. 15: authority over the courts, either Federal injury meets OSHA recordability criteria 313, 352, 353) all urged OSHA to or State. it must be recorded even if the improve on this paragraph of the In the proposal, the no-fault statement particular injury would not be proposed rule in two ways. First, these was followed by a listing of the various compensable or the worker not be commenters asked OSHA to remove the causes of recordable injuries and covered. Similarly, some injuries, word ‘‘necessarily’’ from the language of illnesses: ‘‘Recordable workplace although technically compensable proposed paragraph (b), which stated injuries and illnesses result from a under the state compensation system, that recording did not ‘‘necessarily variety of workplace events or do not result in the payment of workers’ mean’’ that anyone was at fault, that a exposures, including but not limited to: compensation benefits. For example, a standard had been violated, or that the accidents, exposure to toxic materials or worker who is injured on the job, case was compensable: harmful physical agents, intentional acts of violence, or naturally occurring receives treatment from the company The qualification ‘‘necessarily’’ robs the physician, and returns to work without events such as a tornado or earthquake.’’ [proposed] sentences of their meaning and The American Petroleum Institute (API) loss of wages would generally not makes them inaccurate. Using the word receive workers’ compensation because erroneously implies that merely listing an (Ex. 15: 375) objected to this proposed the company would usually absorb the injury sometimes does mean that the sentence describing the various costs. However, if the case meets the employer or employee was at fault, that an examples of injury and illness causality, OSHA recording criteria, the employer OSHA standard was violated, or that the stating: would nevertheless be required to employee is eligible for workers’ To help the system have much-needed record the injury on the OSHA forms. compensation. Clearly, this is not what credibility, ‘‘regardless of fault or OSHA intended to convey. Indeed, the word preventability’’ should not be applied beyond As a result of these differences ‘‘necessarily’’ may actually worsen the between the two systems, recording a reasonable limits. Specifically, it shouldn’t problem OSHA seeks to solve, for attorneys mean ‘‘tornado or earthquake’’ or other case does not mean that the case is and consultants reading the proposed sudden, unforeseen catastrophic events over compensable, or vice versa. When an provision might well advise employers that which the employer clearly could not have injury or illness occurs to an employee, the provision actually endorses some uses of any control. Employers can, however, the employer must independently a listing against an employer. exercise control to prevent injury from some analyze the case in light of both the OSHA should, therefore, delete the word types of naturally occurring events. The OSHA recording criteria and the ‘‘necessarily. * * *’’ Alternatively, the terms ‘‘tornado or earthquake’’ should be sentence in the regulation should read: ‘‘That replaced with more reasonable examples. requirements of the State workers’ an injury or illness is recordable has no compensation system to determine bearing on whether the employer or In the final rule, OSHA has decided whether the case is recordable or employee was at fault, an OSHA standard to eliminate the sentence of examples to compensable, or both. violated, or the employee is eligible for make the regulatory text clearer and The American Federation of Labor workers’ compensation. * * *’’ The legend more concise. However, OSHA notes and Congress of Industrial in the form would be similarly changed (Exs. that many circumstances that lead to a Organizations (AFL–CIO) urged OSHA 15: 313, 352, 353). recordable work-related injury or illness to emphasize the no-fault philosophy of These three commenters (Exs. 15: 313, are ‘‘beyond the employer’s control,’’ at the Agency’s recordkeeping system, 352, 353) also suggested the following: least as that phrase is commonly interpreted. Nevertheless, because such stating: (a) much preferred additional solution, The AFL–CIO is encouraged by some would be for OSHA to promulgate in the an injury or illness was caused, provisions currently in the proposed final version a provision that makes contributed to, or significantly rulemaking which indirectly address inadmissible in all proceedings, both those aggravated by an event or exposure at underreporting. But, we believe the Agency under the OSH Act and those under any state work, it must be recorded on the OSHA must take it one step further. To adequately or federal law, the entries in Form OSHA 300 form (assuming that it meets one or address this problem, the Agency must and 301 as evidence of fault or culpability. more of the recording criteria and does encourage employers to adopt a ‘‘no fault Such a regulation would give employers the not qualify for an exemption to the system’’ philosophy in the workplace and necessary assurance that their recordkeeping geographic presumption). This approach remove barriers which discourage the forms would not be used against them. is consistent with the no-fault reporting of injuries and illnesses by Injured employees would lose nothing by employees. This philosophy will not only this, for they could still be permitted to prove recordkeeping system OSHA has encourage workers to report injuries and the fact of injury, its work-relatedness, and adopted, which includes work-related illnesses, but also encourage those its consequence, with normal proof. They injuries and illnesses, regardless of the individuals (e.g., supervisors, safety would simply not be permitted to introduce level of employer control or non-control personnel) responsible for recording this data the forms as evidence of culpability. Such a involved. The issue of whether different
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types of cases are deemed work-related OSHA’s recordkeeping rule covers 1904.1, ‘‘Partial exemption for under the OSHA recordkeeping rule is many employers in OSHA’s jurisdiction employers with 10 or fewer employees,’’ discussed in the Legal Authority but continues to exempt many states that: section, above, and in the work- employers from the need to keep (a) Basic requirement. relationship section (section 1904.5) of occupational injury and illness records (1) If your company had ten (10) or fewer this preamble. routinely. This approach to the scope of employees at all times during the last In a comment on proposed paragraph the rule is consistent with that taken in calendar year, you do not need to keep OSHA (a), the National Association of the former recordkeeping rule. Whether injury and illness records unless OSHA or Manufacturers (NAM) (Exs. 25, 15: 305) a particular employer must keep these the BLS informs you in writing that you must argued that the OSHA recordkeeping records routinely depends on the keep records under § 1904.41 or § 1904.42. system should only collect information number of employees in the firm and on However, as required by § 1904.39, all employers covered by the OSH Act must on the Standard Industrial Classification, or report to OSHA any workplace incident that ‘‘the most significant hazards, those that lead SIC code, of each of the employer’s results in a fatality or the hospitalization of to the most significant injuries and illnesses establishments. Employers with 10 or three or more employees. ***’’ and that the purpose paragraph of the fewer employees are not required to (2) If your company had more than ten (10) final rule be revised to state ‘‘The purpose of keep OSHA records routinely. In employees at any time during the last this Part is to require employers to record addition, employers whose calendar year, you must keep OSHA injury and report disabling, serious and significant establishments are classified in certain and illness records unless your establishment work-related injuries and illnesses, and industries are not required to keep is classified as a partially exempt industry work-related fatalities.’’ under § 1904.2. OSHA records under most (b) Implementation. OSHA does not agree with this circumstances. OSHA refers to interpretation of the OSH Act. As (1) Is the partial exemption for size based establishments exempted by reason of on the size of my entire company or on the discussed in the Legal Authority size or industry classification as size of an individual business establishment? section, above, Congress stated clearly ‘‘partially exempt,’’ for reasons The partial exemption for size is based on that the OSHA recordkeeping system explained below. the number of employees in the entire was intended to capture ‘‘work-related The final rule’s size exemption and company. deaths, injuries and illnesses, other than the industry exemptions listed in non- (2) How do I determine the size of my minor injuries requiring only first aid mandatory Appendix A to Subpart B of company to find out if I qualify for the partial treatment and which do not involve the final rule do not relieve employers exemption for size? To determine if you are exempt because of medical treatment, loss of with 10 or fewer employees or consciousness, restriction of work or size, you need to determine your company’s employers in these industries from all of peak employment during the last calendar motion, or transfer to another job’’ (Sec. their recordkeeping obligations under year. If you had no more than 10 employees 8(c)(2)) (emphasis added). The words 29 CFR Part 1904. Employers qualifying at any time in the last calendar year, your ‘‘disabling, serious, and significant,’’ for either the industry exemption or the company qualifies for the partial exemption suggested by NAM, are at variance with employment size exemption are not for size. Congress’ clear intent. OSHA concludes routinely required to record work- The Size-Based Exemption in the that the guidance given by Congress— related injuries and illnesses occurring Former Rule that employers should record and report to their employees, that is, they are not on work-related deaths, and on injuries normally required to keep the OSHA The original OSHA injury and illness and illnesses other than minor injuries, Log or OSHA Form 301. However, as recording and reporting rule issued in establishes the appropriate recording sections 1904.1(a)(1) and 1904.2 of this July 1971 required all employers threshold for cases entered into the final recordkeeping rule make clear, covered by the OSH Act to maintain OSHA recordkeeping system. these employers must still comply with injury and illness records. In October A few commenters recommended that three discrete provisions of Part 1904. 1972, an exemption from most of the OSHA delete paragraph (c) of the First, all employers covered by the Act recordkeeping requirements was put in proposed Purpose section (see, e.g., Exs. must report work-related fatalities or place for employers with seven or fewer 25, 15: 305, 346, 348, 420), and in the multiple hospitalizations to OSHA employees. In 1977, OSHA amended the final rule, OSHA has done so because under § 1904.39. Second, under rule to exempt employers with 10 or the paragraph merely attested to § 1904.41, any employer may be fewer employees, and that exemption OSHA’s cooperation with other agencies required to provide occupational injury has continued in effect to this day. All on this rule. Although the rule has, in and illness reports to OSHA or OSHA’s employers, however, have always been fact, been developed in cooperation designee upon written request. Finally, required to report fatalities and with the Department of Health and under § 1904.42, any employer may be catastrophes to OSHA and to participate Human Services, and specifically with required to respond to the Survey of in the BLS survey, if requested to do so. the National Institute for Occupational Occupational Injuries and Illnesses As discussed in the Legal Authority Safety and Health (NIOSH), there is no conducted by the Bureau of Labor section of this preamble, the 10 or fewer need to include this information in the Statistics (BLS) if asked to do so. Each employee threshold is consistent with regulatory text itself. of these requirements is discussed in Congressional intent: the 1977 Federal greater detail in the relevant portion of Register notice announcing the new Subpart B. Scope this summary and explanation. exemption cited the Department of The coverage and partial exemption Labor appropriations acts for fiscal years provisions in Subpart B of the final rule Section 1904.1 Partial Exemption for 1975 and 1976, which exempted establish which employers must keep Employers With 10 or Fewer Employees employers having 10 or fewer OSHA injury and illness records at all In § 1904.1 of the final rule, OSHA employees from most routine times, and which employers are has retained the former rule’s size-based recordkeeping requirements, and generally exempt but must keep records exemption, which exempts employers Section 8(d) of the Act, as the major under specific circumstances. This with 10 or fewer employees in all reasons for raising the exemption size subpart contains sections 1904.1 industries covered by OSHA from most threshold from seven to 10 employees. through 1904.3 of the final rule. recordkeeping requirements. Section The 1977 Notice stated that the new size
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threshold appropriately balanced the compensation data that suggest that compensable injuries to workers in small interest of small businesses while smaller businesses are at least as firms were at least as serious as compensable preserving the essential purposes of the hazardous as larger businesses (Ex. 15: injuries in larger firms [Oleinick et al. 1995] recordkeeping scheme: 407). NIOSH also argued that the BLS (Ex. 15: 407). The [exemption] has been carefully estimated injury and illness incidence rates for small employers may be Since publication of the designed to carry out the mandate of section recordkeeping proposal, OSHA has 8(d) without impairing the Act’s basic erroneously low, i.e., may be the result purpose. Thus, the [exemption] will not of underreporting rather than a lower done considerable research into the diminish the protections afforded employees injury rate. The following comment issue of fatality, injury, and illness rates under the Act because all employers * * * from NIOSH explains these concerns: in small companies. The results of this remain subject to the enforcement provisions research also point to underreporting, of the Act. The [exemption] will continue to From a public standpoint, NIOSH does not rather than safer workplaces, as a likely require * * * small employers * * * to support a partial exemption from reason for the lower-than-average injury recordkeeping requirements for employers in report fatalities and multiple hospitalizations and illness numbers reported by small and to participate in the BLS annual survey the construction industry with 10 or fewer when selected to do so (42 FR 38568 (July 29, employees, and non-construction employers employers. The most telling evidence 1977)). with 19 or fewer employees. Research that injury and illness underreporting is indicates significant safety and health prevalent among small firms is the The Size-Based Exemption in the Final problems in ‘‘small’’ establishments which substantial discrepancy between the Rule employ a substantial proportion of the fatality rates in these firms and their The final rule published today workforce. One-quarter of the civilian, full- injury and illness rates. maintains the former rule’s partial time workforce is employed in establishments with fewer than 25 employees Most professionals agree that exemption for employers in all covered (Oleinick et al. 1995). occupational fatality data are more industries who have 10 or fewer The Occupational Safety and Health reliable than occupational injury and employees. Under the final rule (and the Administration (OSHA) notes [in the illness data, primarily because fatalities former rule), an employer in any proposal to the recordkeeping rule] that ‘‘the are more likely to be reported than industry who employed no more than Annual Survey data show that small injuries. The work-related BLS fatality employers generally experience much lower 10 employees at any time during the data appear to confirm this belief, preceding calendar year is not required patterns of injuries and illnesses than medium size firms.’’ However, recent showing that although businesses with to maintain OSHA records of fewer than 10 employees account for occupational illnesses and injuries literature comparing Annual Survey data and workers compensation data questions the only 4% of the total workforce, they during the current year unless requested validity of the estimated rates for small account for 28% of occupational to do so in writing by OSHA (under employers obtained through the Bureau of fatalities. Furthermore, although § 1904.41) or the BLS (under § 1904.42). Labor Statistics (BLS) Annual Survey. businesses with fewer than 20 If an employer employed 11 or more Moreover, fatal and nonfatal work injuries employees comprise only 26% of the people at a given time during the year, are a significant risk among small businesses in hazardous industries and many industries total workforce, they account for 36% of however, that employer is not eligible all occupational fatalities (see for the size-based partial exemption. with high fatal and nonfatal injury rates are comprised primarily of small companies. In Mendeloff, ‘‘Using OSHA Accident The Size-Based Exemption in the addition, NIOSH research indicates that Investigations to Study Patterns in Work Proposed Rule small companies have less access to safety Fatalities,’’ J. Occup. Med 32: 1117, and health programs that might reduce 1119 (1990) (Ex. 15: 407 F)). These data In the 1996 proposal, OSHA injuries and illnesses than larger companies contemplated raising the threshold for strongly suggest that very small [NIOSH 1988a]. businesses are disproportionately the size-based exemption to 19 Though the Annual Survey of employees for all employers except Occupational Injuries and Illnesses has hazardous places to work. those in the construction industry. In consistently reported that employers with Many safety and health professionals proposing this more extensive fewer than 20 employees have significantly also believe that injuries and illnesses exemption, OSHA stated that BLS lower rates of injuries and illnesses, there is are substantially underreported by small Annual Survey data appeared to concern that these low incidence rates are an employers (see, e.g., Exs. 4, 5, 15: 407). artifact of the reporting system. Analysis of indicate that small businesses in this compensable injuries with >7 missed However, the occupational injury and size category had proportionately fewer workdays in Michigan indicates that the illness data reported by employers to injuries and illnesses and were thus pattern of lower injury rates among small the BLS in connection with its Annual safer places to work. However, since the employers is not consistent across industry Survey of Occupational Injuries and proposal, OSHA has analyzed the record divisions. Though the services and trade Illnesses show lower rates of injuries evidence on this point and now believes industry divisions show a marked decline in and illnesses for firms in the smallest that small businesses are not generally compensable injury rate for small size firms, size classes than for those in larger likely to be less hazardous than larger the higher risk industries of construction and classes. In an effort to understand why transportation/utilities show relatively little smaller firms might have lower injury businesses and, in fact, are likely, as a decline in the compensable injury rate for general matter, to be more hazardous employers with fewer than 25 employees. and illness incidence rates, the authors than large businesses. OSHA’s reasoning Comparison of the demographic of one study found that: (1) is described below. characteristics of the Michigan work force occupational fatality rates were highest Comments to the record make clear with the demographic characteristics of in businesses with fewer than 50 that the recording of fewer injuries and injured workers suggest that high risk groups employees; (2) businesses with fewer illnesses by very small firms could have (e.g., males, younger workers [<35 years of than 50 employees were least likely to many causes other than a lower level of age], construction, manufacturing, have occupational health services hazards. For example, the National transportation, and blue collar workers) are available; and (3) lost workday injury over-represented among workers injured in Institute for Occupational Safety and small size firms (<25 workers). Using rates in several major industry Health (NIOSH) submitted a comment to cumulative lost work time as a surrogate for categories are highest (i.e., the injuries the record that described numerous severity of injury, the Michigan study also are most severe) in these facilities. From studies based on fatality and workers’ found that with one exception (construction), these findings, the authors concluded:
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It is difficult to imagine a set of workplace In the final rule, OSHA has decided construction industry not be exempted conditions in small establishments that to continue the Agency’s longstanding from recordkeeping at all (see, e.g., Exs. would lead simultaneously to lower injury practice of partially exempting 15: 62, 74, 414). For example, Robert L. rates, higher fatality rates, and equal, or employers with 10 or fewer employees Rowan, Jr. stated that: greater, injury severity measured by missed from most recordkeeping requirements, work time, especially since these [s]mall contractors often lack adequate safety establishments were less likely to provide but not to extend the exemption to non- knowledge, programs and safeguards to injury prevention and safety services construction businesses with 19 or prevent injuries and illnesses. I believe that (Oleinick et al., ‘‘Establishment Size and Risk fewer employees, as was proposed. data obtained from these small contractors of Occupational Injury,’’ Am. J. Med. 28(1): OSHA has determined that increasing will point to a trend that these employees 2–3 (1995) (Ex. 15: 407 N)). the number of employers partially have a relatively high frequency of injuries that are related to tasks involving After considering a number of exempted is not in the best interests of the safety and health of their employees. construction work such as excavations and explanations that might explain this fall hazards. I suggest that there be no apparent incongruity, these authors First, as NIOSH’s comments (Ex. 15: 407), the Oleinick et al. study (1995), exemptions for recordkeeping for any rejected all explanations except one— construction employer (Ex. 15: 62). underreporting by small firms: the Mendeloff article (1990), and the Wall Street Journal study (1994) all Other commenters asked OSHA to use With the rejection of alternative indicate, businesses with 20 or fewer a single size threshold for employees in explanations, there is a strong likelihood of employees tend to be relatively all industries and to raise the size underreporting as the explanation, and we hazardous places to work, and their exemption threshold to more than 19 estimate that the annual [BLS] survey employees across the board (see, e.g., substantially undercounts injuries in small employees have a disproportionately establishments (Oleinick et al., 1995 (Ex. 15: high risk of work-related death. Second, Exs. 15: 67, 304, 312, 344, 437). For 407 N)). as NIOSH and others point out, there is example, the Sheet Metal and Air reason to believe that these very small Conditioning Contractors’ National NIOSH agrees, noting that ‘‘recent workplaces also experience Association (SMACNA) remarked: literature comparing Annual Survey disproportionately high numbers of data and workers compensation data The recordkeeping standard is considered injuries and illnesses, and that the BLS questions the validity of the estimated to be a horizontal standard, which by statistics for these workplaces definition, means that it covers all industries. rates for small employers obtained substantially underreport the extent of SMACNA members own and operate sheet through the BLS Annual Survey’’ job-related incidents at these metal fabrication shops where they design (Ex.15: 407). Thus, the apparent establishments (Ex. 15: 407, Oleinick et and create the products which are then discrepancy between the high fatality al. 1995, Wall Street Journal 1994 (Ex. installed in the construction process, rate in the smallest firms (i.e., those 15: 407 N). Finally, under the 10 or including duct work and all types of specialty and architectural sheet metal. Sheet with fewer than 20 employees) and the fewer employee partial exemption low rates of injuries and illnesses metal fabrication shops fall under the threshold, more than 80% of employers manufacturing classification and are reported by those same firms is likely to in OSHA’s jurisdiction are exempted be the result of underreporting rather therefore subject to general industry from routinely keeping records. standards. SMACNA contractors also than lower relative hazards. Increasing the threshold for the size construct with the components that they A Wall Street Journal (Feb. 3, 1994) exemption would deprive even more fabricate. Therefore, as contractors they must computer analysis of more than 500,000 employers and employees of the also comply with the OSHA standards for Federal and State safety-inspection benefits of the information provided by construction. records came to the same conclusions, these injury and illness records and OSHA’s arbitrary two tier record keeping i.e., that employees of small businesses reduce the number of establishments requirement will cause confusion among SMACNA contractors as to which are at greater risk of exposure to where the records can be of use to the workplace hazards than employees of classification they are under and when they government during an on-site visit. have to maintain records. With the volumes larger businesses, and that BLS data for OSHA also believes that keeping the small firms seriously understate injuries of regulations that contractors already must OSHA Log and Incident Report is comply with, it is only logical that if OSHA and illnesses in such firms. From 1988 important for national statistical truly wishes to simplify its recordkeeping through 1992, the analysis found an purposes. requirements it would create a uniform incidence of 1.97 deaths per 1,000 standard for all industries. * * * workers at workplaces with fewer than Size Exemption Threshold for SMACNA urges OSHA to create a uniform 20 employees, compared with an Construction Companies horizontal standard and increase the incidence of just 0.004 deaths per 1,000 The final rule also retains the former exemption for the construction industry to workers at workplaces with more than rule’s size exemption threshold (10 or cover employers with 19 or fewer employees 2,500 workers. Thus, an employee’s risk fewer employees) for construction (Ex. 15: 116). of death was approximately 500 times employers. OSHA proposed separate After a review of the record and higher at the smallest businesses size thresholds for construction and reconsideration of this issue, OSHA compared with the risk at the largest nonconstruction firms, i.e., the Agency agrees that there should be only one size businesses. Similarly, while one in six proposed to exempt firms in exemption threshold across all employees at small businesses worked construction with 10 or fewer industries and finds that the threshold in an area cited for a serious safety employees and non-construction firms should be 10 or fewer employees. This violation, only one in 600 did so at the with 19 or fewer employees from threshold comports both with largest businesses. This means that routine recordkeeping requirements. longstanding Agency practice and employees in small businesses are 100 Comments on this aspect of the proposal Congressional intent. Further, as times more likely to be exposed to a were mixed. Some commenters agreed discussed above, OSHA finds that serious hazard at work than those in the that OSHA should continue the extending this threshold to include largest businesses, a finding that is exemption for construction employers firms with 11 to 19 employees is not consistent with the higher fatality rates with ten or fewer employees (see, e.g., warranted by the evidence. Firms in this in very small workplaces (Wall Street Exs. 15: 145, 170, 197, 288). Other size range have a disproportionately Journal, February 3, 1994). commenters urged that employers in the large number of fatalities, and their
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lower reported injury and illness rates small employers and others’’ (Ex. if the employer had fewer than 11 are likely to be the result of 15:408). employees at all times during the underreporting rather than fewer Some commenters, however, objected previous calendar year. Thus, if an hazards. Thus, companies in this size to OSHA’s proposed exemption of employer employs 11 or more people at class need the information their OSHA employers in the 11 to 20 employee size any given time during that year, the records provide to improve conditions range (see, e.g., Exs. 15:62, 369, 379, employer is not eligible for the small in their workplaces and to protect their 407, 415, 418). Among these was the employer exemption in the following employees from job-related injuries, International Brotherhood of Teamsters year. This total includes all workers illnesses, and deaths. Likewise, OSHA (IBT), which stated: employed by the business. All does not believe that it would be IBT maintains the importance of recording individuals who are ‘‘employees’’ under appropriate to remove the partial of all occupational injuries and illnesses. For the OSH Act are counted in the total; exemption for construction employers that same reason, International Brotherhood the count includes all full time, part with 10 or fewer employees, as some of Teamsters does not support increasing the time, temporary, and seasonal commenters suggested (see, e.g., Exs. 15: trigger for non-construction employers from employees. For businesses that are sole 67, 304, 312, 344, 437). Using the same ten to nineteen employees. Although injuries proprietorships or partnerships, the size threshold for all OSHA-covered due to preventable causes occur in all types owners and partners would not be industries also makes the rule simpler and sizes [of businesses], a disproportionately high number of fatalities considered employees and would not be and is more equitable from industry to occur in the smallest businesses. According counted. Similarly, for family farms, industry. to an analysis of BLS and OSHA data, then family members are not counted as Comments on Raising the Size-Based assistant secretary of labor, Joe Dear, told the employees. However, in a corporation, Exemption House of Representative’s Small Business corporate officers who receive payment Committee, ‘‘Businesses with fewer than for their services are considered Many commenters supported raising eleven workers account for 33 percent of all employees. the size-based exemption threshold (see, fatalities even though they account for less Consistent with the former rule, the e.g., Exs. 27, 15: 26, 27, 67, 102, 123, than 20 percent of employees.’’ According to final rule applies the size exemption a study by the National Federation of 145, 170, 173, 182, 198, 247, 288, 304, based on the total number of employees 359, 375, 378, 392, 401, 437). For Independent Businesses, ‘‘generally businesses with fewer employees do less to in the firm, rather than the number of example, the American Society of Safety improve safety than those with more.’’ Large employees at any particular location or Engineers (ASSE) remarked: corporations can afford the full-time services establishment. Some commenters ASSE supports exempting businesses of a safety engineer and industrial hygienist, suggested that the size exemption under twenty (20) employees from the whereas often small firms cannot. IBT should be based on the number of standard with some specific industry contends that it is up to OSHA to protect the employees in each separate exemptions. Enforcing this regulation for workers and institute prevention measures. establishment rather than the entire firm businesses of less than twenty (20) The use of required recordkeeping of data (see, e.g., Exs. 15: 67, 201, 437). For employees would be detrimental to small helps to reach that aim by providing hard business from the recordkeeping/bureaucracy data. If the data is going to be used as a example, Caterpillar Inc. (Ex. 15: 201) perspective, and may not generate any prevention tool, it must be collected from the noted: significant data. ASSE wishes to clarify, entire workforce not just a subgroup (Ex. We do object to the note to [proposed] however, that this position should not be 15:369). paragraph 1904.2(b)(2) which bases size interpreted to mean that small businesses exemptions on the total number of employees should be exempted from safety and health Reliance on a single size exemption threshold also addresses the point made in a firm rather than the establishment size. laws. We believe that all employees are Size exemptions must be based upon entitled to an equal level of safety and health by SMACNA: that many small individual establishment size. The factors regardless of the size of their place of employers perform construction work that make recordkeeping difficult and employment. Exempting a paperwork and also manufacture products and unproductive for small facilities are not requirement does not change this level of would therefore be uncertain, if the rule eliminated by adding small facilities commitment (Ex. 15: 182). contained two size exemption together. Small facilities are usually unique Two commenters suggested that thresholds, as to whether they are and adding together the injury and illness OSHA use an even higher threshold for required to keep records or not. experience of different small facilities will determining the size-based exemption OSHA’s proposed rule stated that the not produce a valid database for accident (Exs. 15: 357, 408). The Synthetic size exemption would apply to analysis or accident prevention planning. Injury and illness data collection is difficult Organic Chemical Manufacturers employers based on the number of because of small facility size and lack of Association (SOCMA) stated ‘‘*** employees employed by the employer recordkeeping expertise and resources. The SOCMA believes that OSHA should ‘‘for the entire previous calendar year.’’ benefits of collecting information in small modify the small employer exemption The Office of Advocacy of the Small facilities does not justify the costs. It is by increasing it to 40 employees. This Business Administration (SBA) illogical to base the size exemption on alternative approach would reduce the observed (Ex. 15:67, p. 4) that this anything other than the size of each separate employer paperwork burden while statement could be interpreted in establishment. improving the accuracy of injury and various ways, and expressed concern OSHA does not agree with this illness information’’ (Ex. 15:357). that it could be taken to refer to the total comment because the resources Similarly, the American Dental number of employees who had been available in a given business depend on Association (ADA) commented ‘‘The employed at one time or another during the size of the firm as a whole, not on ADA suggests that OSHA expand the the year rather than the total employed the size of individual establishments proposed exemption from ‘fewer than at any one time of the year. The SBA owned by the firm. In addition, the 20 employees’ to ‘fewer than 25 office recommended that OSHA provide analysis of injury records should be of employees.’ This would bring the small- clearer guidance. OSHA agrees with the value to the firm as a whole, regardless employer exception into conformity SBA that the proposed regulatory of the size of individual establishments. with many federal and state language was ambiguous. Accordingly, Further, an exemption based on employment laws. It would also serve as the final rule clarifies that the 10 or individual establishments would be a more reasonable dividing line between fewer size exemption is applicable only difficult to administer, especially in
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cases where an individual employee, establishments in the retail, services, finance, coverage by Part 1904 if their average such as a maintenance worker, regularly insurance or real estate industries (SICs 52– lost workday injury rate (LWDI) for reports to work at several 89)? 1978–80 was at or below 75% of the establishments. Yes. Business establishments classified in overall private sector LWDI average rate agriculture; mining; construction; for that year. Industries traditionally Section 1904.2 Partial Exemption for manufacturing; transportation; Establishments in Certain Industries communication, electric, gas and sanitary targeted for OSHA enforcement (those services; or wholesale trade are not eligible in SICs 01 through 51, comprising the Section 1904.2 of the final rule for the partial industry classification industry divisions of agriculture, partially exempts employers with exemption. construction, manufacturing, establishments classified in certain (2) Is the partial industry classification transportation and public utilities, lower-hazard industries. The final rule exemption based on the industry mining, and wholesale trade) remained updates the former rule’s listing of classification of my entire company or on the subject to the full recordkeeping partially exempted lower-hazard classification of individual business requirements. Although the 1982 establishments operated by my company? industries. Lower-hazard industries are Federal Register notice discussed the those Standard Industrial Classification The partial industry classification exemption applies to individual business possibility of revising the exempt (SIC) code industries within SICs 52–89 industry list on a routine basis, the list that have an average Days Away, establishments. If a company has several business establishments engaged in different of partially exempt industries compiled Restricted, or Transferred (DART) rate at classes of business activities, some of the in 1982 has remained unchanged until or below 75% of the national average company’s establishments may be required to this revision of the Part 1904 rule. DART rate. The former rule also keep records, while others may be exempt. The proposed rule would have contained such a list based on data from (3) How do I determine the Standard updated the industry exemption based 1978–1980. The final rule’s list differs Industrial Classification code for my on more current data, and would have from that of the former rule in two company or for individual establishments? relied on 3-digit SIC code data to do so. You determine your Standard Industrial respects: (1) the hazard information The only change from the former rule supporting the final rule’s lower-hazard Classification (SIC) code by using the Standard Industrial Classification Manual, taken in the proposal would have been industry exemptions is based on the reliance on LWDI rates for industries at most recent three years of BLS statistics Executive Office of the President, Office of Management and Budget. You may contact the 3-digit, rather than 2-digit, level. (1996, 1997, 1998), and (2) the your nearest OSHA office or State agency for Evaluating industries at the 3-digit exception is calculated at the 3-digit help in determining your SIC. level allows OSHA to identify 3-digit rather than 2-digit level. industries with high LWDI rates (DART The changes in the final rule’s Employers with establishments in those industry sectors shown in rates in the terminology of the final rule) industry exemptions are designed to that are located within 2-digit industries require more employers in higher- Appendix A are not required routinely to keep OSHA records for their with relatively low rates. Conversely, hazard industries to keep records all of use of this approach allows OSHA to the time and to exempt employers in establishments. They must, however, keep records if requested to do so by the identify lower-hazard 3-digit industries certain lower-hazard industries from within a 2-digit industry that have keeping OSHA injury and illness Bureau of Labor Statistics in connection relatively high LWDI (DART) rates. Use records routinely. For example, with its Annual Survey (section of LWDI (DART) rates at the more compared with the former rule, the final 1904.42) or by OSHA in connection detailed level of SIC coding increases rule requires many employers in the 3- with its Data Initiative (section 1904.41). the specificity of the targeting of the digit industries within retail and service In addition, all employers covered by exemptions and makes the rule more sector industries that have higher rates the OSH Act must report a work-related equitable by exempting workplaces in of occupational injuries and illnesses to fatality, or an accident that results in the lower-hazard industries and requiring keep these records but exempts hospitalization of three or more employers in more hazardous industries employers in 3-digit industries within employees, to OSHA within 8 hours to keep records. those industries that report a lower rate (section 1904.39). Under the proposal, based on their of occupational injury and illness. In 1982, OSHA exempted LWDI (DART) rates, the following Section 1904.2 of the final rule, ‘‘Partial establishments in a number of service, industries would have been required to exemption for establishments in certain finance and retail industries from the keep records for the first time since industries,’’ states: duty to regularly maintain the OSHA 1982: (a) Basic requirement. Log and Incident Report (47 FR 57699 (1) If your business establishment is (Dec. 28, 1982)). This industry SIC 553 Auto and Home Supply Stores classified in a specific low hazard retail, exemption to the Part 1904 rule was SIC 555 Boat Dealers service, finance, insurance or real estate intended to ‘‘reduce paperwork burden SIC 571 Home Furniture and Furnishings industry listed in Appendix A to this Subpart on employers without compromising Stores SIC 581 Eating Places B, you do not need to keep OSHA injury and worker safety and health.’’ illness records unless the government asks SIC 582 Drinking Places The 1982 list of partially exempt SIC 596 Nonstore Retailers you to keep the records under § 1904.41 or industries was established by § 1904.42. However, all employers must SIC 598 Fuel Dealers report to OSHA any workplace incident that identifying lower hazard major industry SIC 651 Real Estate Operators and Lessors results in a fatality or the hospitalization of groups in the SIC Divisions SIC 655 Land Subdividers and Developers three or more employees (see § 1904.39). encompassing retail trade, finance, SIC 721 Laundry, Cleaning, and Garment (2) If one or more of your company’s insurance and real estate, and the Services establishments are classified in a non-exempt service industries (SICs 52–89). Major SIC 734 Services to Dwellings and Other industry, you must keep OSHA injury and industry groups were defined as the 2- Buildings SIC 735 Miscellaneous Equipment Rental illness records for all of such establishments digit level industries from the SIC unless your company is partially exempted and Leasing because of size under § 1904.1. manual published by the U.S. Office of SIC 736 Personnel Supply Services (b) Implementation. Management and Budget (OMB). SIC 833 Job Training and Vocational (1) Does the partial industry classification Industries in these major industry Rehabilitation Services exemption apply only to business groups were partially exempted from SIC 836 Residential Care
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SIC 842 Arboreta and Botanical or related to less traditional, but increasingly Accordingly, non-mandatory Zoological Gardens, and more frequent exposures such as bloodborne Appendix A of the final rule identifies SIC 869 Membership Organizations Not pathogens, tuberculosis, motor vehicle industries for exemption at the 3-digit Elsewhere Classified incidents or workplace violence. SIC code level. Although this approach Exempting employers with low incidence The following industries would have rates does not provide any measurable relief does make the list of exempt industries been newly exempted by the proposal: from paperwork requirements. Time spent on longer and more detailed, it also targets SIC 525 Hardware Stores recordkeeping is primarily dedicated to the exemption more effectively than did SIC 752 Automobile Parking decision making regarding work relationship the former rule’s list. For example, the SIC 764 Reupholstery and Furniture Repair and recordability, not actual Log entries or final rule does not exempt firms in SIC 793 Bowling Centers completing supplemental reports. many of the more hazardous 3-digit SIC SIC 801 Offices and Clinics of Doctors of Simplifying the decision making process is industries that are embedded within Medicine the best way to reduce the burden of lower rate 2-digit SIC industries. It does, SIC 807 Medical and Dental Laboratories, recordkeeping, not exempting employers (Ex. 15:399). however, exempt firms in relatively and low-hazard 3-digit SIC industries, even SIC 809 Miscellaneous Health and Allied The Service Employees International though they are classified in higher Services, Not Elsewhere Classified Union (SEIU) agreed: hazard 2-digit SIC industries. Where In the Issues section of the preamble Injury and illness recordkeeping is the Days Away, Restricted, or Transferred to the proposed rule, OSHA asked the most basic step an employer must take in (DART, formerly LWDI) rate public to comment on the order to begin to address workplace hazards. calculations exempt all of the 3-digit appropriateness of the proposed Responsible employers recognize that injury SIC industries within a given 2-digit and illness records are a useful tool for exemption procedure, and on whether development of sound company safety and industry, the exempt industry list in or not OSHA should expand this health programs. This information is also Appendix A displays only the 2-digit approach to industries in SICs 01 critical to the workers themselves, by raising SIC classification. This approach merely through 51. The Agency also asked for awareness about how and where people are provides a shorter, simpler list. alternative approaches that would getting hurt, they in turn use this information For multi-establishment firms, the reduce employer paperwork burden to work to eliminate the causes of such industry exemption is based on the SIC while retaining needed injury and injuries and illnesses. Therefore it is code of each establishment, rather than illness information, and for estimates of disturbing that in the proposed revised the industrial classification of a firm as standard, there still exist industry a whole. For example, some larger the costs and benefits associated with exemptions for recordkeeping and reporting. these alternatives. OSHA notes that the Prior to 1983, all employers covered by corporations have establishments that final rule is based on the most recent OSHA with more than ten employees were engage in different business activities. data available (1996–1998). Although it required to maintain injury and illness Where this is the case, each has relied on the methodologies records. establishment could fall into a different proposed (3-digit SIC codes, industries * * * SEIU believes that such exemptions SIC code, based on its business activity. below 75% of the national average are unwarranted and violate the specific The Standard Industrial Classification language of the Occupational Safety and LWDI rate), there have been a few shifts manual states that the establishment, Health Act. * * * The Act does not provide rather than the firm, is the appropriate in the industries proposed to be covered for excluding entire classes of occupationally and those actually covered by the final injured and sick workers. Furthermore, little unit for determining the SIC code. Thus, rule. Thus this final rule will continue recordkeeping will be required for industries depending on the SIC code of the to exempt eating and drinking places that are safe and experience low rates of establishment, one establishment of a (SICs 581 and 582) but will not exempt injuries and illnesses. It is critical that OSHA firm may be exempt from routine automobile parking (SIC 752). require recordkeeping for all industries, recordkeeping under Part 1904, while especially since many previously exempt another establishment in the same Comments on the Proposed Industry sectors now experience increasing rates of company may not be exempt. Exemptions injury and illness. Many of these industry Several commenters suggested that sectors are also dramatically expanding— OSHA use an alternate method for A number of commenters supported therefore, continued recordkeeping is even OSHA’s proposal to apply the 1982 more critical (Ex. 15:379). determining exemptions (see, e.g., Exs. exemption criteria to the service and 15: 97, 201, 359). The National Safety The National Safety Council (Ex. Council (Ex. 15: 359), for example, retail industries at the three-digit SIC 15:359) cautioned: level (see, e.g., Exs. 27; 15: 26, 199, 229, urged OSHA to ‘‘evaluate other 247, 272, 299, 359, 375, 378, 392). From the point of view of injury and exemption procedures before illness prevention. * * * an establishment incorporating one into proposed section However, a number of commenters that does not track its injury and illness opposed any exemptions from the Part 1904.2.’’ experience cannot effectively administer a OSHA has evaluated other approaches 1904 requirements on the basis of prevention program. * * * industry classification (see, e.g., Exs. 15: but has decided that the 3-digit DART Although OSHA encourages rate method is both simpler and more 9, 13, 31, 62, 78, 83, 129, 153, 154, 163, employers to track the occupational equitable than the former 2-digit 186, 197, 204, 234, 350, 379, 399, 414). injuries and illnesses occurring among method. By exempting lower-hazard The International Paper Company their employees and agrees that doing so industry sectors within SICs 52–89, explained its reasons for opposing is important for safety and health OSHA hopes both to concentrate its industry exemptions as follows: prevention efforts, OSHA has decided in recordkeeping requirements in sectors Exempting employers with low incidence the final rule to continue the long- that will provide the most useful data rates is inconsistent with a major objective of established practice of exempting and to minimize paperwork burden. No the recordkeeping rules; specifically, employers in industries with lower exemption method is perfect: any measuring the magnitude of work-related injuries and illnesses. Exemption of specific average lost workday incidence rates method that exempts broad classes of industrial classifications or small employers from most OSHA recordkeeping employers from recordkeeping may bias statistics which are used by OSHA requirements but to tie the exemption as obligations will exempt some more for identifying industries for inspections. closely as possible to specific 3-digit SIC hazardous workplaces and cover some These exemptions may also impact statistics code data. less hazardous workplaces. OSHA has
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attempted to minimize both of these because it reflects the risk to the average —the current data does not justify removal problems by using the most current worker within the particular industry. of the partial recordkeeping exemption for injury and illness statistics available, Moreover, while it is relatively easy to eating and drinking establishments (Ex. 15: and by applying them to a more detailed classify employees according to 96). industry level within the retail, occupation, it is unclear how to classify In the final rule, the exemption for financial and service sectors than was individual employers with regard to eating and drinking places is retained, formerly the case. OSHA has also detailed occupation, and OSHA is also because the recent data indicate that limited the scope of the exemptions by not aware of data that would permit these industries have DART rates that using an exemption threshold that is such classification. are below 75% of the national rate. well below the national average, The Caterpillar Corporation (Ex. 15: Two commenters addressed the including only those industries that 201) suggested that OSHA adjust the proposed removal of the exemption for have average DART rates that are at or formula used to determine which SIC 553, auto and home supply stores below 75% of the national average industries are exempted: (Ex. 15: 367, 402). For example, the DART rate. The rule also limits the You propose to base your exemption on Automotive Parts and Accessories exempt industries to the retail, financial achieving less than 75% of the average Association (APAA) stated: and service sectors, which are generally private sector lost workday injury rate; The vast majority of auto parts stores are less hazardous than the manufacturing however, we would recommend expanding similar to other retailers which would still be industry sector. the size of the exemption to include all exempt under this proposal. * * * [m]ore The Orlando Occupational Safety and industries below the private sector average. than three quarters of the automotive parts Health Customer Council asked: ‘‘What We have no objection to your proposal to retailers which are proposed to be saddled is the criteria for exemptions? For eliminate the ‘‘nesting’’ problem within 2- with the full Log requirements would have digit SIC code groups, as long as the example, large auto dealers who also little or no potential injury or illness exemption size is maximized. The experience to justify the added mandate (Ex. perform auto repair work are exempt, recordkeeping paperwork burden for small 15: 367). while smaller auto repair shops are not and relatively safe industries is significant exempt. Why not classify the and not justified based upon the benefits Several commenters discussed the organization by the most hazardous received. proposed removal of the exemption for SIC 721, laundry, dry cleaning and occupation [within that organization]?’’ OSHA has decided in the final rule to textile rental services (see, e.g., Exs. 15: (Ex. 15: 97). continue to use a formula that will 183, 244, 326). Typical of the views In response to this query, OSHA notes exempt retail, finance and services expressed by these commenters was the that the exemption procedure is industries from most recordkeeping comment of the Textile Rental Services reasonably straightforward, as the requirements if they have a Days Away, Association of America (TRSA): following example illustrates: the Restricted, or Transferred (DART) rate automobile dealer industry is exempt that is at or below 75% of the national TRSA is strongly opposed to OSHA’s because its DART rate, as indicated by average rate. OSHA believes that the proposal to eliminate the partial exemption its average over three years of BLS data, from recordkeeping and reporting 75% threshold will ensure that only requirements for laundry, cleaning, and is below 75% of the national average industries with relatively low injury and rate. Automobile repair shops are not garments services for Standard Industrial illness rates are exempted from these exempted, however, because their rate is Classification (SIC) 721. TRSA believes that requirements. Using the national higher than the 75% cutoff. If OSHA the proposed inclusion of the textile rental average DART rate, rather than 75% of industry is unjustified. Because the textile were to base its recordkeeping the national DART rate, as the threshold rental industry has historically been requirements on the most hazardous for exemption purposes would exempt proactive when it comes to workplace safety occupation within a given industry, employers whose industries were and has been 75% below the industry assuming that occupation-specific average for lost work days, we contend that merely average in terms of their DART within-industry injury and illness data OSHA’s plan to eliminate the partial rate. were available, as this commenter exemption from injury/illness recordkeeping OSHA received many comments from suggests, the number of establishments requirements is unwarranted (Ex. 15: 183). firms in industries that have been in individual industries that would have exempt from most OSHA recordkeeping The National Association of Home to keep records would greatly increase. requirements since 1982 but that would Builders (NAHB) commented on the This is because even relatively safe have been required by the proposed rule proposed inclusion in the recordkeeping industries have some number of to keep records. Most of these system of a variety of industries closely employees who engage in relatively commenters opposed their industry’s associated with the home building hazardous occupations. For example, inclusion within the scope of the industry: workers who transport currency, coins, proposed rule. For example, several As a result of using a 3 digit Standard and documents for banks and other commenters from the restaurant Industrial Classification (SIC), ‘‘Real Estate financial institutions are engaged in a Offices’’ (SIC 651) will now be required to fairly hazardous occupation. They may industry objected to the fact that SICs 581 and 582, eating and drinking places, report and record injury and illness data if be injured in many different ways, they have more than 19 workers during the ranging from highway accidents, to would have been covered (see, e.g., Exs. year. A cursory analysis of the hazards lifting of heavy parcels, to robberies. 15: 3, 4, 5, 6, 7, 8, 12, 20, 22, 55, 96, associated with real estate offices seems to However, the experience of these few 125, 202, 311). The National Restaurant indicate limited exposure to high hazards employees within the industry does not Association remarked: (Ex. 15: 323). accurately reflect the relative degree of The Association opposes elimination of The primary arguments put forth by hazard confronting the vast majority of this exemption on the bases that: these commenters are as follows: (1) The employees in the financial industries. —the proposal, if promulgated, will cost occupational injury and illness data Although it is certainly not perfect, eating and drinking establishments an collected under Part 1904 are available estimated $17 million in the first year alone; OSHA believes that the BLS lost —the additional recordkeeping obligations to OSHA from other sources; (2) OSHA’s workday injury rate (DART rate) is a under the proposed rule duplicate data data requirements are burdensome; (3) better comparative statistic than the already available to OSHA from other the use of even more current data would injury rate for a particular occupation sources; and change the list of exempted industries;
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and (4) some of the individual IBT has concerns when the use of this proposal, coverage would have been industries that would be covered are analysis will grant partial exemptions to SIC based on the industry’s LWDI rate. If a relatively safe. codes 801 (offices and clinics of doctors), 807 3-digit sector did not have published In response, OSHA notes that, (medical and dental offices), and 809 (miscellaneous health and allied services). data, OSHA proposed to use the data for although statistical information on All three of these SIC codes are covered the two-digit industry group for that average work-related injury and illness under other OSHA rules (such as the sector. rates in industries is available from the bloodborne pathogen standard and ethylene One 3-digit sector affected by this BLS and other sources, information oxide standard) and have medical approach was dental offices (SIC 802), about the hazards present at specific surveillance requirements to detect adverse which the proposal would have covered health effects. OSHA should require that workplaces is not available to OSHA because the entire 2-digit health care from those same sources. OSHA these workplaces keep records of work related illnesses or injuries that occur. sector has a relatively high injury and recognizes that the maintenance of these Especially, since OSHA has already illness rate. The American Dental records imposes some burden on determined that there is a significant risk of Association (ADA) suggested that OSHA businesses in the form of paperwork. harm from exposures in these workplaces use an alternative approach to exempt However, the benefits of keeping (Ex. 15: 369). dentists from coverage rather than rely records are also clearly substantial: OSHA recognizes that workers in on a strict data protocol for making the informed employers can use the data to establishments that are exempt under decision: provide greater protection for their the 75% DART rate criterion will [d]ental offices are very much like employees and to receive the benefits continue to be exposed to job-related that accrue from prevention efforts in physicians’ offices in terms of size, scope of hazards and to experience workplace activity, and degree of occupational health the form of fewer injuries and illnesses. injuries and illnesses. However, because risk. For purposes of this rulemaking, In addition, the records are useful to these industries’ overall injury rate is however, physicians’ offices have been OSHA in the inspection process. OSHA below the 75% cutoff, they qualify for granted a categorical exemption while also believes that the process for exemption, along with other financial, dentists’ offices (SIC Code 802) have not. selecting exempt industries must be as service and retail industries that fall Even dental laboratories (SIC Code 807) have been granted a categorical exemption from objective as possible, and that below that injury rate threshold. exemptions must rely upon timely and this rule, although it is unlikely that anyone Exemption of an industry on the basis would assert that dental laboratories are safer objective information about the safety of its lower-than-average DART rate and health experience of a given and more healthful places to work than does not mean that all establishments dental offices. The ADA is unaware of any industry. The lost workday injury rates within that industry have such rates or data suggesting that dental offices should be published by the Bureau of Labor that workers in that industry will not treated differently than either physicians’ Statistics provide the most consistent experience injuries and illnesses. The offices or dental laboratories (Ex. 15: 408). and reliable nationwide statistics 1904 partial exemption does not exempt The more recent data published by available for this purpose, and OSHA is employers from any other OSHA therefore relying on these data. The 75% the BLS for the years 1996, 1997, and regulation or standard, so employees in 1998 include specific estimates of the of the national rate cutoff strikes a these industries will continue to benefit reasonable balance between collecting injury and illness experience for SIC from the protection offered by the 802 (dental offices) in that period. The data likely to be useful and avoiding OSHA standards. For example, while unnecessary burden. OSHA has used dental office industry experienced a 3- doctors’ and dentists’ offices are year average rate of days away, the most recent data available at this partially exempt under the 1904 time in establishing the final list of restricted, or transferred injuries of 0.2 regulation, they are still required to per 100 workers in those years, a rate partially exempt industries. OSHA also comply with the OSHA Bloodborne has used data from a three-year period well below 75% of the national average. Pathogens Standard (29 CFR 1910.1030). Therefore, the final rule exempts (1996–1998) rather than a one-year Use of the 75% criterion merely period to reduce year-to-year variation employers classified in SIC 802 from provides a cutoff point, based on BLS routine recordkeeping requirements. in the data. injury and illness rates, for different Other commenters argued that their industry sectors. OSHA believes that it The proposed rule would have industry should not be exempt because is appropriate to use the 75% cutoff removed SIC 736 (personnel supply their workplaces continue to pose risk point because, in general, it is an services) from the list of exempted to the workers in them. For example, the appropriate overall indicator of the industry sectors; however, because this American Nurses Association (ANA) relative hazard rank of an industry. industry’s more recent average DART opposed the partial exemption of OSHA recognizes that no average (formerly LWDI) rate (for the years 1996, doctor’s offices and health services: across-establishment statistic can 1997, and 1998, the base years OSHA is ANA urges OSHA to remember the capture the injury and illness using to determine lower-hazard purpose of the Act, to protect the health and experience of all occupations or industry exemptions) is above 75% of safety of ALL workers, when deliberating on establishments within that industry. the national average cutoff, SIC 736 is exempting employers from this standard. As For some SIC codes, the BLS Annual not exempted under the final rule. The stated before, health care workers risk of Survey does not publish data at the final rule (see section 1904.31(b)(2)) exposure to injury and illness is not limited requires the ‘‘using firm’’ to record the to one setting. Therefore, the Standard three-digit level. The survey is designed Industrial Classifications (SICs) 801 Offices to provide data at the four-digit level in injuries and illnesses of temporary and Clinics of Doctors of Medicine and SIC the manufacturing industries and at the workers that are ‘‘leased’’ from a 809 Miscellaneous Health and Allied three-digit level in all other industries, personnel supply service, providing that Services should not be exempt from this primarily because of budget constraints the using firm supervises these workers standard (Ex. 15: 376). that limit the amount of data the BLS on a day-to-day basis. The International Brotherhood of can collect and process. However, the The National Association of Teamsters (IBT) also argued against survey has other publication criteria Temporary and Staffing Services excluding certain health care service that make some of the data at this commented on the proposed removal of industries: detailed level unpublishable. Under the the exemption for SIC 736:
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The proposed rules also would lift the criterion for partial exemption from proposal. Even though these groups have partial exemption for employers classified recordkeeping requirements, provided the average injury and illness case rates that are under SIC Code 7363 (help supply services). same criterion is applied to all work sites. less than 75% of the private sector average, Those employers, among others, were For example, if the performance measure was the nature of the work operations performed exempted from injury and illness record 75 percent of the private sector average, then within these industries suggests that the keeping requirements in 1982 because they all industries with injury rates below this variation above and below average for had low work place injury rates. The average should be exempt. individual establishments could be much proposal to lift the exemption is based on There is sound basis for this shift in greater than with SIC Codes 52–89. An reported increased injury rates for these OSHA’s approach. It has been found in the exemption for this group of establishments employers. However, since records for the past that some industries in partially exempt could mask the existence of some very high vast majority of staffing firm employees are SIC Codes 52—89 have had high injury rates case rates within this group (Ex. 15: 199). maintained by the worksite employer as while some in the ‘‘manufacturing’’ SIC After a review of the recent BLS data, explained above, the practical effect of lifting Codes 01–51 have had low injury rates. This the exemption for staffing firms would be to has resulted in insufficient or unavailable OSHA’s own experience, and the record require them to maintain records for their injury and illness information for some of this rulemaking, OSHA has decided home office clerical and administrative facilities in SIC Codes 52–89 with high injury that it is appropriate to require firms in workers—for whom there is no evidence of rates. Inspection resources are wasted if industries within the SIC 01 through 51 increased work place illnesses or injuries. injury and illness information is not available codes to comply with OSHA’s Hence, we urge OSHA to retain the partial during the inspection of high injury rate requirements to keep records. Thus, the exemption for SIC 7363. facilities. Conversely, requiring full final rule, like the proposed rule and the If the exemption is not retained in the case recordkeeping for facilities with low injury rule published in 1982, does not exempt of SIC 7363 employers, it would be especially rates results in a facility wasting resources on firms with more than 10 employees in important for the final rules to expressly unnecessary recordkeeping. All businesses, provide, as set forth above, that there is no regardless of SIC Code, should be treated the industry divisions of agriculture, intent to impose a dual reporting equally and should have the opportunity to mining, construction, manufacturing, requirement. At least one state OSH office be exempt based on injury rates (Ex. 15: 357). wholesale trade, transportation and already has construed the proposed lifting of public utilities (SICs 01—52) from The National Automobile Dealers the partial exemption as creating an routine recordkeeping. obligation on the part of staffing firms to Association (NADA) urged OSHA to Although OSHA no longer restricts its maintain records for all of its employees, exempt truck dealerships [classified in inspection targeting schemes to including temporary employees supervised SIC 50], even though they are employers in these SICs, these by the worksite employer. This is clearly considered wholesale rather than retail industries have traditionally been, and inconsistent with the intent of the proposed establishments, because of their rule and should be clarified (Ex. 15: 333). continue to be, the focus of many of the similarity to automobile dealerships Agency’s enforcement programs. OSHA The final rule makes clear that, when [SIC 551], which are exempted: believes that it is important for larger a ‘‘leased’’ or ‘‘temporary’’ employee is NADA strongly urges OSHA to exempt employers (i.e., those with more than 10 supervised on a day-to-day basis by the truck dealerships (SIC 5012), the employees) in these industries to using firm, the using firm must enter overwhelming majority of whom are small continue to collect and maintain injury businesses as recognized by the Small that employee’s injuries and illnesses on and illness records for use by the the using firm’s establishment Log and Business Administration (SBA).* * * A limited exemption for truck dealerships is employer, employees and the other records. Injuries and illnesses government. As noted in the comments occurring to a given employee should justified under the same criteria used for automobile dealerships (Ex. 15: 280). there is a wide variation in injury/ only be recorded once, either by the On the other hand, some commenters illness rates among establishments temporary staffing firm or the using classified in these industries. Further, as firm, depending on which firm actually agreed with OSHA’s proposal to require all businesses in SICs 01–51 to keep a whole, these industries continue to supervises the temporary employees on have injury and illness rates that are a day-to-day basis. (see the discussion injury and illness records (see, e.g., Exs. 15: 170, 199, 369). The International generally higher than the private sector for § 1904.31, Covered employees, for an average and will thus benefit from the in-depth explanation of these Brotherhood of Teamsters (IBT) remarked: ‘‘IBT does not support using information that OSHA-mandated requirements.) records can provide about safety and Some commenters suggested that the same analysis of data at the three health conditions in the workplace. In OSHA should grant partial exemptions digit level of those industries in SIC 01 1998, the lost workday injury and to specific industries within SICs 01 through 51 (industries historically not illness rate for the entire private sector through 51 (agriculture, forestry and exempted from recordkeeping was 3.1. As can be seen in the following fishing; mining; construction; requirements). IBT maintains the table of lost workday injury and illness manufacturing; transportation, importance of recording of all rates by industry division, all of the communications, electric, gas and occupational injuries and illnesses’’ (Ex. covered divisions exceeded 75% of the sanitary services; and wholesale trade) 15: 369). A major utility, New England national average LWDI rate (2.325) for that had lost workday incidence rates Power, agreed: ‘‘We believe that the the private sector as a whole, while the that were below 75% of the average rate existing exemption criteria for SICs 52– exempted industry divisions had for all industries instead of limiting 89 should remain the same. Although substantially lower rates. such exemptions to industries in SICs many industries would fall within the 52–89 (see, e.g., Exs. 15: 77, 95, 184, exemption criteria in SICs 01–51, they 1998 lost 201, 357, 359, 374, 375). Typical of are still higher hazard industries workday these comments was one from the producing valuable data on injury/ Industry sector injury and Synthetic Organic Chemical illness experience’’ (Ex. 15: 170). The illness rate Manufacturers Association (SOCMA): NYNEX Corporation also agreed with SOCMA believes that the partial exemption OSHA’s proposed approach: Agriculture, forestry and fishing from recordkeeping requirements should be We are not in favor of extending the (SIC 01–09) ...... 3.9 consistent for all standard industrial concept of industry-wide recordkeeping Mining (SIC 10–14) ...... 2.9 classifications. SOCMA supports the use of exemptions to the list of three digit codes in Construction (SIC 15–17) ...... 4.0 injury rates, rather than SIC Codes, as a the group 01–51 that were identified in the Manufacturing (SIC 20–39) ...... 4.7
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1998 lost 3 years of BLS data, below 75% of the publish statistics using the new industry workday private-sector average strikes the classifications. The new system will be Industry sector injury and appropriate balance between the need phased into the nation’s various illness rate for injury and illness information on the statistical systems over the next several one hand, and the paperwork burdens years. The BLS does not expect to Transportation, communica- created by recording obligations, on the publish the first occupational injury and tions, electric, gas and sani- other. The BLS Annual Survey will, of illness rates under the new system until tary services (SIC 40–49) ..... 4.3 course, continue to provide national job- the reference year 2003. Given the lag Wholesale trade (SIC 50 & 51) 3.3 related statistics for all industries and time between the end of the year and Retail trade (SIC 52–59) ...... 2.7 all sizes of businesses. As it has done in the publication of the statistics, data for Finance, Insurance & Real Es- the past, the BLS will sample employers a full three-year period will not be tate (SIC 60–67) ...... 0.7 available before December of 2006. Services (SIC 70–87) ...... 2.4 in the partially exempt industries and ask each sampled employer to keep Because data to revise the Part 1904 (U.S. Department of Labor Press Release OSHA records for one year. In the industry exemption based on the NAIC USDL 98–494, December 16, 1999) following year, BLS will collect the system will not be available for another The problems that may be records to generate estimates of five years, OSHA has decided to update encountered by exempting additional occupational injury and illness for firms the industry exemption list now based industries are exemplified by an in the partially exempt industries and on the most recent SIC-based analysis of the petrochemical industry size classes, and combine those data information available from BLS for the and the manufacturers of chemicals and with data for other industries to years 1996, 1997 and 1998. OSHA will petroleum products, classified in SICs generate estimates for the entire U.S. conduct a future rulemaking to update 28 and 29. If the industry exemption private sector. These procedures ensure the industry classifications to the NAIC were applied to these industries, injury the integrity of the national statistics on system when BLS publishes injury and and illness records would not be occupational safety and health. illness data that can be used to make required for highly specialized plants The list of partially exempted appropriate industry-by-industry that make industrial inorganic industry sectors in this rule is based on decisions. The proposal inquired whether OSHA chemicals, plastics materials and the current (1987) revision of the SIC should adopt a procedure for adjusting synthetic resins, pharmaceuticals, manual. The Office of Management and the industry exemption lists as the industrial organic chemicals, and Budget (OMB) is charged with maintaining and revising the system of injury and illness rates of various petroleum refineries. These industries industries change over time. A number have relatively low occupational injury industrial classification that will replace the SIC. The new system is used by U.S. of commenters urged OSHA to update and illness rates, but they are not truly the exemption list periodically (see, e.g., low-hazard industries. All of these statistical agencies (including the BLS). Under the direction of OMB, the U.S. Exs. 15: 27, 87, 170, 181, 199, 272, 280, facilities make, use and handle highly 359, 374, 375, 392, 407). Some toxic chemicals and consequently have government has adopted a new, comprehensive system of industrial commenters suggested various time the potential for both acute periods, such as annually (Ex. 15: 374), overexposure and chronic exposures of classification that will replace the SIC. The new system is called the North every 3 years (see, e.g., Exs. 15: 87, 181, their employees to these substances. 199, 407), every 5 years (see, e.g., Exs. These industries, for example, are the American Industrial Classification System (NAICS). NAICS will harmonize 15: 170, 181, 262, 272, 359, 375), or industries to which OSHA health every 5 to 10 years (Ex. 15: 392). the U.S. classification system with those standards, such as the benzene, ethylene Southwestern Bell Telephone suggested of Canada and Mexico and make it oxide, and methylene chloride that the list should be modified easier to compare various economic and standards, apply. Because occupational whenever changes in the injury and labor statistics among the three illnesses, particularly chronic illnesses, illness rates warrant a change (Ex. 15: countries. Several commenters are notoriously underreported (see, e.g., 27). In the opinion of the National expressed concern about this change in Exs. 15: 407, 4, 5), the LWDI rates for Safety Council, ‘‘How often the SIC industrial classification systems (see, these industries do not accurately reflect exemption should be updated depends e.g., Exs. 15: 70, 182, 183, 379). For the level of hazard present in these on how well and how quickly OSHA example, the American Society of Safety facilities. In addition, these types of can communicate changes in the exempt facilities are prone to major safety and Engineers (ASSE) stated: industry list to those affected. The health problems, including explosions, The Society is concerned with the recent Council recommends updating the list toxic releases and other events that Office of Management Budget (OMB), every 3 to 5 years’’ (Ex. 15: 280). often lead to fatalities and serious proposal to change the Economic Several commenters, however, injuries. The safety and health problems Classification Policy from the Standard opposed frequent updating of the SIC of these facilities are not limited to Industrial Classification System to the North American Industry Classification System. We exemption list. For example, the workers, but extend to hazards posed to recommend that OSHA study what the effect Orlando Safety and Health Customer the general public. In addition, OSHA would be of promulgating a new regulation Council stated: ‘‘Changes to SIC frequently inspects these facilities partially based on SIC codes when these exemptions should be limited to a because of their potential for codes could be potentially replaced/revised minimum of every 5 years. This would catastrophic releases, fires, and with a new classification system (Ex. 15: reduce confusion’’ (Ex. 15: 97). The explosions, and the Part 1904 injury and 182). National Institute for Occupational illness records have been extremely Although the NAIC industry Safety and Health (NIOSH) generally useful for this purpose. classification system has been formally opposed industry exemptions but The Agency finds that continuing, adopted by the United States, the recommended that, if they were and improving on, the Agency’s individual U.S. statistical agencies continued, they be updated as follows: longstanding approach of partially (including the BLS) are still converting If OSHA continues to provide this exempting those industries in SIC codes their statistical systems to reflect the exemption for low injury rate SICs, 52–89 that have DART rates, based on new codes and have not begun to NIOSH
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recommends that the list of partially exempt approved plans do not need to exempt contains provisions directing employers SICs be placed in an Appendix. Because the employers from recordkeeping, either by to keep records of the recordable injury and illness experience of an industry employer size or by industry occupational injuries and illnesses can change over time (e.g., SIC 58 and SIC classification, as the final Federal OSHA experienced by their employees, 84 had injury rates at or below 75% of the private sector average in 1983, but above rule does, although they may choose to describes the forms the employer must 75% of the private sector average in 1990 and do so. For example, States with use, and establishes the criteria that 1992), OSHA should periodically review and approved plans may require records employers must follow to determine modify the list of partially exempt industries. from a wider universe of employers than which work-related injury and illness NIOSH recommends that the criteria for Federal OSHA does. These States cases must be entered onto the forms. partial exemptions be placed in the cannot exempt more industries or Subpart C contains sections 1904.4 regulatory text, while placing the list of employers than Federal OSHA does, through 1904.29. partially exempt industries in an Appendix however, because doing so would result Section 1904.4 provides an overview as noted so that the list could be updated in a State rule that is not as effective as of the requirements in Subpart C and periodically by administrative means rather than by changing the regulation. In addition the Federal rule. A larger discussion of contains a flowchart describing the to the partial exemption criteria, the the effect on the State plans can be recording process. How employers are regulatory text should specify the interval (in found in Section VIII of this preamble, to determine whether a given injury or years) for reviewing and revising the list of State Plans. illness is work-related is set out in those industries that qualify. NIOSH section 1904.5. Section 1904.6 provides recommends an interval of 3 years for the Recordkeeping Under the Requirements the requirements employers must follow review and revision process (Ex. 15: 407). of Other Federal Agencies to determine whether or not a work- OSHA agrees with those commenters Section 1904.3 of the final rule related injury or illness is a new case or who favored regular updating of the SIC provides guidance for employers who the continuation of a previously code exemption list. For the list to focus are subject to the occupational injury recorded injury or illness. Sections Agency resources most effectively on and illness recording and reporting 1904.7 through 1904.12 contain the the most hazardous industries, it must requirements of other Federal agencies. recording criteria for determining which be up-to-date. Industries that are Several other Federal agencies have new work-related injuries and illnesses successful in lowering their rates to similar requirements, such as the Mine must be recorded on the OSHA forms. levels below the exemption threshold Safety and Health Administration Section 1904.29 explains which forms should be exempted, while those whose (MSHA), the Department of Energy must be used and indicates the rates rise sufficiently to exceed the (DOE), and the Federal Railroad circumstances under which the criterion should receive additional Administration (FRA). The final rule at employer may use substitute forms. section 1904.3 tells the employer that attention. Unfortunately, the change in Section 1904.4 Recording Criteria industry coding systems from the OSHA will accept these records in place Section 1904.4 of the final rule Standard Industrial Classification (SIC) of the employer’s Part 1904 records contains provisions mandating the system to the North American Industry under two circumstances: (1) if OSHA recording of work-related injuries and Classification (NAIC) system will has entered into a memorandum of illnesses that must be entered on the require a future rulemaking to shift to understanding (MOU) with that agency OSHA 300 (Log) and 301 (Incident that system. Therefore, there is no value that specifically accepts the other Report) forms. It sets out the recording in adding an updating mechanism at agency’s records, the employer may use requirements that employers are this time. The automatic updating issue them in place of the OSHA records, or required to follow in recording cases. will be addressed in the same future (2) if the other agency’s records include the same information required by Part Paragraph 1904.4(a) of the final rule rulemaking that addresses the NAIC mandates that each employer who is system conversion. 1904, OSHA would consider them an acceptable substitute. required by OSHA to keep records must Partial Exemptions for Employers Under OSHA received very few comments record each fatality, injury or illness the Jurisdiction of OSHA-Approved on the issue of duplicate recordkeeping that is work-related, is a new case and State Occupational Safety and Health under different agency rules. The not a continuation of an old case, and Plans Fertilizer Institute (TFI) recommended meets one or more of the general Robert L. Rowan, Jr. expressed a that OSHA make the data mandated by recording criteria in section 1904.7 or concern that the OSHA State-Plan States OSHA and MSHA more consistent (Ex. the additional criteria for specific cases could have differing industry 15:154). However, MSHA and OSHA found in sections 1904.8 through exemptions from those applying to have different recordkeeping 1904.12. Paragraph (b) contains federal OSHA states, commenting: requirements because the agencies’ provisions implementing this basic mandate and uses of the data differ. The requirement. In regard to the note in OSHA’s Coverage approach OSHA takes in the final rule, Paragraph 1904.4(b)(1) contains a and Exemption Table that ‘‘some states with which is to continue to accept data kept table that points employers and their their own occupational safety and health recordkeepers to the various sections of programs do not recognize the federal record by employers under other Federal keeping exemptions’’. I am deeply requirements if the two federal agencies the rule that determine which work- concerned. I would prefer that all have made an agreement to do so, or if related injuries and illnesses are to be jurisdictions enforce the same requirements. the data are equivalent to the data recorded. These sections lay out the This will be confusing and create needless required to be kept by Part 1904, requirements for determining whether problems for businesses with sites in appears to be the best way to handle the an injury or illness is work-related, if it numerous states if requirements are not problem raised by the TFI. is a new case, and if it meets one or enforced equally (Ex. 15: 62). more of the general recording criteria. In For those States with OSHA-approved Subpart C. Recordkeeping Forms and addition, the table contains a row State plans, the state is generally Recording Criteria addressing the application of these and required to adopt Federal OSHA rules, Subpart C of the final rule sets out the additional criteria to specific kinds of or a State rule that is at least as effective requirements of the rule for recording cases (needlestick and sharps injury as the Federal OSHA rule. States with cases in the recordkeeping system. It cases, tuberculosis cases, hearing loss
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cases, medical removal cases, and purposes and makes clear that the work condition, or substance that is peculiar musculoskeletal disorder cases). The environment includes the physical to the employment environment. For table in paragraph 1904.4(b)(1) is locations where employees are working example, an employee may trip for no intended to guide employers through as well as the equipment and materials apparent reason while walking across a the recording process and to act as a used by the employee to perform work. level factory floor; be sexually assaulted table of contents to the sections of Paragraph (b)(2) lists the exceptions to by a co-worker; or be injured Subpart C. the presumption of work-relatedness accidentally as a result of an act of Paragraph (b)(2) is a decision tree, or permitted by the final rule; cases violence perpetrated by one co-worker flowchart, that shows the steps involved meeting the conditions of any of the against a third party. In these and in determining whether or not a listed exceptions are not considered similar cases, the employee’s job-related particular injury or illness case must be work-related and are therefore not tasks or exposures did not create or recorded on the OSHA forms. It recordable in the OSHA recordkeeping contribute to the risk that such an injury essentially reflects the same information system. would occur. Instead, a causal as is in the table in paragraph This section of the preamble first connection is established by the fact 1904.4(b)(1), except that it presents this explains OSHA’s reasoning on the issue that the injury would not have occurred information graphically. of work relationship, then discusses the but for the conditions and obligations of The former rule had no tables or exceptions to the general presumption employment that placed the employee flowcharts that served this purpose. and the comments received on the in the position in which he or she was However, the former Recordkeeping exceptions proposed, and then presents injured or made ill. Guidelines (Ex. 2) contained several OSHA’s rationale for including The theory of causation OSHA should flowcharts to help employers make paragraphs (b)(3) through (b)(7) of the require employers to use in determining decisions and understand the overall final rule, and the record evidence the work-relationship of injuries and recording process. The proposed rule pertaining to each. illnesses was perhaps the most included a flowchart as Appendix C to Section 8(c)(2) of the OSH Act directs important issue raised in this Part 1904—Decision Tree for Recording the Secretary to issue regulations rulemaking. Put simply, the issue is Occupational Injuries and Illnesses. requiring employers to record ‘‘work- essentially whether OSHA should view OSHA received very few comments in related’’ injuries and illnesses. It is cases as being work-related under a response to proposed Appendix C, and implicit in this wording that there must ‘‘geographic’’ or ‘‘positional’’ theory of no commenters objected to the decision be a causal connection between the causation, or should adopt a more tree concept. The commenters who employment and the injury or illness restrictive test requiring that the discussed the decision tree supported it, before the case is recordable. For most occupational cause be quantified as and many suggested that it should be types of industrial accidents involving ‘‘predominant,’’ or ‘‘significant,’’ or that incorporated into the computer software traumatic injuries, such as amputations, the injury or illness result from fractures, burns and electrocutions, a OSHA develops to assist employers activities uniquely occupational in causal connection is easily determined with keeping the records (see, e.g., Exs. nature. This issue generated substantial because the injury arises from forces, 51, 15: 38, 67, 335, 407, 438). comment during this rulemaking, and equipment, activities, or conditions In the final rule, OSHA has decided the Agency’s evaluation of the various inherent in the employment to include the flowchart because of its alternative tests, and its decision to environment. Thus, there is general usefulness in depicting the overall continue its historic test, are discussed agreement that when an employee is recording process. OSHA has not below. labeled the flowchart non-mandatory, as struck by or caught in moving some commenters (see, e.g., Ex. 15: 335) machinery, or is crushed in a The final rule’s test for work-relationship suggested, because the recording of construction cave-in, the case is work- and its similarity to the former and proposed related. It is also accepted that a variety rules.—The final rule requires that employers injuries and illnesses is a mandatory consider an injury or illness to be ‘‘work- requirement and labeling the flowchart of illnesses are associated with exposure related’’ if an event or exposure in the work as non-mandatory could be confusing. to toxic substances, such as lead and environment either caused or contributed to cadmium, used in industrial processes. Section 1904.5 Determination of Work- the resulting condition or significantly Accordingly, there is little question that aggravated a pre-existing injury or illness. Relatedness cases of lead or cadmium poisoning are Work relatedness is presumed for injuries This section of the final rule sets out work-related if the employee is exposed and illnesses resulting from events or the requirements employers must follow to these substances at work. exposures occurring in the work in determining whether a given injury On the other hand, a number of environment, unless an exception in or illness is work-related. Paragraph injuries and illnesses that occur, or § 1904.5(b)(2) specifically applies. 1904.5(a) states that an injury or illness manifest themselves, at work are caused Under paragraph 1904.5(b)(1), the must be considered work-related if an by a combination of occupational ‘‘work environment’’ means ‘‘the event or exposure in the work factors, such as performing job-related establishment and other locations where environment caused or contributed to bending and lifting motions, and factors one or more employees are working or the injury or illness or significantly personal to the employee, such as the are present as a condition of their aggravated a pre-existing injury or effects of a pre-existing medical employment. The work environment illness. It stipulates that, for OSHA condition. In many such cases, it is includes not only physical locations, recordkeeping purposes, work likely that occupational factors have but also equipment or materials used by relationship is presumed for such played a tangible role in causing the the employee during the course of his or injuries and illnesses unless an injury or illness, but one that cannot be her work.’’ exception listed in paragraph readily quantified as ‘‘significant’’ or The final rule’s definition of work- 1904.5(b)(2) specifically applies. ‘‘predominant’’ in comparison with the relationship is essentially the same as Implementation requirements are set personal factors involved. that in both the former and proposed forth in paragraph (b) of the final rule. Injuries and illnesses also occur at rules except for the final rule’s Paragraph (b)(1) defines ‘‘work work that do not have a clear requirement that the work event or environment’’ for recordkeeping connection to a specific work activity, exposure ‘‘significantly’’ aggravate a
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pre-existing injury or illness. The employer abatement (see, e.g., Exs. 22, If OSHA’s primary concern is to address Guidelines interpreting the former rule 15: 13, 27, 34, 38, 52, 60, 69, 71, 72, 82, those workplace hazards or risks that cause stated that 97, 102, 108, 109, 122, 136, 137, 141, or may cause employee injury/illness then the agency should confine recordability to Work-relationship is established under the 146, 147, 149, 152, 154, 159, 163, 169, 171, 174, 176, 181, 197, 198, 199, 200, those injuries and illnesses that are directly OSHA recordkeeping system when the injury caused by a workplace event or exposure. or illness results from an event or exposure 201, 214, 218, 224, 230, 231, 238, 239, This approach, in turn, will focus the in the work environment. The work 260, 262, 265, 266, 272, 273, 277, 278, employer’s attention on those unsafe environment is primarily composed of: (1) 287, 288, 290, 297, 301, 302, 303, 307, workplace conditions that need to be The employer’s premises, and (2) other 313, 317, 318, 330, 335, 346, 352, 353, corrected to protect all workers exposed to or locations where employees are engaged in 370, 375, 382, 378, 383, 384, 386, 388, at risk from the unsafe conditions. work-related activities or are present as a 396, 401, 402, 404, 405, 425, 426, 430). condition of their employment. (Ex. 2 at p. The National Federation of Some commenters (see, e.g., Exs. 15: Independent Business (Ex. 15: 304) 32). 185, 199, 205, 332, 338, 349, 354, 358, supported Alternative 1 ‘‘because under The proposed rule also contained a 375, 421, 440) offered a slight such a system evidence of non-work- similar definition of ‘‘work-related’’ and modification on Alternative 2. They related factors is excluded thus the ‘‘work environment.’’ The only suggested that using a term other than decision-making process is dramatically significant difference between the predominant, such as ‘‘substantial’’ or simplified and the tally is very proposed and the final rule definitions ‘‘significant,’’ would avoid the need to credible.’’ The Painting and Decorator is that the proposed rule also would not define ‘‘predominant’’ as a percentage. Contractors of America (Ex. 15: 433) have required a ‘‘significant’’ For example, United Technologies (Ex. added: ‘‘[T]his approach is also aggravation of a pre-existing condition 15: 440) opposed ‘‘placing a percentage consistent with OSHA’s intent (and the before it became recordable; under the on the degree of contribution’’ because Congressional mandate in the proposal, any aggravation would have doing so would not be practical. Paperwork Reduction Act of 1995) to been sufficient (see 61 FR 4059). Further, according to this commenter, ‘‘work relationship should be reduce compliance burdens as this The Alternative Tests for Work- established in cases where the would be the simplest method for Relationship workplace contributed substantially to employers to apply.’’ Although OSHA proposed to continue the injury or illness, as determined by Comments on the ‘‘Unique its existing definition of work- an occupational physician.’’ Arguing Occupational Activities’’ Test relationship, it sought comment on the along the same lines, the American Some commenters favored a closely following three alternative tests: Petroleum Institute (API) (Ex. 15: 375) related test for work relationship that 1. Exclude cases with any evidence of stated that it supported ‘‘in principle the would place primary emphasis on the non-work etiology. Only cases where work-relatedness concept presented by nature of the activity that the employee the work event or exposure was the sole OSHA as Alternative 2, but feels was engaged in when injured or made causative factor would be recorded; ‘‘predominant’’ might be too difficult to 2. Record only cases where work was administer as a fundamental criterion. ill. This test is referred to the Legal the predominant causative factor; API proposes that work-relatedness Authority section and in this preamble 3. Record all cases where the work should exist when an event or exposure section as the ‘‘unique occupational event or exposure had any possibility of in the workplace is a significant factor activities’’ test. Its supporters argued contributing to the case (emphasis resulting in an injury or illness. * * *’’ that whether an injury or illness occurs added). (61 FR 4045) Organization Resource Counselors, Inc. or manifests itself at work is less (Ex. 15: 358) added: ‘‘[T]he important than whether or not the harm Comments on the ‘‘Quantified has been caused by activities or Occupational Cause’’ Test Congressional intent in drafting these sections was to require the collection of processes peculiar to the workplace. The first two alternative tests work-related information about The AISI argued that: described in the proposal would have significant work-related injuries and [I]t is clear that Congress intended OSHA’s required the employer to quantify the illnesses.’’ The General Electric authority to regulate to be limited to contribution of occupational factors as Company (Ex. 15: 349) said that ‘‘OSHA ‘‘occupational hazards’’ and conceived of compared to that of personal factors. needs to allow the facility the flexibility such hazards as ‘‘processes and materials’’ These tests are referred to in the Legal to record only those cases that are peculiar to the workplace. * * * Congress Authority section, and in this preamble, did not give OSHA the authority to regulate ‘‘more likely than not’’ related to hazards if they ‘‘grow out of economic and as the ‘‘quantified occupational cause’’ workplace exposure or tasks. This tests. Of these tests, Alternative 2— social factors which operate primarily determination can be made during the outside the workplace. The employer neither record only injuries and illnesses incident investigation. A good test of controls nor creates these factors as he predominantly caused by occupational work-relatedness is whether the injury controls or creates work processes and factors—received the most comment. would have been prevented by full materials.’’ Congress was concerned with Typical of these comments were those compliance with the applicable OSHA dangerous conditions peculiar to the of the Dow Chemical Company, which standard.’’ workplace; it did not have in mind the expressed the view of many in industry Proposed Alternative 1, which would recording of illnesses simply because they that ‘‘[a] system that labels an injury or have required the recording only of appear at work (internal citations omitted) illness attributable to the workplace cases where work was the sole cause, (Ex. 15: 395). even though the workplace contribution was also supported by a large number of Dow Chemical made a similar point may be insignificant does not lead to an commenters (see, e.g., Exs. 15: 9, 39, 87, in arguing that the criteria for effective, credible or accurate program’’ 95, 119, 123, 145, 151, 152, 179, 180, determining work-relationship should (Ex. 15: 335). Other commenters stated 183, 185, 204, 205, 225, 229, 234, 242, include whether the activity the that recording only those cases where 259, 263, 269, 270, 304, 341, 363, 377, employee was engaged in at the time of work was the predominant cause would 389, 393, 414, 433, 443). Typical of this the injury or onset of illness was for the improve the system by focusing view was the comment of the American direct benefit of the employer or was a attention on cases that are amenable to Health Care Association (Ex. 15: 341): required part of the job (Ex. 15: 335B).
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According to Dow, the activity-based geared toward educating the workforce to The Geographic Presumption Is test would be more accurate than the recognize and report symptoms of Supported by the Statute geographic presumption (OSHA’s overexposure, presumably for disease One important distinction between prevention. AIHA does not want this historic test) because it would omit the geographic test for causation and the information to be de-emphasized or lost (Ex. injuries due to hazards beyond the alternative causation tests is that the 15: 153). employer’s control: geographic test treats a case as work- Examples to illustrate this point include related if it results in whole or in part Comments on the ‘‘Mere Possibility’’ the employee who during his break attempts from an event or exposure occurring in Test to remove a plastic insert in a condiment the work environment, while the container with a knife and ends up cutting Alternative 3 described in the alternative tests would only cover cases himself which requires three stitches. This in which the employer can determine activity, while it happened on company proposal would have required that an grounds, was not for the direct benefit of the injury or illness be considered work the degree to which work factors played company nor a requirement of his job, and related ‘‘if the worker ever experienced a causal role. Reliance on the geographic there was no way for the employer to prevent a workplace event or exposure that had presumption thus covers cases in which it (Ex. 15: 335B). any possibility of playing a role in the an event in the work environment is case.’’ This ‘‘mere possibility’’ test is believed likely to be a causal factor in Comments on OSHA’s Historical Test substantially different than OSHA’s an injury or illness but the effect of A significant number of commenters historical definition of work- work cannot be quantified. It also covers supported OSHA’s long-standing test in relationship, which required that the cases in which the injury or illness is which work factors must be a cause, but injury or illness have a tangible not caused by uniquely occupational not necessarily a ‘‘significant’’ or connection with the work environment. activities or processes. These cases may arise, for example, when: (a) an accident ‘‘predominant’’ cause, and a geographic Although some commenters supported at work results in an injury, but the presumption applies if ‘‘events or Alternative 3, apparently on the cause of the accident cannot be exposures’’ in the work environment assumption that it was in fact OSHA’s determined; (b) an injury or illness either caused or contributed to the proposed definition, analysis of these results from an event that occurs at resulting condition, or aggravated a pre- comments suggests that the parties existing condition (see, e.g., Exs. 15: 74, work but is not caused by an activity involved recognized that an injury must peculiar to work, such as a random 153, 362, 369, 394, 407, 418, 429). For have a real, not merely theoretical, link example, NIOSH (Ex. 15: 407) favored assault or an instance of horseplay; (c) to work to be work-related. No an injury or illness results from a this approach because ‘‘[o]verreported commenter suggested a rationale for cases can be identified and accounted number of factors, including both recording cases having only a occupational and personal causes, and for in data analysis, in contrast to the theoretical or speculative link to work. other alternatives which stress the relative contribution of the specificity at the expense of sensitivity OSHA’s Reasons for Rejecting the occupational factor cannot be readily and would result in unreported cases.’’ Alternative Tests for Work-Relationship measured; or (d) a pre-existing injury or The AFL–CIO argued that: illness is significantly aggravated by an OSHA has given careful consideration event or exposure at work. * * * [c]apturing all workplace illnesses to all of the comments and testimony As discussed in the Legal Authority and injuries, even those for which the received in this rulemaking and has section, the statute’s language and the predominant cause cannot be proven to be Legislative History support a definition work-related, can lead to early recognition of decided to continue to rely in the final problems and abatement of hazardous rule on the Agency’s longstanding of work-relationship that encompasses conditions. Our experience has shown us definition of work-relationship, with all injuries and illnesses resulting from that when comprehensive records of all one modification. That modification is harmful events and exposures in the possible cases are kept, patterns of injury and the addition of the word ‘‘significantly’’ work environment, not only those illness emerge, enabling us to target problem before ‘‘aggravation’’ in the definition of caused by uniquely occupational areas/factors that previously may not have work-relatedness set forth in final rule activities or processes. A number of been associated with that specific work commenters acknowledged the broad environment. The inclusion of all cases will section 1904.5. The relevant portion of the section now states ‘‘an injury or purposes served by OSHA’s lead to prevention strategies that can reduce recordkeeping requirements and urged the risk of serious illness and injury to illness is to be considered work-related workers. Inclusion of all cases that have a if an event or exposure in the work continued reliance on the former rule’s workplace link will also assist in the environment either caused or definition of ‘‘work-related’’ (see, e.g., recognition of diseases that are caused by contributed to the injury or illness or Exs. 15: 65, 198, 350, 369, 418). For synergistic effects. (Ex. 15: 418) significantly aggravated a pre-existing example, the AFL–CIO noted, ‘‘[o]ur The American Industrial Hygiene injury or illness’’ (emphasis added). experience has shown us that when Association (AIHA) argued that comprehensive records of all possible In the final rule, OSHA has restated cases are kept, patterns of injury and continuing OSHA’s historic approach to the presumption of work-relationship to work-relationship is particularly illness emerge, enabling us to target clarify that it includes any non-minor problem areas/factors that previously important in the case of occupational injury or illness occurring as a result of illnesses because: may not have been associated with that an event or exposure in the work specific work environment’’ (Ex. 15: Occupational illnesses differ from injuries environment, unless an exception in 418) (emphasis added). in that minor or early symptoms of illness are paragraph 1904.5(b)(2) specifically On the other hand, those commenters often an important indicator of a more applies. OSHA believes that the final favoring the ‘‘quantified occupational serious disease state, while a minor injury rule’s approach of relying on the usually goes away without further cause’’ test or the ‘‘unique occupational developments. By the time serious disabling geographic presumption, with a limited activity’’ test maintained that injury and symptoms have surfaced. a disease may be number of exceptions, is more illness records have more limited very far progressed and irreversible. Training appropriate than the alternative functions. Some commenters argued courses such as Hazard Communication are approaches, for the following reasons. that because OSHA’s mission is to
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eliminate preventable occupational environment and the injuries and these alternative tests in the final injuries and illnesses, the determination illnesses sustained by employees. For recordkeeping rule. of work-relationship must turn on example, the records kept by employers The most serious problem is that there whether the case could have been under Part 1904 produced useful data is no reliable, objective method of prevented by the employer’s safety and on workplace assaults and murders, measuring the degree of contribution of health program. The Dow Chemical which has permitted OSHA, employers, occupational factors. The absence of a Company expressed this view as and others to focus on the issue of uniform methodology for assessing the follows: violence in the workplace. This has led, extent of work contribution caused [T]he goal of this recordkeeping system in turn, to efforts to reduce the number several industry commenters to endorse should be to accurately measure the of such cases by implementing the former rule’s position on work- effectiveness of safety and health programs in preventive measures. Although this relationship. For example, the American the workplace. Activities where safety and issue was not anticipated by the 1904 Automobile Manufacturers Association health programs could have no impact on system, the broad collection of injury, (AAMA) noted that an ideal system preventing or mitigating the condition should illness and fatality data allowed useful would focus on cases in which the work not be logged and included in the Log and information to be extracted from the environment was a major contributor to Summary nor used by OSHA to determine its 1904 data. As discussed in the Legal inspection schedule. If the event was caused the injury or illness. Nevertheless, the by something beyond the employer’s control Authority section, these purposes AAMA argued against adopting the it should not be considered a recordable militate in favor of a general predominant cause test, stating: ‘‘until a event that calls into question a facility’s presumption of work-relationship for system is developed in which safety and health program. injuries and illnesses that result from employers can measure objectively and . . . Credibility in this regulation rests on events or exposures occurring in the consistently whether or not the work whether the recorded data accurately reflects work environment, with exceptions for environment is a major contributor to a the safety and health of the workplace. specific types of cases that may safely be workplace injury or illness, we favor Including events where the workplace had excluded without significantly virtually no involvement undermines the continuing the definition of work- credibility of the system and results in impairing the usefulness of the national relationship as it currently exists’’ (Ex. continued resistance to this regulation (Ex. job-related injury and illness database. 15: 409). The Ford Motor Co. also 15: 335B). At the same time, OSHA is sensitive argued in favor of continuing the to the concerns of some commenters existing definition: The law firm of Constangy, Brooks that the injury and illness records are and Smith, LLC, urged OSHA to adopt perceived as a measure of the Ford feels that the work environment the proposal’s second alternative should be a major contributor to an injury or effectiveness of the employer’s illness for the case to be considered work- (‘‘predominant cause’’) because cases compliance with the Act and OSHA that are ‘‘predominantly caused by related. However, we are unsure how standards. OSHA emphasizes that the employers can measure objectively, workplace conditions’’ are the ones recording of an injury or illness on the consistently and equally whether the work most likely to be preventable by Log does not mean that a violation has environment is a major contributor. The use workplace controls. Their comment occurred. The explanatory materials of a checklist by a health care provider to stated, ‘‘[s]ince OSHA’s ultimate accompanying the revised OSHA Forms determine whether the work environment mission is the prevention of workplace 300 and 301 contain the following was a major contributor for a case to be considered work-related would be overly injuries and illnesses, it is reasonably statement emphasizing this point: necessary to require recording only burdensome and subjective. Until a system is ‘‘Cases listed on the Log of Work- developed by which employers can measure when the injury or illness can be Related Injuries and Illnesses are not objectively, consistently and equally whether prevented by the employer’’ (Ex. 15– necessarily eligible for Workers or not the work environment is a major 345). Other commenters opposed the Compensation or other insurance contributor to a workplace injury or illness, recording of cases in which the injury benefits. Listing a case on the Log does we favor continuing the definition of work or illness arises while the employee is not mean that the employer or worker relationship as it currently exists (Ex. 15: on break, in the rest room, or in storage was at fault or that an OSHA standard 347). areas located on the employer’s was violated.’’ Based on a review of the record, premises. These commenters claimed OSHA agrees with those commenters that use of the geographic presumption The Alternative Tests for Work- who supported a continuation of the Relationship Will Likely Lead Both to results in recording many injuries and Agency’s prior practice with regard to Inconsistent Determinations and to illnesses that have little or no reliance on the geographic presumption Underreporting of Cases relationship to the work environment for determinations of work-relatedness. (see, e.g., Exs. 15: 231, 423, 424G). Under the first two alternative tests OSHA finds that this approach, which OSHA believes that the views of Dow for work-relationship described in the includes all cases with a tangible Chemical and others in support of the proposal, the decision on work- connection with work, better serves the proposal’s alternative tests for work- relationship would depend upon the purposes of recordkeeping. Accordingly, relationship reflect too narrow a reading degree to which the injury or illness the final rule relies on the geographic of the purposes served by the OSHA resulted from distinctly occupational presumption, with a few limited injury and illness records. Certainly, causes. Whether labeled ‘‘sole cause,’’ exceptions, as the recordkeeping one important purpose for ‘‘predominant cause,’’ or ‘‘significant system’s test for work-relationship. recordkeeping requirements is to enable cause,’’ these alternative tests would employers, employees, and OSHA to require the employer, in each case, to Who Makes the Determination? identify hazards that can be prevented distinguish between the occupational In addition to the definition of work- by compliance with existing standards and non-occupational causal factors relatedness, commenters addressed the or recognized safety practices. However, involved, and to weigh the contribution issue of who should make the the records serve other purposes as well, of the occupational factor or factors. determination of work-relatedness in a including providing information for Requiring the occupational cause to be given case (see, e.g., Exs. 15: 27, 35, 102, future scientific research on the nature quantified in this way creates practical 105, 127, 193, 221, 281, 305, 308, 324, of causal connections between the work problems militating against the use of 325, 341, 345, 347, 385, 387, 390, 392,
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397, 420). Some commenters believed Because the checklist asks for medical illnesses that occur or manifest in the that a trained medical professional information, the employer would find itself work environment, but have been should make this determination, while in conflict with the confidentiality identified by OSHA, based on its years others argued that the employer should requirements imposed under the Americans of experience with recordkeeping, as With Disabilities Act. 29 C.F.R. § 1630.14. make the ultimate decision about the Moreover, a mandatory checklist would be cases that do not provide information work-relatedness of occupational unnecessarily time-consuming and useful to the identification of injuries and illnesses. Some supported subjective. Finally, we note that inclusion of occupational injuries and illnesses and the use of the work-relatedness checklist item 5(b), ‘‘possible work contribution,’’ would thus tend to skew national injury for specific disorders included by OSHA biases the checklist in favor of work- and illness statistics. These eight in the proposal. For example, the relatedness. In the absence of a clear exceptions are the only exceptions to American Public Health Association indication of whether or not the workplace the presumption permitted by the final (Ex. 15: 341) commented: caused or substantially caused the condition, rule. asking a provider or employee if it were (i) Injuries or illnesses will not be We also believe that work-relatedness ‘‘possible’’ that the workplace contributed to considered work-related if, at the time of should only be established by the or aggravated the injury/illness invites an documented determination of a qualified affirmative response. the injury or illness, the employee was health care provider with specific training present in the work environment as a related to the type of case reported. OSHA’s OSHA has concluded that requiring member of the general public rather checklist for determining work- employers to rely on a health care than as an employee. This exception, relatedness. . . .should be used and professional for the determination of the which is codified at paragraph expanded to include potentially recordable work-relatedness of occupational 1904.5(b)(2)(i), is based on the fact that cases, i.e., excluding first aid treatment. injuries and illnesses would be no employment relationship is in place The Dow Corning Corporation (Ex. 15: burdensome, impractical, and at the time an injury or illness of this 374) argued that the employer should unnecessary. Small employers, in type occurs. A case exemplifying this make the determination, albeit with the particular, would be burdened by such exception would occur if an employee assistance of a health care professional: a provision. Further, if the professional of a retail store patronized that store as is not familiar with the injured worker’s a customer on a non-work day and was This assessment process should include job duties and work environment, he or interviews with knowledgeable people injured in a fall. This exception allows regarding the duties and hazards of the she will not have sufficient information the employer not to record cases that employee’s job tasks in addition to the to make a decision about the work- occur outside of the employment employee interview. If inaccurate or relatedness of the case. OSHA also does relationship when his or her misleading information is given to the health not agree that health care professional establishment is also a public place and care provider improper or inaccurate involvement is necessary in the a worker happens to be using the facility conclusions may be reached with regard to overwhelming majority of cases. as a member of the general public. In the incident cause. A health care provider’s Employers have been making work- these situations, the injury or illness has assessment of work-relationship is typically relatedness determinations for more nothing to do with the employee’s work viewed as difficult to overcome, even if it is than 20 years and have performed this made with incomplete information. We or the employee’s status as an employee, recommend that the health care provider’s responsibility well in that time. This and it would therefore be inappropriate checklist be used as only one input in the does not mean that employers may not, for the recordkeeping system to capture work-relationship decision and that the final if they choose, seek the advice of a the case. This exception was included decision should still rest with the employer. physician or other licensed health care in the proposal, and OSHA received no Deere and Company (Ex. 15: 253) professional to help them understand comments opposing its adoption. opposed leaving the determination of the link between workplace factors and (ii) Injuries or illnesses will not be work-relatedness to a health care injuries and illnesses in particular cases; considered work-related if they involve symptoms that surface at work but professional: it simply means that OSHA does not believe that most employers will need to result solely from a non-work-related We strongly disagree with any provision avail themselves of the services of such event or exposure that occurs outside that would allow a physician to make a final a professional in most cases. the work environment. OSHA’s determination of work-relatedness. The only Accordingly, OSHA has concluded recordkeeping system is intended only time a physician should have any input into the actual determination of work-relatedness that the determination of work- to capture cases that are caused by is if they are knowledgeable of the relatedness is best made by the conditions or exposures arising in the employer’s workplace environment and the employer, as it has been in the past. work environment. It is not designed to specific job tasks performed by employees. Employers are in the best position to capture cases that have no relationship Frequently, physicians will state that a obtain the information, both from the with the work environment. For this condition was caused by an employee’s job employee and the workplace, that is exception to apply, the work without having any knowledge of the specific necessary to make this determination. environment cannot have caused, tasks being performed by the employee. This Although expert advice may contributed to, or significantly is an unacceptable usurpation of employers’ occasionally be sought by employers in aggravated the injury or illness. This rights and we oppose any attempt to codify exception is consistent with the position it in a federal regulation. particularly complex cases, the final rule provides that the determination of followed by OSHA for many years and However, several participants work-relatedness ultimately rests with reiterated in the final rule: that any job- opposed making any work-relatedness the employer. related contribution to the injury or checklist mandatory (such as the one illness makes the incident work-related, OSHA proposed) (see, e.g., Exs. 15: 68, The Final Rule’s Exceptions to the and its corollary—that any injury or 170, 201, 283, 434). The American Geographic Presumption illness to which work makes no actual Trucking Association’s comment (Ex. Paragraph 1904.5(b)(2) of the final contribution is not work-related. An 15: 397) was typical of this view: rule contains eight exceptions to the example of this type of injury would be We do not, however, support a requirement work environment presumption that are a diabetic incident that occurs while an that employers must use a mandatory intended to exclude from the employee is working. Because no event checklist to determine work-relatedness. . . . recordkeeping system those injuries and or exposure at work contributed in any
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way to the diabetic incident, the case is 273, 301). OSHA has decided not to inquiries received over the years, allows not recordable. This exception allows combine this exception with another employers limited flexibility to exclude the employer to exclude cases where an exception because questions are often from the recordkeeping system employee’s non-work activities are the asked about injuries and illnesses that situations where the employee is using sole cause of the injury or illness. The arise at the employer’s establishment the employer’s establishment for purely exception was included in the proposal, and the Agency believes that a separate personal reasons during his or her off- and OSHA received no comments exception addressing voluntary shift time. For example, if an employee opposing its adoption. wellness programs and other activities were using a meeting room at the (iii) Injuries and illnesses will not be will provide clearer direction to employer’s establishment outside of his considered work-related if they result employers. or her assigned working hours to hold solely from voluntary participation in a (iv) Injuries and illnesses will not be a meeting for a civic group to which he wellness program or in a medical, considered work-related if they are or she belonged, and slipped and fell in fitness, or recreational activity such as solely the result of an employee eating, the hallway, the injury would not be blood donation, physical, flu shot, drinking, or preparing food or drink for considered work-related. On the other exercise classes, racquetball, or personal consumption (whether bought hand, if the employee were at the baseball. This exception allows the on the premises or brought in). This employer’s establishment outside his or employer to exclude certain injury or exception responds to a situation that her assigned working hours to attend a illness cases that are related to personal has given rise to many letters of company business meeting or a medical care, physical fitness activities interpretation and caused employer company training session, such a slip or and voluntary blood donations. The key concern over the years. An example of fall would be work-related. OSHA also words here are ‘‘solely’’ and the application of this exception would expects the number of cases affected by ‘‘voluntary.’’ The work environment be a case where the employee injured this exception to be small. The cannot have contributed to the injury or himself or herself by choking on a comments on this exception are illness in any way for this exception to sandwich brought from home but eaten discussed in more detail in the section apply, and participation in the wellness, in the employer’s establishment; such a concerning proposed Exception B–5, fitness or recreational activities must be case would not be considered work- Personal Tasks Unrelated To voluntary and not a condition of related under this exception. On the Employment Outside of Normal employment. other hand, if the employee was injured Working Hours, found later in this This exception allows the employer to by a trip or fall hazard present in the document. exclude cases that are related to employer’s lunchroom, the case would (vi) Injuries and illnesses will not be personal matters of exercise, recreation, be considered work-related. In addition, considered work-related if they are medical examinations or participation a note to the exception makes clear that solely the result of personal grooming, in blood donation programs when they if an employee becomes ill as a result of self-medication for a non-work-related are voluntary and are not being ingesting food contaminated by condition, or are intentionally self- undertaken as a condition of work. For workplace contaminants such as lead, or inflicted. This exception allows the example, if a clerical worker was contracts food poisoning from food employer to exclude from the Log cases injured while performing aerobics in the items provided by the employer, the related to personal hygiene, self- company gymnasium during his or her case would be considered work-related. administered medications and lunch hour, the case would not be work- As a result, if an employee contracts intentional self-inflicted injuries, such related. On the other hand, if an food poisoning from a sandwich brought as attempted suicide. For example, a employee who was assigned to manage from home or purchased in the burn injury from a hair dryer used at the gymnasium was injured while company cafeteria and must take time work to dry the employee’s hair would teaching an aerobics class, the injury off to recover, the case is not considered not be work-related. Similarly, a would be work-related because the work related. On the other hand, if an negative reaction to a medication employee was working at the time of the employee contracts food poisoning from brought from home to treat a non-work injury and the activity was not a meal provided by the employer at a condition would not be considered a voluntary. Similarly, if an employee business meeting or company function work-related illness, even though it first suffered a severe reaction to a flu shot and takes time off to recover, the case manifested at work. OSHA also expects that was administered as part of a would be considered work related. Food that few cases will be affected by this voluntary inoculation program, the case provided or supplied by the employer exception. would not be considered work-related; does not include food purchased by the (vii) Injuries will not be considered however, if an employee suffered a employee from the company cafeteria, work-related if they are caused by motor reaction to medications administered to but does include food purchased by the vehicle accidents occurring in company enable the employee to travel overseas employer from the company cafeteria parking lots or on company access on business, or the employee had an for business meetings or other company roads while employees are commuting illness reaction to a medication functions. OSHA believes that the to or from work. This exception allows administered to treat a work-related number of cases to which this exception the employer to exclude cases where an injury, the case would be considered applies will be few. This exception was employee is injured in a motor vehicle work-related. included in the proposal and received accident while commuting from work to This exception was included in the generally favorable comments (see, e.g., home or from home to work or while on proposal, and received support from a Exs. 15: 31, 78, 105, 159, 176, 181, 184, a personal errand. For example, if an number of commenters (see, e.g., Exs. 188, 345, 359, 428). employee was injured in a car accident 15: 147, 181, 188, 226, 281, 304, 341, (v) Injuries and illnesses will not be while arriving at work or while leaving 345, 363, 348, 373). Other commenters considered work-related if they are the company’s property at the end of the supported this proposal but suggested solely the result of employees doing day, or while driving on his or her consolidating it with the proposed personal tasks (unrelated to their lunch hour to run an errand, the case exception for voluntary activities away employment) at the establishment would not be considered work-related. from the employer’s establishment (see, outside of their assigned working hours. On the other hand, if an employee was e.g., Exs. 15–176, 231, 248, 249, 250, This exception, which responds to injured in a car accident while leaving
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the property to purchase supplies for but should instead include a broader factors present particular risks. For example, the employer, the case would be work- range of mental disorders. The primary machine-paced workers (involving limited related. This exception represents a arguments of this group of comments worker control of job demands) have one of change from the position taken under were: the highest levels of anxiety, depression, and the former rule, which was that no • irritation of 24 occupations studied (Caplan Workers are afflicted with a number et al., 1975). Health professionals (e.g., injury or illness occurring in a company of mental disorders caused or physicians, dentists, nurses, and health parking lot was considered work- exacerbated by work, and the statistics technologists) have higher than expected related. As explained further below, should include those disorders just as rates of suicide which is most often related OSHA has concluded, based on the they include physical disorders; to depression (Milham, 1983) and of alcohol evidence in the record, that some • If the records include only post- and drug abuse (Hoiberg, 1982). Nurses and injuries and illnesses that occur in traumatic stress as a mental disorder, other health care workers have increased company parking lots are clearly caused many work-related cases of mental rates of hospitalizations for mental disorders by work conditions or activities—e.g., illness will go unreported (6,000 mental (Gundersson & Colcord, 1982; Hoiberg, 1982). This information about specific risks within being struck by a car while painting illness cases are reported to the BLS and parking space indicators on the different occupations provides important involve days away from work, but less information for possible intervention and pavement of the lot, slipping on ice than 10% of these are post-traumatic training to improve conditions while at the permitted to accumulate in the lot by stress cases), and the statistics will be same time, indicating the possibility of the employer—and by their nature point skewed and misinterpreted; specific stressors that need to be addressed to conditions that could be corrected to • Workers’ compensation does not within the job. This type information would improve workplace safety and health. restrict compensable mental illnesses to be lost with the proposed reporting (viii) Common colds and flu will not post-traumatic stress cases; guidelines. be considered work-related. • Employers are recording and Fourteen commenters opposed having Paragraph 1904.5(b)(2)(viii) allows the reporting all mental disorders now and to record mental illness cases of any employer to exclude cases of common thus would not be burdened by kind (Exs. 15: 78, 133, 184, 248, 249, cold or flu, even if contracted while the continuing the practice. 250, 304, 348, 378, 395, 406, 409, 412, employee was at work. However, in the Arguments in support of treating 424). Their primary arguments were: case of other infectious diseases such as mental illnesses no differently from any • The diagnosis of mental illnesses is tuberculosis, brucellosis, and hepatitis other injury or illness were made by the subjective and unreliable; C, employers must evaluate reports of American Psychological Association • It is often impossible, even for a such illnesses for work relationship, just (Ex. 15: 411): health care professional, to determine as they would any other type of injury The American Psychological Association objectively which mental disorders are or illness. work-related and which are not; (ix) Mental illness will not be strongly opposes OSHA’s proposal to • Workers have a right to privacy considered work-related unless the consider a mental illness to be work related about mental conditions that should not employee voluntarily provides the only if it is ‘‘associated with post-traumatic stress.’’ We feel that this proposal disregards be violated; employers fear the risk of employer with an opinion from a an accumulating body of research showing invasion of privacy lawsuits if they physician or other licensed health care the relationship between mental health/ record these cases on ‘‘public records’’; professional with appropriate training illness and workplace stressors. Mental because of confidentiality concerns, and experience (psychiatrist, illness associated with post traumatic stress workers are unlikely to disclose mental psychologist, psychiatric nurse is only one form of mental illness and use of illnesses, and employers will therefore practitioner, etc.) stating that the this singular definition would exclude much employee has a mental illness that is of the mental illness affecting our nation’s be unable to obtain sufficient work-related. workforce. information to make recordability Job stress is perhaps the most pervasive determinations; Exception (ix) is an outgrowth of • proposed Exception B–11—Mental occupational health problem in the Mental illnesses are beyond the workplace today. There are a number of scope of the OSHA Act; Congress illness, unless associated with post- emotional and behavioral results and traumatic stress. There were more than intended to include only ‘‘recognized manifestations of job stress, including injuries or illnesses’’; 70 comments that addressed the issue of depression and anxiety. These mental • mental illness recordkeeping. Two Recording mental disorders opens disorders have usually been captured under the door to abuse; workers may ‘‘fake’’ commenters suggested that OSHA the ‘‘mental illness’’ category but would no postpone any decision on the issue: the longer be recognized if the proposed mental illnesses, and unions may National Safety Council (Ex. 15: 359) reporting guidelines were enacted. encourage workers to report mental The 1985 National Health Interview Survey problems as a harassment tactic; and recommended further study, and the • AFL–CIO (Ex. 15: 418) stated that the (Shilling & Brackbill, 1987) indicated that No useful statistics will be approximately 11 million workers reported problem of mental illness in the generated by such recording. health-endangering levels of ‘‘mental stress’’ The American Iron and Steel Institute workplace was so prevalent and so at work. A large and growing body of (AISI) (Ex.15: 395) expressed the important that it should be handled in literature on occupational stress has concerns of the group of employers a separate rulemaking devoted to this identified certain job and organizational opposed to any recording of mental issue. characteristics as having deleterious effects A few commenters, including NIOSH on the psychological and physical health of conditions: (Ex. 15: 407), the American workers, including their mental health. These OSHA should eliminate its proposed Psychological Association (Ex. 15: 411), include high workload demands coupled recording requirements for mental illness. the AFL–CIO (Ex. 14: 418), the United with low job control, role ambiguity and OSHA’s proposed rule includes changes in Steelworkers of America (Ex. 15: 429), conflict, lack of job security, poor an employee’s psychological condition as an relationships with coworkers and ‘‘injury or illness,’’ and [proposed] Appendix and the United Brotherhood of supervisors, and repetitive, narrow tasks A presumes that mental illness ‘‘associated Carpenters Health and Safety Fund of (American Psychological Association, 1996). with post-traumatic stress’’ is work related. North America (Ex. 15: 350) argued that These include role stressors and demands in Employers, employees, and OSHA have been recording should not be limited to post- excess of control. More precise analyses wrestling for 25 years with the proper traumatic stress as OSHA had proposed reveal that specific occupations and job recording of fairly simple injuries like back
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injuries, sprains, and illnesses caused by specialized psychiatric training (i.e., mental illness cases to those involving chemical exposures. Requiring employers to psychiatric nurse practitioner). Work- post-traumatic stress, is not consistent record something as vague as psychological relatedness of the mental health condition with the statute or the objectives of the conditions will impose impossible burdens should be determined by a psychiatric recordkeeping system, and is not in the independent medical evaluation. on employers (and compliance officers) and best interest of employee health. The thus will create an unworkable A comment from the Department of OSH Act is concerned with both recordkeeping scheme. Energy (Ex. 15: 163) stated that any Moreover, too little is known about the physical and mental injuries and etiology of most mental conditions to justify diagnosis of mental illness should be illnesses, and in fact refers to any presumption or conclusion that a made by at least two qualified ‘‘psychological factors’’ in the statement condition that surfaces at work was ‘‘caused’’ physicians, and CONSOL Inc. (Ex. 15: of Congressional purpose in section 2 of by something in the work environment. It is 332) and Akzo Nobel (Ex. 15: 387) the Act (29 U.S.C. 651(b)(5)). hard to imagine a mental illness appearing at wanted the rule to require that any such In addition, discontinuing the work that is not a manifestation of a diagnosis meet the criteria of the recording of mental illnesses would preexisting condition or predisposition. Diagnostic and Statistical Manual, deprive OSHA, employers and Thus, the only sensible approach is to Version IV (DSM–IV). Commenters had employees, and safety and health exclude all mental illnesses from recording different opinions about the minimum requirements. professionals of valuable information qualifications necessary for a health care with which to assess occupational Many commenters from business and professional to make decisions about hazards and would additionally skew trade associations either agreed with mental health conditions; specifically, the statistics that have been kept for OSHA’s proposal or recommended an some commenters urged OSHA to many years. Therefore, the final rule even stricter limitation on recordable exclude ‘‘counselors’’ (Ex. 15: 226) or to does not limit recordable mental mental disorders (see, e.g., Exs. 33, 15: include ‘‘only psychiatrists and Ph.D. disorders to post traumatic stress 27, 31, 38, 46, 79, 122, 127, 132, 153, psychologists’’ (Ex. 15: 184). syndrome or any other specific list of 170, 176, 181, 199, 203, 226, 230, 231, A number of commenters suggested mental disorders. OSHA also does not 273, 277, 289, 301, 305, 307, 308, 313, excluding from the requirement to agree that recording mental illnesses 325, 332, 352, 353, 368, 384, 387, 389, record any mental illness related to will lead to abuse by employees or 392, 410, 427, 430, 434). Points raised personnel actions such as termination, others. OSHA has required the by these commenters included job transfer, demotions, or disciplinary recording of these illnesses since the recommendations that OSHA should actions (see, e.g., Exs. 15: 68, 127, 136, inception of the OSH Act, and there is require: 137, 141, 176, 184, 224, 231, 266, 273, no evidence that such abuse has • Recording only of those mental 278, 301, 395, 424). The New York occurred. illnesses that arise from a single, work- Compensation Board (Ex. 15: 68) noted However, OSHA agrees that recording related traumatic or catastrophic event, that New York’s workers’ compensation work-related mental illnesses involves such as a workplace explosion or an law excludes such cases by specifying several unique issues, including the armed robbery; that mental injuries are compensable difficulty of detecting, diagnosing and • Recording only of those mental with the exception of injuries that are verifying mental illnesses; and the illnesses that are directly and the ‘‘direct consequence of a lawful sensitivity and privacy concerns raised substantially caused by a workplace personnel decision involving a by mental illnesses. Therefore, the final incident; disciplinary action, work evaluation, job rule requires employers to record only • Recording only of diagnosed mental transfer, demotion, or termination taken those mental illnesses verified by a illnesses resulting from a single in good faith by the employer.’’ health care professional with workplace event that is recognized as Finally, several employers raised the appropriate training and experience in having the potential to cause a issues of the privacy of an employee the treatment of mental illness, such as significant and severe emotional with a mental disorder, the need to a psychiatrist, psychologist, or response; protect doctor-patient confidentiality, psychiatric nurse practitioner. The • Recognition only of post-traumatic and the potential legal repercussions of employer is under no obligation to seek stress cases or related disorders that employers breaching confidentiality in out information on mental illnesses include physical manifestations of an effort to obtain injury and illness from its employees, and employers are illness and that are directly related to information and in recording that required to consider mental illness cases specific, objectively documented, information (see, e.g., Exs. 15: 78, 153, only when an employee voluntarily catastrophic work-related events; and 170, 195, 260, 262, 265, 277, 348, 392, presents the employer with an opinion • Recording only of diagnosed 401, 406, 409). Some of these from the health care professional that conditions directly attributable to a commenters suggested that an employer the employee has a mental illness and traumatic event in the workplace, should only have the obligation to that it is work related. In the event that involving either death or severe record after the employee has brought the employer does not believe the physical injury to the individual or a co- the condition to the attention of the reported mental illness is work-related, worker. employer, either directly or through the employer may refer the case to a Several commenters suggested the use medical or workers’ compensation physician or other licensed health care of a medical evaluation to determine claims, and in no case should doctor- professional for a second opinion. diagnosis and/or work-relationship in patient confidentiality be breached. OSHA also emphasizes that work- cases of mental illness (see, e.g., Exs. 15: (Issues related to confidentiality of the related mental illnesses, like other 65, 78, 105, 127, 170, 181, 184, 226, Log are discussed in detail in the illnesses, must be recorded only when 230). For example, the Aluminum summary and explanation of § 1904.35, they meet the severity criteria outlined Company of America (Ex. 15: 65) stated Employee Involvement.) in § 1904.7. In addition, for mental that: After a review of the comments and illnesses, the employee’s identity must OSHA should define mental health the record on this issue, OSHA has be protected by omitting the employee’s conditions for recordkeeping purposes as decided that the proposed exception, name from the OSHA 300 Log and conditions diagnosed by a licensed physician which would have limited the work- instead entering ‘‘privacy concern case’’ or advanced health care practitioner with relatedness (and thus recordability) of as required by § 1904.29.
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Exceptions Proposed but Not Adopted recorded, while if the same injury occurs establishment outside of the employee’s during overtime, the case is non-recordable? The proposed rule contained eleven assigned working hours.’’ Also, how are injuries to salaried employees Proposed Exception B–6. Cases exceptions to the geographic (who are exempt from overtime) treated presumption. Some of these exceptions Resulting From Acts of Violence by under this aspect of the proposal? I submit Family Members or Ex-spouses When are included in the final rule, and that if these issues are not fully ‘‘fleshed out’’ therefore are discussed above, while in the proposal or its preamble, this Unrelated to Employment, Including others were rejected for various reasons. subparagraph will result in the creation of Self-inflicted Injuries. The final rule The following discussion addresses more questions than it resolves. does not exempt workplace violence those proposed exemptions not adopted cases from the Log, although it does The National Federation of in the final rule, or not adopted in their allow employers to exclude cases that Independent Business (NFIB) (Ex. 15: entirety. involve intentionally self-inflicted Proposed Exception B–5. Personal 304) asked OSHA ‘‘to specify that the injuries. The final rule thus departs Tasks Unrelated To Employment ‘normal working hours’ refers to the substantially from the proposal in this Outside of Normal Working Hours. The work schedule of the employee not the respect. The proposed exception, which proposed rule included an exception for employer. If this distinction is not made would have exempted domestic injuries and illnesses caused solely by clear, this proposal arguably could deny violence and self-inflicted cases from employees performing personal tasks at this exemption to establishments which the Log, drew many comments. The the establishment outside of their operate during non-standard operating comments generally fell into four normal working hours. Some aspects of hours (e.g., 24 hours a day, weekends, categories: (1) those urging OSHA to this proposed exception have been after 5 PM, etc.)—and we assume this is require the recording of all cases of adopted in the final, but others have not OSHA’s intent.’’ violence occurring at the establishment; not. Almost all the comments on this OSHA believes that injuries and (2) those recommending that no proposed exception supported it (see, illnesses sustained by employees violence cases at the establishment be e.g., Exs. 15: 31, 78, 105, 121, 159, 281, engaged in purely personal tasks at the recorded; (3) those recommending 297, 336, 341, 350), and many suggested workplace, outside of their assigned recordation only of violence cases that the exception be expanded to working hours, are not relevant for perpetrated by certain classes of include personal tasks conducted statistical purposes and that information individuals; and (4) those urging OSHA during work hours (see, e.g., Exs. 15: about such injuries and illnesses would to require the recording of cases 176, 184, 201, 231, 248, 249, 250, 273, not be useful for research or other involving violence related to 301, 335, 348, 374). Caterpillar, Inc. (Ex. purposes underlying the recordkeeping employment without regard to the 15: 201) offered an opinion requirements. OSHA has therefore perpetrator. The comments on the representative of the views of these decided to include some parts of the proposed exception are discussed commenters: ‘‘We agree with this proposed exception in the final rule. below. No exemption/record all injuries and exception but it should be expanded to Additional language has been added to illnesses arising from violent acts. A include any personal tasks performed the exception since the proposal to number of commenters objected to during work hours if the work clarify that the exception also applies OSHA’s proposed exemption of when the employee is on the premises environment did not cause the injury or domestic violence cases from the list of outside of his or her assigned working illness. Expanding this exemption will recordable injuries, arguing that all acts hours, as the NFIB pointed out. be consistent with the exemptions for of violence occurring at the workplace voluntary wellness program OSHA does not agree, however, with should be recorded (see, e.g., Exs. 15: participation and eating, drinking, and those commenters who suggested that 31, 54, 56, 88, 90, 91, 93, 94, 99, 101, preparing one’s own food.’’ the exception be expanded to include 103, 104, 106, 111, 114, 115, 144, 186, One commenter disagreed with the personal tasks performed by employees 187, 238, 345, 362, 407, 418, 439). For proposed exception (the Laborers Safety during work hours. As discussed in example, the North Carolina Department and Health Fund of North America (Ex. preceding sections of this summary and of Labor stated that ‘‘if an employer 15: 310)) and cited as a reason the explanation and in the Legal Authority must log the injuries sustained as a difficulty of determining the extent to discussion, there are strong legal and result of workplace violence then the which, for example, a case involving an policy reasons for treating an injury or employer may also institute needed employee misusing a hazardous illness as work-related if an event or security measures to protect the chemical after hours because he or she exposure in the work environment employees at the establishment. An did not receive the necessary Right-to- caused or contributed to the condition employer should be required to log any Know training from the employer would or significantly aggravated a pre-existing ‘preventable’ injury (above first aid) that qualify for this exception. condition. Under this ‘‘but-for’’ an employee sustains at the Several commenters suggested that approach, the nature of the activity the establishment’’ (Ex. 15: 186). The Miller OSHA clarify what it meant by the employee was engaged in at the time of Brewing Company also supported terms ‘‘personal tasks’’ and ‘‘normal the incident is not relevant, except in recording all acts of workplace violence, working hours’’ (see, e.g., Exs. 15: 102, certain limited circumstances. based on the following rationale: ‘‘I 304, 345). For example, a representative Moreover, OSHA believes that it would envision a scenario involving an angry of Constangy, Brooks & Smith be difficult in many cases for employers husband attempting to kill his wife but, recommended that: to distinguish between work activities because he is a ‘‘bad shot,’’ another More explanation be provided regarding and personal activities that occur while employee is killed. Why should killing the further limitation on this exclusion. For the employee is on-shift. Accordingly, an innocent bystander be a reportable example, does this section of the proposal the final rule codifies parts of this event, whereas a fatality involving a envision the exclusion of injuries and proposed exception in paragraph illnesses resulting from personal tasks spouse is excluded?’’ (Ex. 15: 442). performed during overtime (i.e., outside of 1904.5(b)(v) in the following form: ‘‘The Exception for all violent acts. There normal working hours)? If I am injured while injury or illness is solely the result of an were commenters who thought injuries talking to my spouse on the phone during employee doing personal tasks and illnesses resulting from violence regular business hours, must the case be (unrelated to their employment) at the were outside of OSHA’s purview and
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should not be recorded at all (see, e.g., Alabama Shipyard Inc. (Ex. 15: 152) between employees and non-employees Exs. 15: 28, 75, 96, 107, 203, 254, 289). added: which rise from personal disputes should not be recorded. Existing data show that the For example, the Quaker Oats Company Exempting acts of violence based strictly (Ex. 15: 289) stated that ‘‘[w]orkplace number of incidents of interpersonal violence on acts committed by family members, a between coworkers or workers and intimates violence in any form is a personal spouse, or when self-inflicted is too limited. is small, although these incidents do get high criminal act, and in no way, shape or Instead, the exemption should be based on visibility. Therefore, exclusion of these small form should violence be labeled under the relationship of the perpetrator to the number of cases will have little effect on hazards in the workplace or even [be] employer. The employer should be no more statistical measures. monitored by OSHA. A person who may responsible for some random act of violence by a crazy individual walking in off the street Some commenters urged OSHA to turn to violent behavior from family, who is in no way associated with the place some restrictions on the proposed personal, or job dispute is a matter of employer than it should be for an act of exception. For example, two NLRB [National Labor Relations Board], violence by a family member. commenters argued that cases involving law enforcement or state employment Southern California Edison (Ex. 15: violence should only be recorded for statutes, not industrial safety.’’ The 111) stated that ‘‘violence is another occupations where there is a reasonable National Restaurant Association (Ex. 15: example that should be excluded from potential of encountering violence (Exs. 96) agreed: being work-related if the employee 15: 335, 409). The American Congress passed the Occupational Safety personally knows the attacker. This Automobile Manufacturers Association and Health Act to regulate workplace hazards would include family members or (AAMA) stated that: dealing with the workplace environment or coworkers. Only those acts of violence processes that employers could identify and Workplace violence as a reasonable possibly protect. The Congress did not that result from random criminal function of an employee’s employment contemplate that this statute would be used activity should be included (i.e., should be recorded, for example: a cashier to redress incidents over which the employer robbery, murder, etc.).’’ TU Services (Ex. injured in a robbery attempt at a 24-hour has no ability to control, such as the 15: 262) recommended ‘‘that only cases retail establishment. An example of unpredictability of workers or nonworkers that involve acts of violence that are the ‘‘unreasonable’’ recordable workplace committing violent, tortuous acts towards result of random criminal activity violence that should not be recordable (i.e., others. This issue was litigated should be recorded. Cases that involve where an employee was simply ‘‘in the wrong place at the wrong time’’) would be a unsuccessfully by OSHA in Secretary of anyone with a personal relationship Labor v. Megawest Financial, Inc., OSHRC flight crew that perishes mid-flight from a Doc. No. 93–2879 (June 19, 1995). OSHA with the employee should be excluded.’’ terrorist’s bomb. These cases have nothing to apparently is attempting in this NPR to The American Feed Industry do with the individual’s employer, only that obtain by regulatory fiat what was rejected by Association (Ex. 15: 204) and United they happened to be victims at the case law and to displace state tort law actions Parcel Service (Ex. 15: 424), on the other employer’s place of employment. It is by using the OSH Act to police social hand, argued that cases involving AAMA’s understanding that the purpose of behavior. workplace violence should only be the subject standard is to collect information recorded if the perpetrator was a fellow pertaining to injuries and illnesses that arise Recording work-related violence out of conditions in the workplace, with the except acts of certain classes of employee. Record all violent acts directly related end objective being to use that information to individuals. There were many correct or mitigate these conditions so as to commenters who supported the to employment regardless of who prevent additional injuries or illnesses. proposed exception, which would only commits the act. Commenters favoring Caterpillar Inc. (Ex. 15: 201) suggested have excluded acts of violence on this approach suggested that violence by that ‘‘a predominant contributor employees committed by family family members or others should be concept, similar to that being proposed members and ex-spouses and self- recorded if linked to work, but that all to help establish work-relatedness, inflicted injuries and illnesses. The personal disputes should be exempt could be utilized in cases where the proposed exception as drafted was (see, e.g., Exs. 15: 105, 146, 176, 184, clear cause of violence is not readily supported by some commenters (see, 231, 273, 297, 301, 313, 336, 348, 352, apparent.’’ e.g., Exs. 15: 78, 198, 350, 359). Others 353, 374, 389, 392). The Workplace In the final rule, OSHA has decided thought the exception should be Health and Safety Council (Ex. 15: 313) not to exclude from recording those expanded to include not only family proposed the following exception: injury and illness cases involving acts of members and ex-spouses, but also live- Cases will not be considered work-related violence against employees by family in partners, friends, and other intimates if they result solely from acts of violence members or ex-spouses that occur in the (see, e.g., Exs. 15: 80, 122, 153, 181, 213, committed by one’s family, or ex-spouse, or work environment or cases involving 325, 363, 401), while others argued that other persons when unrelated to the worker’s other types of violence-related injuries the exemption should apply to the employment, including intentionally self- inflicted injuries. Violence by persons on the and illnesses. The final rule does general public, i.e., to all people (see, premises in connection with the employer’s exempt from recording those cases e.g., Exs. 15: 9, 111, 119, 151, 152, 179, business (including thieves and former resulting from intentionally self- 180, 239, 260, 262, 265, 272, 303, 304, employees) is considered work related even inflicted injuries and illnesses; these 341, 356, 375, 401, 430). if committed by one’s family or ex-spouse. Typical of comments in support of a cases represent only a small fraction of The American Ambulance broader exception were the remarks of the total number of workplace fatalities Association (Ex. 15: 226) stated simply: the National Oilseed Processors (three percent of all 1997 workplace ‘‘AAA believes that OSHA should Association (Ex. 15: 119): violence fatalities) (BLS press release define what is work-related violence USDL 98–336, August 12, 1998). OSHA The only time violence in the work place and assume that all other acts are not believes that injuries and illnesses should be considered work-related is when it work-related, and eliminate the family resulting from acts of violence against is associated with a work issue and and non-family distinction.’’ The United committed by an employee or other person employees at work are work-related linked to the business, e.g., a customer. Any Auto Workers (Ex. 15: 438) agreed: under the positional theory of causation. other act of violence is not under the control Incidents of intentional violence should be The causal connection is usually of the employer and should not be recorded only if they arise from employment established by the fact that the assault considered work-related. activities. Incidents between employees, or or other harmful event would not have
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occurred had the employee not, as a parking lots, had approximately equal definition of ‘‘establishment’’ (see condition of his or her employment, numbers of commenters in favor and Subpart G of the final rule), OSHA has been in the position where he or she opposed. The final rule includes some decided to rely on activity-based rather was victimized. Moreover, occupational aspects of the proposed exemption. In than location-based exemptions in the factors are directly involved in many favor of recording injuries in parking final rule. The parking lot exception in types of workplace violence, such as lots and on access roads were the the final rule applies to cases in which assaults engendered by disputes about commenters represented by Exs. 24, 15: employees are injured in motor vehicle working conditions or practices, or 41, 72, 310, 362. Typical of the views of accidents commuting to and from work assaults on security guards or cashiers this group was that of the Association of and running personal errands (and thus and other employees, who face a Operating Room Nurses (AORN) (Ex. 15: such cases are not recordable), but does heightened risk of violence at work. 72), which noted that: not apply to cases in which an Accordingly, OSHA does not accept the [e]mployee parking lots should be included employee slips in the parking lot or is premise, advanced by some in defining ‘‘work-related.’’ Perioperative injured in a motor vehicle accident commenters, that workplace violence is nurses and other surgical service providers while conducting company business outside the purview of the statute. may be required on a ‘‘call’’ basis during the (and thus such cases are recordable). In some cases, acts of violence night hours. Consequently they enter and This exception is codified at paragraph committed by a family member or ex- leave parking lots at unusual times when 1904.5(b)(2)(vii) of the final rule. spouse at the workplace may be traffic in the lots is minimal. These providers Proposed Exception B–8. Never prevented by appropriate security may be at increased risk for random violence. Engaged in an Activity That Could Have measures enforced by employers. Absent the ‘‘call’’ requirement, the employee Placed Stress On the Affected Body Part. would not be in the parking lot at the time Moreover, information about workplace This proposed exception would have injuries due to assaults by family of the injury. Further, if the employee is paid for travel time to and/or from the facility, allowed employers not to record cases if members or ex-spouses is relevant and injuries occurring during that period should no aspect of the worker’s job placed should be included in the overall injury be considered ‘‘work-related.’’ stress on the affected body part or and illness data for statistical and exposed the worker to any chemical or research purposes. Omitting the The AFL-CIO (Ex. 15: 362) added that employers may be less likely to provide physical agent at work that could be proposed exception also obviates the associated with the observed injury or need for employers to make distinctions lighting, security and other controls that could prevent violent assaults in illness. This proposed exception among various degrees of personal received support from a number of relationships. Accordingly, the final parking lots and access roads if injuries occurring there are not recordable. employers (see, e.g., Exs. 15: 176, 185, rule does not allow employers to 231, 273, 301, 341, 359, 406). For exclude injuries and illnesses resulting The opposite view, in support of the proposed exception for parking lots, was example, the National Wholesale from violence occurring in the Druggists’ Association stated that ‘‘Such workplace from their Logs. However, expressed by several employers (see, e.g., Exs. 15: 27, 45, 176, 185, 195, 231, injuries or illnesses are obviously not some cases of violence will be excluded caused by any work-related activities under § 1904.5(b)(2)(v), which exempts 248, 249, 250, 273, 289, 301, 304, 341, 363). The National Wholesale Druggists and should therefore be excluded from an injury or ilness that is solely the any reporting and recording result of an employee doing personal Association (NWDA) (Ex. 15: 185) supported the proposed exclusion: requirements’ (Ex. 15: 185). tasks (unrelated to their employment) at Deleting the word ‘‘never’’ from the the establishment outside of the [i]nevitably, activities that take place in the proposed exception was also supported employee’s assigned working hours. For company parking lot or on the company by many respondents (see, e.g., Exs. 15: access road are not only outside of the example, if an employee arrives at work 146, 279, 304, 335, 374, 392, 395, 430, early to use a company conference room employer’s dominion and control but also are most often not related in any way to the 431, 442). Representative of the latter for a civic club meeting, and is injured group is the following comment by the by some violent act, the case would not employee’s work. Including injuries that occur in these locations as part of the OSHA BF Goodrich Company (Ex. 15: 146): be considered work related. log would lead to an inaccurate reflection of The use of the term ‘‘never’’ in this OSHA has decided to maintain the injury data as a whole. OSHA should retain exclusion for intentionally self-inflicted exemption requires too harsh a test for case this exemption. An employer has no control evaluation. A back injury should not be injuries that occur in the work over an employee’s commute to and from the recordable because the employee lifted a box environment in the final rule. The workplace, with the exception of arrival and 10 years previous to the injury. A more Agency believes that when a self- departure times for the work day. If OSHA reasonable evaluation criteria meeting the inflicted injury occurs in the work requires the reporting of injuries that occur same intent could be stated as below: The environment, the case is analogous to during the employee’s commute, the number injury or illness is not work-related if it one in which the signs or symptoms of of injuries reported would increase cannot be associated with the employee’s a pre-existing, non-occupational injury dramatically. duties or exposures at work. or illness happen to arise at work, and The National Federation of Taking an opposing view to the that such cases should be excluded for Independent Business (Ex. 15: 304) proposed exception were the AFL-CIO the same reasons. (see paragraph stated that the proposed exception (Ex. 15: 418), the United Steelworkers of 1904.5(b)(2)(ii)). The final rule at would be consistent with workers’ America (Ex. 15: 429), and the United paragraph 1904.5(b)(2)(vi) therefore compensation rules. Brotherhood of Carpenters Health and includes that the part of exception OSHA has concluded that a limited Safety Fund of North America (Ex. 15: proposed that applied to injuries and exception for cases occurring on parking 350). The AFL-CIO stated that: illnesses that are intentionally self- lots is appropriate but that the broader exception proposed is not. The final We believe when evaluating injuries this inflicted. approach could logically work in most cases, Proposed Exception B–7. Parking Lots rule thus provides an exception for but in cases of chemical exposures and and Access Roads. This proposed motor vehicle injury cases occurring musculoskeletal disorders this logic does not exception, which in effect would have when employees are commuting to and hold merit. If the Agency attempts to apply narrowed the definition of from work. As discussed in the this approach to the aforementioned types of ‘‘establishment’’ to exclude company preamble that accompanies the cases, the employer will have to become an
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epidemiologist, ergonomist or toxicologist to illnesses that arise from voluntary ‘‘normal body movement’’ and ‘‘job- determine if these cases meet the community activities wherever they related’’ (see, e.g., Exs. 15: 80, 83, 89, 98, recordability criteria set forth in this proposal occur (see, e.g., Exs. 15: 146, 184, 272, 146, 176, 225, 226, 231, 239, 273, 301, . . . . We encourage the Agency to omit this 303, 359). Typical of these comments is 304, 313, 352, 353, 355, 359, 406, 424). provision from the final standard. Because of the increasing numbers of workers being one from U.S. West (Ex. 15: 184), which The following comment by the medically diagnosed for multiple chemical stated that ‘‘[e]mphasis should be on the American Gas Association (Ex. 15: 225) sensitivity and the exposures some workers activity that occurred, not the location is representative of those in this group: receive without any knowledge until years of the activity.’’ ‘[N]ormal body movements’ needs after the incident, the Agency must carefully The United Brotherhood of clarification since OSHA has not set forth think about the inclusion of this provision to Carpenters, Health & Safety Fund of any reasons for excluding it. OSHA’s the final standard. North America (Ex. 15: 350) agreed with language states that there is an exclusion Similarly, the Carpenters Fund (UBC the proposed exception, except for cases ‘‘* * * provided that activity does not H&SF) argued that: where the employee is present as a involve a job related motion and the work environment does not contribute to the injury [T]his [exception] would exclude those condition of employment or in the employer’s interest. It commented: or illness’’. OSHA goes on to elaborate that cases where symptoms arise at work, but are illnesses or injuries should not be recorded caused by accidents or exposures away from [A]t the surface this exception seems to if they are not related to an identifiable work work. The UBC H&SF agrees with the theory make perfect sense. However, real activity. However, OSHA also states the of this provision, but emphasizes that the employment relationships and real employer- exclusion would not apply if it involved task placed on employers to determine community relationships do not fit such repetitive motion or if the work environment causation by exposures away from work clean characterizations. Many times either caused or contributed to the injury or would in many cases be impossible. Also the employees are forced to become ‘‘team illness. This language is ambiguous and apportionment of causation is not discussed players’’ and volunteer for unpaid off- redundant. Repetitive motion injury/illness in this analysis and would allow some to establishment activities. Many employers conditions should be treated in the same way record cases .01 percent caused by work and engage in community ‘‘good will’’ generating as any other condition. There should be a others to not record cases 99 percent caused activities by having their employees work-related exclusion if the work by work. For the foregoing reasons, that this volunteer. For the above reasons we urge that environment did not cause or contribute to requirement is unworkable, we urge it be cases occurring away from the employer’s the injury/illness. dropped from the final rule. establishment be considered work-related if the employee is engaged in any activity in LeRoy E. Euvard, Jr., Safety and Based on a review of the record on Environmental Staff (Ex. 15: 80) added: this issue, OSHA has decided not to the interest of the employer or is there as a condition of employment. include this proposed exception in the [T]he definition of work-related resulting final rule. On reflection, the proposed OSHA has decided not to include this from normal body movements is too broad. proposed exception in the final rule The definition excludes walking, talking, etc. language is confusing and would be ‘provided the activity does not involve a job- difficult to apply. The underlying because the final rule’s overall related motion.’ Does that mean that if an concept, to the extent it has merit, is definition of work-environment employee is walking to the rest room and better covered in the exemption addresses this situation in a simple and becomes ill, the illness is not work-related, paragraph 1904.5(b)(2)(ii). As discussed straightforward way. If the employee is but, if he/she is walking from the rest room in preceding sections of this summary taking part in the activity and is either back to his/her work station, it is work- and explanation for section 1904.5, working or present as a condition of related? If the employee is engaged in social there are sound legal and policy employment, he or she is in the work talk, the illness is not work-related, but, if he/ justifications for defining work- environment and any injury or illness she is engaged in a conversation regarding that arises is presumed to be work- some aspect of work, the illness is work- relationship broadly to include injuries related? and illnesses that result from events or related and must then be evaluated for exposures in the work environment. The its recordability under the general Other commenters objected to the proposed exception would effectively recording criteria. Thus, if the employee concept of excluding cases resulting ‘‘swallow’’ the geographic presumption is engaged in an activity at a location from normal body movements from the theory of causation underpinning the away from the establishment, any injury Log (Ex. 56X, pp. 51, 52; Ex. 15: 418). rule by shifting the focus of enquiry in or illness occurring during that activity Walter Jones of the International every case to the employee’s specific job is considered work-related if the worker Brotherhood of Teamsters used the duties. As OSHA has noted, the is present as a condition of employment following example: geographic presumption includes some (for example, the worker is assigned to We do take opposition to some of the cases in which the illness or injury represent the company at a local charity exceptions. For cases that result in normal cannot be directly linked to the stresses event). For those situations where the body movement, I’d like to just bring another imposed by job duties. For example, if employee is engaged in volunteer work example up. We have a member who after an employee trips while walking on a away from the establishment and is not spending most of his morning sorting about level factory floor and breaks his arm, working or present as a condition of 700 different boxes, on break in a normal, employment, the case is not considered unencumbered motion, dropped his pencil the injury should be recordable. The and picked it up, had a back spasm and his comments supporting the proposed work-related under the general back went out. And I know that according to exemption do not, in OSHA’s view, definition of work-relationship. There is the way the standard is written, or the provide a basis for excluding these types thus no need for a special exception. regulation is written, that this can be of cases from recording on the Log. Proposed Exception B–10. The Case attributed to work activity. But the reason we Proposed Exception B–9. Voluntary Results Solely From Normal Body bring it up is we need to be careful in trying Community Activities Away From The Movements, not Job-Related Motions or to be that exact because an employer will Employer’s Establishment. This Contribution from the Work take an uninformed employee and may take proposed exemption drew two Environment. This proposed exception liberties (Ex. 56X, pp. 51, 52). comments supporting it as written (Exs. generated some support (see, e.g., Exs. OSHA has decided not to include a 15: 78, 304), and several other 15: 107, 147, 173, 185, 341, 348, 373, recordkeeping exception for injuries or participants recommended that it be 392) but also caused much confusion illnesses associated with normal body expanded to exclude injuries and about the meaning of the phrases movements in the final rule. The
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proposed provision was intended to OSHA add an exception from recording inconsistent with OSHA’s longstanding exclude the recording of cases that for cases involving phobias: reliance on the geographic presumption happened to occur in the work I would also like to suggest exempting an to establish work-relatedness. environment without any real work employee’s loss of consciousness based on a Furthermore, the Agency believes that contribution. However, the comments fear-based phobia, i.e., fainting at the sight of many of the working conditions pointed on this issue have convinced OSHA that blood. Occasionally an OSHA regulation may to in these comments involve the proposed provision is unnecessary, require blood tests, such as checking lead occupational factors, such the would be unworkable, and would result levels in blood. There are a few employees effectiveness of disciplinary policies in incomplete and inconsistent data. that will lose consciousness at the sight of a and supervision. Thus, recording such needle. These phobias are not limited to incidents may serve to alert both the The case cited by the Teamsters is but medical procedures, but may include spiders, one example of a legitimate work- snakes, etc. In several of our factories, the employer and employees to workplace related injury that could go unrecorded occupational health nurse will administer safety and health issues. if OSHA were to adopt this provision in tetanus boosters as a service to our Non-occupational degenerative the final rule. Further, the final rule employees. Employees that have a phobia conditions: Two commenters also asked already makes clear that injuries and about injections can (and do) lose OSHA to include in the final rule a illnesses that result solely from non- consciousness, which now makes what was recording exception for non- work causes are not considered work- intended as a service an OSHA recordable occupational degenerative conditions related and therefore are excluded from accident. (Exs. 15: 176, 248) such as high blood the Log, and establishes the OSHA has not included an exception pressure, arthritis, coronary artery requirements employers must follow to from recording in the final disease, heart attacks, and cancer that determine work-relationship for an recordkeeping regulation for phobias or can develop regardless of workplace injury or illness when it is unclear any other type of mental illness. The exposure. OSHA has not added such an whether the precipitating event scenario described by the American exception to the rule, but the Agency occurred in the workplace or elsewhere Crystal Sugar Company, which involved believes that the fact that the rule (see paragraph 1904.5(b)(3)). According fainting from fear of an injection offered expects employers confronted with such to the requirements in that section, the as a service to employees, might be cases to make a determination about the employer must evaluate the employee’s considered non-work-related under the extent to which, if at all, work work duties and the work environment exception codified at paragraph contributed to the observed condition to decide whether it is more likely than 1904.5(b)(2)(iii), Voluntary participation will provide direction about how to not that events or exposures in the work in a medical activity. OSHA also determine the work-relatedness of such environment either caused or believes that it would be unreasonable cases. For example, if work contributes contributed to the condition or to omit a case of loss of consciousness to the illness in some way, then it is significantly aggravated a pre-existing resulting from the administration of a work-related and must be evaluated for condition. If so, the case is work-related. blood test for lead exposure at work. its recordability. On the other hand, if These tests are necessitated by the the case is wholly caused by non-work Additional Exemptions Suggested by employee’s exposure to lead at work factors, then it is not work-related and Commenters but Not Adopted and are required by OSHA’s lead will not be recorded in the OSHA In addition to commenting on the standard (29 CFR 1910.1025). The other records. eleven proposed exceptions, interested scenarios presented by these Determining Whether the Precipitating parties suggested adding some commenters, involving spiders, snakes, Event or Exposure Occurred in the Work exceptions to the final rule. This section etc., would also be work-related under Environment or Elsewhere contains a discussion of those the geographic presumption. Illegal activities and horseplay: Paragraph 1904.5(b)(3) of the final additional exemptions suggested by rule provides guidance on applying the commenters but not adopted in the final Several commenters suggested an exception for an employee engaging in geographic presumption when it is not rule. clear whether the event or exposure that illegal activities, horseplay, or failing to Acts of God: The International Dairy precipitated the injury or illness follow established work rules or Foods Association (IDFA) suggested that occurred in the work environment or procedures (see, e.g., Exs. 15: 49, 69, OSHA exclude any injury or illness that elsewhere. If an employee reports pain 117, 151, 152, 179, 180, 203, 368, 393). was ‘‘the result of an ‘‘Act of God,’’ such and swelling in a joint but cannot say The comment of the American Network as, but not limited to, an earthquake or whether the symptoms first arose during of Community Options and Resources a tornado’’ (Ex. 15: 203). OSHA has not work or during recreational activities at (ANCOR) (Ex. 15: 393) is representative adopted such an exception because home, it may be difficult for the of those on this issue: doing so would not be in keeping with employer to decide whether the case is the geographic presumption Employees who fail to follow employer work-related. The same problem arises underpinning this final rule, and would training and best practices or violate when an employee reports symptoms of exclude cases that are in fact work- established policy present a threat not only a contagious disease that affects the related. For example, if a worker was to other employees and consumers/ customers, but also to employers held public at large, such as a staphylococcus injured in a flood while at work, the responsible for the consequences of their infection (‘‘staph’’ infection) or Lyme case would be work-related, even actions. For example, ANCOR does not disease, and the workplace is only one though the flood could be considered an believe that employers should have to use possible source of the infection. In these act of God. Accordingly, if workplace these recording and reporting procedures situations, the employer must examine injuries and illnesses result from these when illnesses and injuries are a result of an the employee’s work duties and events, they must be entered into the employee engaged in illegal activities or environment to determine whether it is records (for a more detailed discussion fails/violates established procedures. more likely than not that one or more of this point, see the Legal Authority OSHA has not adopted any of these events or exposures at work caused or section, above). recommended exceptions in the final contributed to the condition. If the Phobias: The American Crystal Sugar recordkeeping rule because excluding employer determines that it is unlikely Company (Ex. 15: 363) suggested that these injuries and illnesses would be that the precipitating event or exposure
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occurred in the work environment, the job (see, e.g., Exs. 15: 60, 80, 95, 107, preexisting conditions from consideration as employer would not record the case. In 176, 201, 204, 213, 281, 308, 313, 338, new injuries. the staph infection example given 368, 375, 395, 396, 406, 424, 427, 428, LeRoy E. Euvard, Jr., of the Safety and above, the employer would consider the 441). The National Roofing Contractors Environmental Staff Company (Ex. 15: case work-related, for example, if Association (NRCA) commented that 80), suggested that: another employee with whom the newly ‘‘[t]his definition [includes] aggravating [a]ggravation of a pre-existing condition infected employee had contact at work a pre-existing condition. While NRCA should not be recordable if normal body had been out with a staph infection. In believes that the exemptions provided movements or events cause the aggravation. the Lyme disease example, the employer [in the proposed rule] are a step in the For example, a smoker with asthma or other would determine the case to be work- right direction, this provision could obstructive airway disease may experience related if, for example, the employee require that an employer record an shortness of breath while climbing a flight of was a groundskeeper with regular injury that originally occurred outside stairs. A person with degenerative disk exposure to outdoor conditions likely to disease may experience pain while lifting a the employer’s workplace. The motion normal bag of groceries. If performing similar result in contact with deer ticks. or activity that aggravated the injury activities at work likewise aggravates the In applying paragraph 1904.5(b)(3), may not represent any substantial condition, it should not be recordable. the question employers must answer is hazard, yet would still be recorded’’ (Ex. As discussed above, OSHA agrees that whether the precipitating event or 15: 441). The United Parcel Service (Ex. non-work-related injuries and illnesses exposure occurred in the work 15: 424) objected to the inclusion of the should not be recorded on the OSHA environment. If an event, such as a fall, concept of aggravation in the definition Log. To ensure that non-work-related an awkward motion or lift, an assault, of work-relatedness: or an instance of horseplay, occurs at cases are not entered on the Log, work, the geographic presumption [a]nother flaw in the proposal arises from paragraph 1904.5(b)(2)(ii) requires its proposed recording requirement in the employers to consider as non-work- applies and the case is work-related case of ‘‘aggravation’’ of prior conditions. As unless it otherwise falls within an related any injury or illness that drafted, the rule would require reporting as ‘‘involves signs or symptoms that exception. Thus, if an employee trips an occupational injury or illness a while walking across a level factory musculoskeletal condition arising away from surface at work but result solely from a floor, the resulting injury is considered work which becomes aggravated by non-work-related event or exposure that work-related under the geographic performing job duties (i.e., the job increases occurs outside the work environment.’’ presumption because the precipitating discomfort), when accompanied by swelling The Agency also believes that event—the tripping accident—occurred or inflammation. Thus, an employee who preexisting injury or illness cases that in the workplace. The case is work- hurts his wrist playing tennis on the have been aggravated by events or weekend and who returns to his word exposures in the work environment related even if the employer cannot processing job Monday would have a determine why the employee tripped, or represent cases that should be recorded reportable MSD under the rule. With such on the Log, because work has clearly whether any particular workplace criteria for recordation, reported hazard caused the accident to occur. occupational injuries and illnesses would worsened the injury or illness. OSHA is However, if the employee reports an skyrocket, and yet most often these reports concerned, however, that there are some injury at work but cannot say whether would reflect conditions arising away from cases where work-related aggravation it resulted from an event that occurred work. affects the preexisting case only in a at work or at home, as in the example The Food Distributors International minor way, i.e., in a way that does not of the swollen joint, the employer might (Ex. 15: 368) recommended: appreciably worsen the preexisting determine that the case is not work- condition, alter its nature, change the [i]t is very important that injuries that are extent of the medical treatment, trigger related because the employee’s work not truly work-related not be the subject of duties were unlikely to have caused, mandatory recording. For example, if an lost time, or require job transfer. contributed to, or significantly employee were injured off the job and came Accordingly, the final rule requires that aggravated such an injury. to work to ‘‘try it out’’ (i.e., to see if he or workplace events or exposures must she was capable of performing the normal job ‘‘significantly’’ aggravate a pre-existing Significant Workplace Aggravation of a functions), resulting pain might be seen as injury or illness case before the case is Pre-existing Condition ‘‘aggravation’’ and become recordable on that presumed to be work-related. Paragraph In paragraph 1904.5(b)(4), the final basis. The true source of injury, however, 1904.5(a) states that an injury or illness rule makes an important change to the would be outside the workplace, and is considered work-related if ‘‘an event former rule’s position on the extent of recording would produce an artificially or exposure in the work environment inflated rate of injuries and illnesses, and a the workplace aggravation of a profile that was inaccurate. either caused or contributed to the preexisting injury or illness that must resulting condition or significantly occur before the case is considered Several commenters were concerned aggravated a pre-existing injury or work-related. In the past, any amount of about the aggravation of preexisting illness.’’ aggravation of such an injury or illness injuries in the context of recurrences or Paragraph 1904.5(b)(4) of the final was considered sufficient for this new cases (see, e.g., Exs. 15: 210, 204, rule defines aggravation as significant if purpose. The final rule, however, 338) . For example, Caterpillar Inc. (Ex. the contribution of the aggravation at requires that the amount of aggravation 15: 201) stated that: work is such that it results in tangible of the injury or illness that work [b]ack injuries, repetitive motion injuries, consequences that go beyond those that contributes must be ‘‘significant,’’ i.e., and other chronic conditions which have the worker would have experienced as non-minor, before work-relatedness is degenerative or aging causal factors often a result of the preexisting injury or established. The preexisting injury or recur without a new work accident and illness alone, absent the aggravating further without a new work accident capable effects of the workplace. Under the final illness must be one caused entirely by of causing the underlying condition. Even if non-occupational factors. a new work accident occurs, the accident rule, a preexisting injury or illness will A number of commenters on OSHA’s should be serious enough to cause the be considered to have been significantly proposed rule raised the issue of underlying condition before the new case aggravated, for the purposes of OSHA recording injuries that were incurred off presumption is applicable. The effect of this injury and illness recordkeeping, when the job and then were aggravated on the would be to eliminate minor aggravation of an event or exposure in the work
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environment results in: (i) Death, related if one or more events or her hotel room (see the discussion of providing that the preexisting injury or exposures in the work environment working at home, below). illness would likely not have resulted in either caused or contributed to the Second, if an employee has death but for the occupational event or resulting condition or significantly established a ‘‘home away from home’’ exposure; (ii) Loss of consciousness, aggravated a pre-existing condition, as and is reporting to a fixed worksite each providing that the preexisting injury or stated in paragraph 1904.5(a). In day, the employer does not consider illness would likely not have resulted in addition, the exceptions for determining injuries or illnesses work-related if they loss of consciousness but for the work relationship at paragraph occur while the employee is commuting occupational event or exposure; (iii) A 1904.5(b)(2) and the requirements at between the temporary residence and day or days away from work or of paragraph 1904.5(b)(3) apply equally to the job location. These cases are parallel restricted work, or a job transfer that cases that occur at or away from the to those involving employees otherwise would not have occurred but establishment. commuting to and from work when they for the occupational event or exposure; As an example, the work-environment are at their home location, and do not or (iv) Medical treatment where no presumption clearly applies to the case have to be recorded, just as injuries and medical treatment was needed for the of a delivery driver who experiences an illnesses that occur during normal injury or illness before the workplace injury to his or her back while loading commuting are not required to be event or exposure, or a change in the boxes and transporting them into a recorded. course of medical treatment that was building. The worker is engaged in a Third, the employer is not required to being provided before the workplace work activity and the injury resulted consider an injury or illness to be work- event or exposure. OSHA’s decision not from an event—loading/unloading— related if it occurs while the employee to require the recording of cases occurring in the work environment. is on a personal detour from the route involving only minor aggravation of Similarly, if an employee is injured in of business travel. This exception allows preexisting conditions is consistent with an automobile accident while running the employer to exclude injuries and the Agency’s efforts in this rulemaking errands for the company or traveling to illnesses that occur when the worker to require the recording only of non- make a speech on behalf of the has taken a side trip for personal minor injuries and illnesses; for company, the employee is present at the reasons while on a business trip, such example, the final rule also no longer scene as a condition of employment, as a vacation or sight-seeing excursion, requires employers to record minor and any resulting injury would be work- to visit relatives, or for some other illnesses on the Log. related. personal purpose. The final rule’s travel-related Preexisting Conditions Employees on Travel Status provisions (at paragraph 1904.5(b)(6)) Paragraph 1904.5(b)(5) stipulates that The final rule continues (at are essentially identical to those pre-existing conditions, for § 1904.5(b)(6)) OSHA’s longstanding proposed (63 FR 4063), with only minor recordkeeping purposes, are conditions practice of treating injuries and illnesses editorial changes, and are also parallel that resulted solely from a non-work- that occur to an employee on travel to those for determining the work- related event or exposure that occurs status as work-related if, at the time of relationship of traveling employees outside the employer’s work the injury or illness, the employee was under the former recordkeeping system environment. Pre-existing conditions engaged in work activities ‘‘in the (Ex. 2, pp. 36, 37). OSHA received also include any injury or illness that interest of the employer.’’ Examples of various comments and suggestions the employee experienced while such activities include travel to and about how best to determine work working for another employer. from customer contacts, conducting job relationship for traveling employees. A tasks, and entertaining or being Off Premises Determinations few commenters endorsed OSHA’s entertained if the activity is conducted proposed approach (see, e.g., Exs. 15: Employees may be injured or become at the direction of the employer. 199, 396, 406). Other commenters The final rule contains three ill as a result of events or exposures believe, however, that employer control exceptions for travel-status situations. away from the employer’s of, or the authority to control, the work The rule describes situations in which establishment. In these cases, OSHA environment should be determinative injuries or illnesses sustained by proposed to consider the case work- because activities outside the traveling employees are not considered related only if the employee was employer’s control fall outside the scope work-related for OSHA recordkeeping engaged in a work activity or was of the employer’s safety and health purposes and therefore do not have to present as a condition of employment program (see, e.g., Exs. 15: 335, 396, be recorded on the OSHA 300 Log. First, (61 FR 4063). In the final rule, 409, 424). The comments of the Dow when a traveling employee checks into (paragraph 1904.5(b)(1)) the same Chemical Company (Ex. 15: 335) are a hotel, motel, or other temporary concept is carried forward in the typical of these views: definition of the work environment, residence, he or she is considered to which defines the environment as have established a ‘‘home away from [t]ravel on public carriers such as including the establishment and any home.’’ At this time, the status of the commercial airlines, trains, and taxi services employee is the same as that of an or pre-existing conditions that are aggravated other location where one or more during normal unencumbered body motions, employees are working or are present as employee working at an establishment or injuries that occur off-the-job but do not a condition of their employment. who leaves work and is essentially ‘‘at impair someone until they arrive at work are Thus, when employees are working or home’’. Injuries and illnesses that occur all beyond the control of the employer and conducting other tasks in the interest of at home are generally not considered the scope of any safety and health program. their employer but at a location away work related. However, just as an The commercial plane that crashes while the from the employer’s establishment, the employer may sometimes be required to employee was flying on company business or work-relatedness of an injury or illness record an injury or illness occurring to the taxi accident while the employee was trying to get to the airport to fly on company that arises is subject to the same an employee working in his or her business are events which, while tragic, are decision making process that would home, the employer is required to beyond the scope of an employer’s control occur if the case had occurred at the record an injury or illness occurring to and beyond the reasonable reach of that establishment itself. The case is work- an employee who is working in his or employer’s safety and health program.
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However, as discussed in the Legal recorded if it meets one or more of the 100% of their time is engaged in work-related Authority section and the introduction other criteria (death, medical treatment, activities. Employees engage in personal and to the work-relationship section of the etc.). The gastroenteritis example social activities while traveling on company preamble, OSHA has decided not to provided by the AAMA is one type of business that is not for the direct benefit of the company nor a condition of employment limit the recording of occupational injury or illness that may occur in this and which cannot be impacted by an injuries and illnesses to those cases that situation, but employees are also injured employer’s safety or health program. Often are preventable, fall within the in accidents while transporting clients there is ‘‘free time’’ while traveling and employer’s control, or are covered by to business-related events at the employees engage in a myriad of activities the employer’s safety and health direction of the employer or by other such as shopping, sightseeing, dining out program. The issue is not whether the events or exposures arising in the work with friends or family that may be in the conditions could have, or should have, environment. area, and the like. These are activities that do been prevented or whether they were On the other hand, not all injuries and not benefit the company and are outside the company’s control or reasonable reach of its controllable, but simply whether they illnesses sustained in the course of safety and health programs. These are are occupational, i.e., are related to business-related entertainment are activities which, if the employee were work. This is true regardless of whether reportable. To be recordable, the engaged in them at their normal work the employee is injured while on travel entertainment activity must be one that location, would not be recordable; but just by or while present at the employer’s the employee engages in at the direction the fact that they happen to be traveling for workplace. An employee who is injured of the employer. Business-related business purposes raises these otherwise in an automobile accident or killed in entertainment activities that are non-recordable cases into those subject to the recordkeeping rule. an airline crash while traveling for the undertaken voluntarily by an employee company has clearly experienced a in the exercise of his or her discretion OSHA agrees with Dow that there are work-related injury that is rightfully are not covered by the rule. For situations where an injury or illness included in the OSHA injury and illness example, if an employee attending a case involving an employee who is on records and the Nation’s occupational professional conference at the direction travel status should be excluded from injury and illness statistics. As the of the employer goes out for an evening the records. There is no value in American Industrial Hygiene of entertainment with friends, some of recording injuries and illnesses that Association (Ex. 15: 153) remarked: whom happen to be clients or would not be recorded under non-travel customers, any injury or illness circumstances. For example, there is no The workforce is increasingly made up of service sector jobs. Computers, materials resulting from the entertainment value to including in the statistics an movement, travel, violence are all emerging activities would not be recordable. In injury sustained by an employee who and increasing sources of occupational injury this case, the employee was socializing slips and falls in a motel room shower and illness. Many of these newer trends in after work, not entertaining at the or who is injured in an automobile cases may not involve lost workdays, but are direction of the employer. Similarly, the accident while on personal business, or recordable and significant to the workforce fact that an employee joins a private becomes the victim of random street none the less. Many of the clean, non- club or organization, perhaps to violence while doing personal shopping manufacturing employers who were ‘‘network’’ or make business contacts, on a business trip. OSHA is therefore traditionally exempt from recordkeeping have risk in these and other emerging areas does not make any injury that occurs continuing the Agency’s practice of about which OSHA should be collecting data. there work-related. excluding certain cases while Two commenters recommended that employees are in travel status and Two commenters specifically objected OSHA eliminate the exceptions for applying the exceptions to the to the inclusion of cases involving client determining work-relationship while geographic presumption in the final rule entertainment (Ex. 15: 409, 424). The employees are on travel and simply to those occurring while the worker is American Association of Automobile require all injuries and illnesses traveling. Manufacturers (AAMA) remarked: occurring while an employee is on The Department of Energy (Ex. 15: AAMA agrees with OSHA that injuries/ travel status to be considered work- 163) expressed a concern about overseas illnesses to employees during travel status related (Exs. 15: 350, 418). For example, travel, remarking ‘‘For employees who are work-related and recordable. However, the AFL–CIO (Ex. 15: 418) suggested: travel in the U.S., the standard makes AAMA takes strong exception to the We would also strongly encourage the sense. For employees who travel out of inclusion of ‘entertaining or being the country, additional burdens to them entertained for the purpose of transacting, Agency to re-evaluate [proposed] Appendix discussing, or promoting business.’ We find A Section C ‘‘Travel Status’’. The AFL–CIO are generally incurred. Travelers to the notion of recording an illness for an believes that employees in ‘‘travel status’’ tropical locations or other areas with employee, while he/she was engaged in a (e.g., traveling on company business) should different fauna and microbes may incur business related dinner, and subsequently be considered engaged in work-related diseases that are not indigenous to the suffering acute onset of diarrhea leading to activities during ALL of their time spent on U.S.’’ In response, OSHA notes that the hospitalization for gastroenteritis, to be the trip. This includes all travel, job tasks, recordkeeping regulation does not apply entertaining and other activities occurring inappropriate. OSHA needs to remove this to travel outside the United States obligation from the final rule. (Ex. 15: 409) during ‘‘travel status.’’ because the OSH Act applies only to the OSHA does not agree with this OSHA believes that expanding the confines of the United States (29 U.S.C. comment, because the Agency believes concept of work-related travel to § 652(4)) and not to foreign operations. that employees who are engaged in include all of the time the worker Therefore, the OSHA recordkeeping management, sales, customer service spends on a trip would be inconsistent regulation does not apply to non-U.S. and similar jobs must often entertain with the tests of work-relationship operations, and injuries or illnesses that clients, and that doing so is a business governing the recording of other injuries may occur to a worker traveling outside activity that requires the employee to and illnesses and would therefore skew the United States need not be recorded work at the direction of the employer the statistics and confuse employers. As on the OSHA 300 Log. while conducting such tasks. If the the Dow Chemical Company (Ex. 15: employee is injured or becomes ill 335) stated: Working at Home while engaged in such work, the injury While the employee is traveling for the The final rule also includes or illness is work-related and should be benefit of the company, it cannot be said that provisions at § 1904.5(b)(7) for
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determining the work-relatedness of A large number of commenters employee to correct unsafe conditions in the injuries and illnesses that may arise objected to the proposed approach, home (e.g., frayed carpet which presents a when employees are working at home. however (see, e.g., Exs. 65, 66, 78, 89, tripping hazard; overloaded electrical wiring or use of extension cords; etc.) as a condition When an employee is working on 105, 111, 123, 194, 200, 225, 239, 260, of employment? If so, who must pay the cost company business in his or her home 262, 265, 277, 288, 330, 335, 341, 345, of necessary home improvements? and reports an injury or illness to his or 360, 387, 393, 401, 406, 409, 430, 434, her employer, and the employee’s work 440). Most of these commenters objected OSHA has recently issued a activities caused or contributed to the because of the employer’s perceived compliance directive (CPL 2–0.125) injury or illness, or significantly inability to control working conditions containing the Agency’s response to aggravated a pre-existing injury, the case in the home environment (see, e.g., Exs. many of the questions raised by this is considered work-related and must be 15: 89, 163, 194, 239, 262, 288, 330, 345, commenter. That document clarifies further evaluated to determine whether 360). For example, the Fort Howard that OSHA will not conduct inspections it meets the recording criteria. If the Corporation commented: of home offices and does not hold injury or illness is related to non-work employers liable for employees’ home Fort Howard strongly opposes OSHA’s offices. The compliance directive also activities or to the general home proposal to consider any injuries and notes that employers required by the environment, the case is not considered illnesses as ‘‘work-related’’ if it occurs while recordkeeping rule to keep records ‘‘will work-related. the employee is performing work for pay or continue to be responsible for keeping The final rule includes examples to compensation in the home if the injury or illness is directly related to the performance such records, regardless of whether the illustrate how employers are required to of the work. Employers have absolutely no injuries occur in the factory, in a home record injuries and illnesses occurring control over employees’ homes. They cannot office, or elsewhere, as long as they are at home. If an employee drops a box of oversee employees who are doing the work work-related, and meet the recordability work documents and injures his or her nor can they effectively monitor the manner criteria of 29 CFR Part 1904.’’ foot, the case would be considered the work is conducted or the environment in With more employees working at work-related. If an employee’s fingernail which it is conducted. OSHA’s proposal home under various telecommuting and was punctured and became infected by could place employers in the role of insuring flexible workplace arrangements, OSHA a needle from a sewing machine used to the home as a safe work environment. (Ex. 15: 194) believes that it is important to record perform garment work at home, the injuries and illnesses attributable to injury would be considered work- Again, as discussed above, OSHA is work tasks performed at home. If these related . If an employee was injured concerned that all non-minor work- cases are not recorded, the Nation’s because he or she tripped on the family related cases be recorded on the Log and injury and illness statistics could be dog while rushing to answer a work become part of the national statistics, skewed. For example, placing such an phone call, the case would not be both because these injuries and illnesses exclusion in the final rule would make considered work-related. If an employee provide information about the safety it difficult to determine if a decline in working at home is electrocuted because and health of the work environment to the overall number or rate of of faulty home wiring, the injury would employers, employees, and safety and occupational injuries and illnesses is not be considered work-related. health professionals and because attributable to a trend toward working at collecting them may allow previously This provision is consistent with home or to a change in the Nation’s obscured safety and health issues to be longstanding Agency practice under the actual injury and illness experience. identified. Injuries and illnesses former recordkeeping system. It was Further, excluding these work-related occurring while the employee is also included in the proposed rule (63 injuries and illnesses from the working for pay or compensation at FR 4063), which read ‘‘An injury or recordkeeping system could potentially home should be treated like injuries and illness will be considered work-related obscure previously unidentified causal illnesses sustained by employees while if it occurs while the employee is connections between events or traveling on business. The relevant performing work for pay or exposures in the work environment and question is whether or not the injury or compensation in the home, if the injury these incidents. OSHA is unwilling to illness is work-related, not whether or illness is directly related to the adopt an exception that would have there is some element of employer performance of work rather than the these potential effects. As the BF control. The mere recording of these general home environment or setting.’’ Goodrich Company (Ex. 15: 146) said, injuries and illnesses as work-related ‘‘[s]pecific criteria to address employee A number of commenters supported cases does not place the employer in the work-at-home situations is appropriate OSHA’s proposed approach to recording role of insuring the safety of the home to assure consistent reporting in our the injuries and illnesses of employees environment. changing work environment.’’ who work at home (see, e.g., Exs. 15: 31, The law firm of Leonard, Ralston, 146, 176, 231, 273, 301, 336, 348, 375, Stanton & Remington, Chartered (Ex. 15: Section 1904.6 Determination of New 406, 409, 413, 427, 429). The comments 430) raised questions about OSHA’s role Cases of the Council of Community Blood when employees perform office work Employers may occasionally have Centers (CCBC) (Ex. 15: 336) are typical activities in a home office: difficulty in determining whether new of the views of these participants: The increasing incidence of home work (or signs or symptoms are due to a new CCBC believes this is a good rule and ‘‘telecommuting’’) raises some interesting event or exposure in the workplace or should stay on the books. Accident or illness issues. For example, does OSHA assume that whether they are the continuation of an should be work-related if it occurs at home its right of inspection extends to an existing work-related injury or illness. and is related to performance of the work, not employee’s private home? If so, has the Most occupational injury and illness the general home environment or setting. Agency examined the constitutionality of this cases are fairly discrete events, i.e., Workers often are off the premises in a position? What control does the Agency variety of situations, such as travel, providing assume an employer has over working events in which an injury or acute repair services, or consultation. Just as conditions in a private home? Does the illness occurs, is treated, and then injuries in these situations are reportable, so Agency expect the employer to inspect its resolves completely. For example, a should those during work at home, if employees’ homes to identify unsafe worker may suffer a cut, bruise, or rash authorized by the employer. conditions? Must the employer require an from a clearly recognized event in the
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workplace, receive treatment, and sensitization (contact) dermatitis, that authoritative (best documented, best recover fully within a few weeks. At recur if the ill individual is exposed to reasoned, or most persuasive) evidence some future time, the worker may suffer the agent (or agents, in the case of cross- or recommendation. another cut, bruise or rash from another reactivities or RADs) that triggers the The final rule’s provisions on the workplace event. In such cases, it is illness again. It is typical, but not recording of new cases are nearly clear that the two injuries or illnesses always the case, for individuals with identical to interpretations of new case are unrelated events, and that each these conditions to be symptom-free if recordability under the former rule. represents an injury or illness that must exposure to the sensitizing or OSHA has historically recognized that it be separately evaluated for its precipitating agent does not occur. is generally an easier matter to recordability. The final rule provides, at paragraph differentiate between old and new cases However, it is sometimes difficult to (b)(1), that the employer is not required that involve injuries than those determine whether signs or symptoms to record as a new case a previously involving illnesses: the Guidelines are due to a new event or exposure, or recorded case of chronic work-related stated that ‘‘the aggravation of a are a continuance of an injury or illness illness where the signs or symptoms previous injury almost always results that has already been recorded. This is have recurred or continued in the from some new incident involving the an important distinction, because a new absence of exposure in the workplace. employee * * * [w]hen work-related, injury or illness requires the employer This paragraph recognizes that there are these new incidents should be recorded to make a new entry on the OSHA 300 occupational illnesses that may be as new cases on the OSHA forms, Log, while a continuation of an old diagnosed at some stage of the disease assuming they meet the criteria for recorded case requires, at most, an and may then progress without regard to recordability * * *’’ (Ex. 2, p. 31). updating of the original entry. Section workplace events or exposures. Such However, the Guidelines also stated that 1904.6 of the final rule being published diseases, in other words, will progress ‘‘certain illnesses, such as silicosis, may today explains what employers must do without further workplace exposure to have prolonged effects which recur over to determine whether or not an injury or the toxic substance(s) that caused the time. The recurrence of these symptoms illness is a new case for recordkeeping disease. Examples of such chronic work- should not be recorded as a new case on purposes. related diseases are silicosis, the OSHA forms. * * * Some The basic requirement at § 1904.6(a) tuberculosis, and asbestosis. With these occupational illnesses, such as certain states that the employer must consider conditions, the ill worker will show dermatitis or respiratory conditions, an injury or illness a new case to be signs (such as a positive TB skin test, a may recur as the result of new evaluated for recordability if (1) the positive chest roentgenogram, etc.) at exposures to sensitizing agents, and employee has not previously every medical examination, and may should be recorded as new cases.’’ experienced a recorded injury or illness experience symptomatic bouts as the OSHA developed and included of the same type that affects the same disease progresses. specific guidance for evaluating when part of the body, or (2) the employee Paragraph 1904.6(b)(2) recognizes that cumulative trauma disorders (CTDs) previously experienced a recorded many chronic occupational illnesses, (ergonomic injuries and illnesses, now injury or illness of the same type that however, such as occupational asthma, known as musculoskeletal disorders, or affected the same part of the body but RADs, and contact dermatitis, are MSDs) should be recorded as new cases had recovered completely (all signs and triggered by exposures in the workplace. in the Ergonomics Program symptoms of the previous injury or The difference between these conditions Management Guidelines For illness had disappeared) and an event or and those addressed in paragraph Meatpacking Plants (Ex. 11, p. 15) exposure in the work environment 1904.6(b)(1) is that in these cases which were published in 1990. These caused the injury or illness, or its signs exposure triggers the recurrence of Guidelines provided: or symptoms, to reappear. symptoms and signs, while in the The implementation question at chronic cases covered in the previous If and when an employee who has § 1904.6(b)(1) addresses chronic work- paragraph, the symptoms and signs experienced a recordable CTD becomes related cases that have already been symptom free (including both subjective recur even in the absence of exposure in symptoms and physical findings), any recorded once and distinguishes the workplace. This distinction is recurrence of symptoms establishes a new between those conditions that will consistent with the position taken by case. Furthermore, if the worker fails to progress even in the absence of OSHA interpretations issued under the return for medical care within 30 days, the workplace exposure and those that are former recordkeeping rule (see the case is presumed to be resolved. Any visit to triggered by events in the workplace. Guidelines discussion below). The a health care provider for similar complaints There are some conditions that will Agency has included provisions related after the 30-day interval ‘‘implies reinjury or progress even in the absence of further to new cases/continuations of old cases reexposure to a workplace hazard and would exposure, such as some occupational in the final rule to clarify its position represent a new case.’’ cancers, advanced asbestosis, and ensure consistent reporting. Thus, the former rule had different tuberculosis disease, advanced Paragraph 1904.6(b)(3) addresses how ‘‘new case’’ criteria for musculoskeletal byssinosis, advanced silicosis, etc. to record a case for which the employer disorders than for other injuries and These conditions are chronic; once the requests a physician or other licensed illnesses. (For the final rule’s recording disease is contracted it may never be health care professional (HCP) to make criteria for musculoskeletal disorders, cured or completely resolved, and a new case/continuation of an old case see Section 1904.12.) therefore the case is never ‘‘closed’’ determination. Paragraph (b)(3) makes OSHA’s recordkeeping NPRM under the OSHA recordkeeping system, clear that employers are to follow the proposed a single approach to the even though the signs and symptoms of guidance provided by the HCP for identification of new cases for all the condition may alternate between OSHA recordkeeping purposes. In cases injuries and illnesses, including remission and active disease. where two or more HCPs make musculoskeletal disorders. The proposal However, there are other chronic conflicting or differing would have required the recurrence of work-related illness conditions, such as recommendations, the employer is a pre-existing injury or illness to be occupational asthma, reactive airways required to base his or her decision considered a new case to evaluate for dysfunction syndrome (RADs), and about recordation based on the most recordability if (1) it resulted from a
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new work event or exposure, or (2) 45 under- or overreporting; (3) it would over-reporting of occupational injuries days had elapsed since medical conflict with workers’ compensation and illnesses (see, e.g., Exs. 15: 119, 127, treatment, work restriction, or days requirements; (4) it was too restrictive 136, 137, 141, 171, 199, 224, 266, 278, away from work had ceased, and the last (5) it would encourage excessive use of 305, 337, 424, 425). The comments of sign or symptom had been experienced. the health care system; and (6) it should the NYNEX Corporation (Ex. 15: 199) The proposed approach would, in effect, be replaced by a physician or other illustrate the general concerns of these have extended the recurrence criteria for licensed health care professional’s commenters: musculoskeletal disorders to all injury opinion. We do not agree, however, with the second and illness cases, but would have A number of commenters supported criterion of a symptom free 45 day period increased the no-medical-intervention OSHA’s proposed approach (see, e.g., following medical treatment, restriction, or interval from 30 to 45 days. A Exs. 15: 27, 65, 70, 151, 152, 154, 179, days away from work. This criterion fails to recurrence of a previous work-related 180, 181, 185, 186, 188, 214, 331, 332, take into account the persistent nature of injury or illness would have been 336, 359, 387, 396, 424, 428). many chronic or recurring conditions, i.e., presumed, under the proposed Representative of these comments was back strains, musculoskeletal disorders, one from The Fertilizer Institute (TFI): where the symptoms may disappear for a approach, to be a new case if (1) it period of time, but the underlying conditions resulted from a new work accident or TFI agrees with OSHA’s proposed 45 day are still present. If adopted, this criterion exposure, or (2) 45 days had elapsed criterion for the recording of new cases. could cause injury and illness data to be since medical treatment had been Concerning OSHA’s solicitation of comments artificially inflated with the onset of ‘‘new’’ administered or restricted work activity on whether different conditions should have cases, which in fact are recurrences of or days away had occurred and since different evaluation periods, TFI encourages existing conditions. This in turn could lead OSHA to adopt a single time period for all to false epidemics and a diversion of the last sign or symptom had been conditions. Different evaluation periods for experienced. This proposed resources from more legitimate workplace different conditions will lead to complexity concerns. presumption would have been and confusion without any resulting benefit rebuttable if there was medical evidence to recordkeeping (Ex. 15: 154). On the other hand, William K. indicating that the prior case had not Principe of Constangy, Brooks & Smith, Other commenters supported the LLC (Ex. 15: 428) was concerned that been resolved. In the proposal, OSHA concept of using a time limit for also asked for input on the following the proposed method would result in determining new cases, but thought the fewer recordable cases: questions related to new case recording: number of days should be higher (see, OSHA solicits comment on the e.g., Exs. 15: 45, 49, 61, 82, 89, 131, 147, Since many employees will report that appropriateness of the 45-day interval. Is 45 184, 235, 331, 389). Some commenters they continued to experience symptoms or days too short or long of a period? If so, that they continue to have good days and bad generally opposed the time limit days, the new rule will result in many fewer should the period be 30 days? 60 days? 90 concept but made recommendations for days? or some other time period? Should recordable CTD [cumulative trauma disorder] different conditions (e.g. back cases, asthma longer time periods if OSHA decided in cases. In fact, at some hand-intensive manual cases etc.) have different time intervals for the final rule to adopt a time limit (see, operations, the number of CTD cases should evaluating new cases? e.g., Exs. 15: 38, 79, 89, 111, 136, 137, be drastically reduced under the proposal OSHA is also seeking input for an 141, 194, 224, 246, 266, 278, 288, 299, that 45 days must elapse since the last improved way to evaluate new cases. Should 313, 335, 352, 353, 430). The longer symptom. There is something fundamentally a new category of cases be created to capture intervals suggested by commenters wrong with a recordkeeping system that one information on recurring injuries and included 60 days (see, e.g., Exs. 15: 82, year shows a high incidence of CTDs and the illnesses? One option is to add an additional next shows a dramatic decline, when the ‘‘check box’’ column to the proposed OSHA 389); 90 days (see, e.g., Exs. 15: 38, 49, underlying conditions remain virtually Form 300 for identifying those cases that are 79, 147, 184, 246, 299, 313, 331, 335, identical. 352, 353, 430); 120 days (Ex. 15: 194); recurrences of previously recorded injuries United Parcel Service (Ex. 15: 424) and illnesses. This would allow employers, 180 days (see, e.g., Exs. 15: 61, 111, 136, stated that there should be no time limit employees and OSHA inspectors to 137, 141, 224, 266, 278, 288); one year to determining whether or not a case is differentiate between one time cases and (Ex. 15: 131); and five years (Ex. 15: 89). those that are recurrent, chronic conditions. A large number of commenters a recurrence: This approach may help to remove some of opposed the proposed approach for In UPS’s experience, however, it is a the stigma of recording these types of identifying new cases that would then simple process to determine, by medical disorders and lead to more complete records. referral or by examining prior medical OSHA solicits input on this approach. Will be tested for their recordability (see, e.g., Exs. 15: 33, 38, 39, 41, 78, 79, 89, 95, history, whether a condition is a recurrence. a recurrence column reduce the stigma of This has long been the practice, and indeed recording these types of cases? Should 102, 107, 111, 119, 127, 133, 136, 137, the [proposal] contemplates it will remain recurrences be included in the annual 141, 153, 171, 176, 194, 199, 203, 224, the practice through the first 44 days. It does summaries? Should a time limit be used to 225, 231, 246, 266, 273, 278, 281, 288, not become any more complex on the 45th, limit the use of a recurrence column? 289, 299, 301, 305, 307, 308, 313, 335, 50th, or 100th day; and if in an individual In response to the views and evidence 337, 341, 346, 348, 352, 353, 375, 395, employer’s judgment it does, then the presented by commenters to the record, 405, 410, 413, 424, 425, 428, 430, 440). employer may of course report the condition OSHA has decided not to adopt the Some commenters argued that the as a new injury. proposed approach to the recording of proposed 45-day interval was arbitrary Three commenters disapproved of new/recurring cases in the final rule. (see, e.g., Exs. 15: 119, 203, 289, 313, OSHA’s approach because it would Commenters expressed a wide variety of 352, 353, 395), that it conflicted with have been applicable to all recurrences views about the recording of recurring workers’ compensation new case and they believe that each case must be injury and illness cases. Some determinations (see, e.g., Exs. 15: 38, evaluated on its own merits (Exs. 15: 78, commenters favored the proposed 119, 136, 137, 141, 224, 266, 278), that 184, 203). The International Dairy Foods approach as drafted. Others, however, the approach would not work in the Association (IDFA) described this objected to it on many grounds: (1) the case of chronic injury (see, e.g., Exs. 33; concern succinctly: ‘‘Each injury has its time limit should be longer or shorter 15: 176, 199, 231, 273, 299, 301, 305, own resolution based on the injury, than the 45 days proposed; (2) the 308, 337, 346, 348, 375), or that the illness, degree, and numerous other proposed approach would result in proposed 45-day rule would result in factors that are characteristic of the
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individual. As such, it is impossible for fall and fractures his or her wrist, and commenters recommended that the OSHA or anyone else to set a valid four months later falls again and decision to record should be based number of days even if the resolution fractures the wrist in the same place. solely on the opinions of a physician or period is set on the basis of the type of This occurrence is not a continuation of other licensed health care professional illness/injury’’ (Ex. 15: 203). the fracture but rather a new injury (see, e.g., Exs. 33: 15: 39, 95, 107, 119, In addition, the proposed 45-day whose recordability must be evaluated. 127, 133, 225, 289, 332, 335, 341, 387, approach was interpreted differently by The final rule’s approach to recurrence/ 424, 440). The National Grain and Feed different commenters. For example, new case determinations avoids this and Association, the National Oilseed David E. Jones of the law firm Ogletree, other recording problems because it Processors Association, and the Grain Deakins, Nash, Smoak & Stewart includes no day count limit and relies Elevator and Processing Society (Ex. 15: (ODNSS) suggested: on one of the basic principles of the 119) commented as a group and The words ‘‘either’’ and ‘‘or’’ * * * should recordkeeping system, i.e., that injuries recommended that ‘‘[r]elying on a be deleted because an aggravation of the or illnesses arising from events or physician’s opinion rather than an previously recorded injury or illness brought exposures in the workplace must be arbitrary timeframe would simplify about within the 45-day period would evaluated for recordability. recordkeeping and help ensure that the require the entry of a new case at that time, In response to those commenters who records are consistent with existing and thus negating the 45-day rule, leading to the raised issues about inconsistency accepted workers’ compensation plans.’’ adverse result that the 45-day rule otherwise between the OSHA system and workers’ Other commenters recommended that, would rectify. Accordingly, ODNSS recommends * * * ‘‘A recurrence of a compensation, OSHA notes that there is if OSHA adopted a day count time limit, previous work-related injury or illness is a no reason for the two systems, which the rule should specifically allow a new case when it (1) results from a new work serve different purposes (recording physician’s opinion to be used to refute event or exposure and (2) 45 days have injuries and illnesses for national a new case determination (see, e.g., Exs. elapsed since medical treatment, restricted statistical purposes and indemnifying 15: 65, 181, 184, 203). Several others work activity, or days away from work (as workers for job-related injuries and simply asked OSHA to provide more applicable) were discontinued and the illnesses) to use the same definitions. guidance on what type of medical employee has been symptom-free (including Accordingly, the final rule does not rely evidence could be used in new case both subjective symptoms and physical findings) (emphasis added) (Ex. 15: 406). on workers’ compensation determinations (see, e.g., Exs. 15: 176, determinations to identify injuries or 231, 273, 301, 430). The National In the final rule, OSHA has decided illness cases that are to be considered Wholesale Druggists’ Association against the proposed approach of new cases for recordkeeping purposes. (NWDA) suggested that ‘‘OSHA should determining case resolution based on a Another group of commenters argued also include a provision that the certain number of days during which that the 45-day recording requirement employee obtain written approval from the injured or ill employee did not lose would lead employers to spend money a doctor that the employee’s condition time, receive treatment, have signs or on unnecessary and costly health care has been resolved before going back to symptoms, or be restricted to light duty. (see, e.g., Exs. 15: 136, 137, 141, 224, work. Determining the end of treatment OSHA agrees with those commenters 266, 278, 305, 346, 348, 375). The views should be left in the hands of a medical who argued that the proposed approach of the American Petroleum Institute professional and OSHA should require was too prescriptive and did not allow (API) are representative: ‘‘OSHA’s some type of documentation to that for the variations that naturally exist proposal would also add substantially to effect’’ (Ex. 15: 185). from one injury and illness case to the employers’ costs since it could require OSHA has not included any next. Further, the record contains no employees to make frequent trips to a provisions in the final rule that require convincing evidence to support a set health care professional, even if an employer to rely on a physician or number of days as appropriate. OSHA symptom free, just to avoid being other licensed health care professional thus agrees with those commenters who recorded repeatedly on the OSHA log as or that tell a physician or other licensed pointed out that adoption of a fixed time new cases’’ (Ex. 15: 375). Union Carbide health care professional how to treat an interval would result in the Corporation (Ex. 15: 396) also remarked injured or ill worker, or when to begin overrecording of some injury and illness on the proposed approach’s potential or end such treatment. In the final rule cases and the underrecording of others, incentive for medical follow-up, but OSHA does require the employer to and thus would impair the quality of the viewed such an incentive as a positive follow any determination a physician or records. phenomenon, stating ‘‘One benefit [of other licensed health care professional Further, OSHA did not intend to the proposed approach] is that it has made about the status of a new case. create an ‘‘injury free’’ time zone during encourages medical follow-up for the That is, if such a professional has which an injury or illness would not be employee.’’ Although the proposed determined that a case is a new case, the considered a new case, regardless of approach would not have ‘‘required’’ an employer must record it as such. If the cause, as ODNSS suggested. Instead, employer to send a worker to a professional determines that the case is OSHA proposed that a case be physician or other licensed health care a recurrence, rather than a new case, the considered a new case if either professional, and OSHA is not employer is not to record it a second condition applied: the case resulted persuaded that employers would choose time. In addition, the rule does not from a new event or exposure or 45 days to spend money in this way merely to require the employee, or the employer, had elapsed without signs, symptoms, avoid recording an occasional case as a to obtain permission from the physician or medical treatment, restricted work, or new case, elimination of any set day- or other licensed health care days away from work. There are clearly count interval from the final rule will professional before the employee can cases where an event or exposure in the also have made the concerns of these return to work. OSHA believes that the workplace would be cause for recording commenters moot. employer is capable of, and often in the a new case. A new injury may manifest OSHA also received a number of best position to, make return-to-work the same signs and symptoms as the suggestions about the role of physicians decisions. previous injury but still be a new injury and other licensed health care Southern California Edison (Ex. 15: and not a continuation of the old case professionals (HCP) in new case 111) expressed concern that imposing a if, for example, an employee sustains a determinations. A number of day limit would not take differences
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between types of injuries and illnesses 176, 231, 273, 301, 307, 308, 405, 410, performs forceful manual handling into account, stating ‘‘A recurrence of a 413, 425). Representative of these injures his or her back in 1998, resulting previous work-related injury or illness comments was one from the Voluntary in days away from work, and the case should only be considered a new case Protection Programs Participants’ is entered into the records. In 1999 this when the injury or illness has Association (VPPPA), which worker has another episode of severe completely healed. Severe muscle and recommended that OSHA ‘‘adopt a work-related back pain and must once nerve damage can take many weeks or definition for new case that requires the again take time off for treatment and months to properly heal.’’ The final rule occurrence of a new work-related event recuperation. The question is whether takes such differences into account, as to trigger a new case. In the absence of or not the new symptoms, back pain, are follows. If the previous injury or illness this, the case would be considered continuing symptoms of the old injury, has not healed (signs and symptoms recurring’’ (Ex. 15: 425). OSHA agrees or whether they represent a new injury have not resolved), then the case cannot with the VPPPA that if no further event that should be evaluated for its be considered resolved. The employer or exposure occurs in the workplace to recordability as a new case. The answer may make this determination or may aggravate a previous injury or illness, a in this case lies in an analysis of rely on the recommendation of a new case need not be recorded. whether or not the injured or ill worker physician or other licensed health care However, if events or exposures at work has recovered fully between episodes, professional when doing so. Clearly, if cause the same symptoms or signs to and whether or not the back pain is the the injured or ill employee is still recur, the final rule requires employers result of a second event or exposure in exhibiting signs or symptoms of the to evaluate the injury or illness to see the workplace, e.g., continued manual previous injury or illness, the malady if it is a new case and is thus recordable. handling. If the worker has not fully has not healed, and a new case does not The OSHA statistical system is recovered and no new event or exposure have to be recorded. Similarly, if work designed to measure the incidence, has occurred in the workplace, the case activities aggravate a previously rather than prevalence, of occupational is considered a continuation of the recorded case, there is no need to injury and illness. Incidence measures previous injury or illness and is not consider recording it again (although capture the number of new occupational recordable. there may be a need to update the case injuries and illnesses occurring in a One reason for the confusion that is information if the aggravation causes a given year, while prevalence measures apparent in some of the comments on more severe outcome than the original capture the number of such cases the proposal’s approach to the recording case, such as days away from work). existing in a given year (prevalence of recurrences may be the custom that The Quaker Oats Company (Ex. 15: measures thus capture cases without developed over the years of referring to 289) suggested that employers should be regard to the year in which they onset). recordable recurrences of work-related permitted by the rule to decide whether Prevalence measures would therefore injuries and illnesses as ‘‘new cases.’’ a given case was a new case or not, capture all injuries and illnesses that See for example, 61 FR 4037/1 without requirements in the rule: occurred in a given year as well as those (‘‘employers may be dealing with a re- unresolved injuries and illnesses that injury or recurrence of a previous case The 45 day interval on determining if a persist from previous years. The and must decide whether the recurrence case is a new one or should be counted under difference is illustrated by the following is a ‘‘new case’’ or a continuation of the a previous injury should be left to the discretion of the employer. They have the cases: (1) A worker experiences a cut original case.’’) The term ‘‘new case’’ most intimate knowledge of the work that requires sutures and heals tends to suggest to some that the case is environment, medical treatment of the completely before the year ends; this totally original, when in fact new cases affected employee and the status of their injury would be captured both by an for OSHA recordkeeping purposes work-related injury or illness. I will agree incidence or prevalence measure for include three categories of cases; (1) that it is a difficult matter to decide and to that particular year. (2) Another worker totally new cases where the employee assure consistency throughout industry retired last year but continues to receive has never suffered similar signs or * * * I believe that any number of days medical treatment for a work-related symptoms while in the employ of that would simply be an arbitrary attempt at respiratory illness that was first employer, (2) cases where the employee quantifying something that is best left to the recognized two years ago. This case has a preexisting condition that is medical judgment of a healthcare professional. would be captured in the year of onset significantly aggravated by activities at and each year thereafter until it resolves work and the significant aggravation Under the OSHA recordkeeping if a prevalence measure is used, but reaches the level requiring recordation, system, the employer is always the would be counted only once (in the year and (3) previously recorded conditions responsible party when it comes to of onset) if an incidence measure is that have healed (all symptoms and making the determination of the used. signs have resolved) and then have recordability of a given case. However, Because the OSHA system is intended subsequently been triggered by events or if OSHA did not establish consistent to measure the incidence of exposures at work. new case determination criteria, a occupational injury and illness, each Under the former rule and the final substantial amount of variability would individual injury or illness should be rule, both new injuries and recurrences be introduced into the system, which recorded only once in the system. must be evaluated for their work- would undermine the Agency’s goals of However, an employee can experience relatedness and then for whether they improving the accuracy and consistency the same type of injury or illness more meet one or more of the recording of the Nation’s occupational injury and than once. For example, if a worker cuts criteria; when these criteria are met, the illness data. Accordingly, OSHA has not a finger on a machine in March, and is case must be recorded. If the case is a adopted this suggested approach in the then unfortunate enough to cut the same continuation of a previously recorded final rule. finger again in October, this worker has case but does not meet the ‘‘new case’’ A number of commenters argued that clearly experienced two separate criteria, the employer may have to the occurrence of a new event, occupational injuries, each of which update the OSHA 300 Log entry if the exposure, or incident should be must be evaluated for its recordability. original case continues to progress, i.e., required to trigger the recording of a In other cases, this evaluation is not as if the status of the case worsens. For new case (see, e.g., Exs. 33, 15: 102, 171, simple. For example, a worker who example, consider a case where an
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employee has injured his or her back this problem in the final rule by might include episodes of occupational lifting a heavy object, the injury resulted carefully defining the circumstances asthma, reactive airways dysfunction in medical treatment, and the case was under which a chronic and previously syndrome (RADS), or contact allergic recorded as a case without restricted recorded injury or illness must be dermatitis, for example. work or days away. If the injury does considered closed and defining the Paragraph 1904.6(b)(3) recognizes the not heal and the employer subsequently circumstances under which a recurrence role of physicians and other licensed decides to assign the worker to is to be considered a new case and then health care professionals that the restricted work activity, the employer is evaluated to determine whether it meets employer may choose to rely on when required by the final rule to change the one or more of the recordability criteria. tracking a ‘‘new case’’ or making a OSHA’s proposal to apply a single case classification and to track the continuation of an old case criterion to the determination of the number of days of restricted work. If the determination. If a physician or other recordability of all recurrences of case is a previous work-related injury licensed health care professional previously recorded injuries and that did not meet the recording criteria determines that an injury or illness has illnesses received support from several and thus was not recorded, future been resolved, the employer must developments in the case may require it commenters (see, e.g., Exs. 15: 31, 61, consider the case to be resolved and to be recorded. For example, an 70, 154, 203, 396). The final rule uses record as a new case any episode that employee may suffer an ankle sprain one set of criteria for determining causes the signs and symptoms to recur tripping on a step. The employee is sent whether any injury or illness, including as a result of exposure in the workplace. to a health care professional, who does a musculoskeletal disorder, is to be On the other hand, if the HCP consulted not recommend medical treatment or treated as a new case or as the by the employer determines that the restrictions, so the case is not recorded continuation of an ‘‘old’’ injury or case is a chronic illness of the type at that time. If the injury does not heal, illness. First, if the employee has never addressed by paragraph 1904.6(b)(1), the however, and a subsequent visit to a had a recorded injury or illness of the employer would not record the case physician results in medical treatment, same type and affecting the same part of the case must then be recorded. the body, the case is automatically again. In either case, the employer OSHA and employers and employees considered a new case and must be would evaluate it for work-relatedness need data on recurring cases because evaluated for recordability. This and then determine whether the original recurrence is an important indicator of provision will handle the vast majority entry requires updating or the case severity over the long term. Just as the of injury and illness cases, which are meets the recording criteria. Paragraph number of days away is a useful new cases rather than recurrences or (b)(3) also recognizes that the employer indicator of health and safety risk at a case continuations. Second, if the may ask for input from more than one particular establishment, so is the total employee has previously had a recorded HCP, or the employer and employee number of injury and illness events and injury or illness of the same type and may each do so, and in such cases, the of exposures resulting in health affecting the same body part, but the rule requires the employer to rely on the consequences that occur in an employee has completely recovered one judged by the employer to be most establishment or industry. Further, any from the previous injury or illness, and authoritative. realistic assessment of occupational a new workplace event or exposure Adding a Recurrence Column to the safety and health conditions should causes the injury or illness (or its signs OSHA 300 Log reflect the fact that some but not all or symptoms) to reappear, the case is a injuries and illnesses have long-term recurrence that the employer must In the proposal, OSHA asked consequences. In other words, a safety evaluate for recordability. commenters whether the Log should and health analysis should give less The implementation section of include a column with a check-box that weight to an injury or illness that has a § 1904.6 describes these requirements could be marked if a case was a clear and relatively quick recovery and includes explanations applying to recurrence of a pre-existing condition without impairment of any kind and an two special circumstances. In the first (61 FR 4037). Some commenters injury or illness that is chronic in nature case, paragraph 1904.6(b)(1) the supported the proposed approach (see, or one that involves recurring episodes employee has experienced a chronic e.g., Exs. 15: 27, 39, 61, 65, 89, 154, 186, that are retriggered by workplace events injury or illness of a type that will 214, 235, 277, 299, 305, 332, 336). For or exposures. progress regardless of further workplace example, the National Association of Ignoring the fact that an occupational exposure. Cases to which this provision Manufacturers (NAM) suggested that, in injury or illness is a recurrence applies are serious, chronic illness lieu of adopting a 45-day time limit, occasioned by an event or exposure in conditions such as occupational cancer, OSHA should add a column to the Log: the workplace would result in an asbestosis, silicosis, chronic beryllium ‘‘If the Agency believes there is a need underestimate of the true extent of disease, etc. These occupational to track the number of recurring cases, occupational injury and illness and conditions generally continue to we believe the better approach would be deprive employers, employees, and progress even though the worker is to add a column to the log which would safety and health professionals of removed from further exposure. These permit the original entry for each injury essential information of use in illness conditions may change over time and be or illness to be updated in the event of prevention. The other extreme, associated with recurrences of a recurrence’’ (Ex. 15: 305). The requiring employers to record on-going symptoms, or remissions, but the signs American Association of Homes and signs or symptoms repeatedly, even in (e.g., positive chest roentgenogram, Services for the Aging (AAHSA) agreed: the absence of an event or exposure in positive blood test) generally continue the workplace, would result in to be present throughout the course of [t]here should be a column on the injury overstating the extent of illness. In terms and illness log for employers to check for the disease. reoccurring injuries. This addition would of the recordkeeping system, deciding The second kind of case, addressed in help the employer to identify possible how most appropriately to handle new paragraph 1904.6(b)(b)(2), requires patterns or problems associated with a cases requires a balanced approach that employers to record chronic illness specific job and find solutions. minimizes both overrecording and cases that recur as a result of exposures Recommendation: Add a column to the underrecording. OSHA has dealt with in the workplace. These conditions injury and illness log allowing the employer
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to check when an employee is having a job, medical treatment beyond first aid, the appropriateness of reporting certain repetitive injury or illness (Ex. 15: 214). loss of consciousness, or diagnosis as a kinds of fatalities to OSHA. These Other commenters did not support the significant injury or illness by a comments are addressed in the sections proposal’s approach to tracking physician or other licensed health care of this preamble devoted to work- recurrences (see, e.g., Exs. 15: 70, 78, professional. relationship and fatality reporting (sections 1904.5 and 1904.39, 136, 137, 141, 151, 152, 179, 180, 194, Paragraph 1904.7(a) 224, 266, 278). The comments of Kathy respectively). Lehrman, RN, Occupational Health Paragraph 1904.7(a) describes the basic requirement for recording an Paragraph 1904.7(b)(3) Days Away From Nurse (Ex. 15: 136) are representative of Work these comments: injury or illness in the OSHA recordkeeping system. It states that Paragraph 1904.7(b)(3) contains the The addition of a column to record employers must record any work-related requirements for recording work-related recurrent conditions would not reduce the stigma and would lead to increased health injury or illness that meets one or more injuries and illnesses that result in days care provider visits to avoid having an of the final rule’s general recording away from work and for counting the ongoing case labeled as a new case. * * * I criteria. There are six such criteria: total number of days away associated do not see the value of including a new death, days away from work, days on with a given case. Paragraph category of case designation. This runs restricted work or on job transfer, 1904.7(b)(3) requires the employer to counter to the simplification objective. medical treatment beyond first aid, loss record an injury or illness that involves After a review of the comments on of consciousness, or diagnosis by a one or more days away from work by this issue, OSHA has decided not to physician or other licensed heath care placing a check mark on the OSHA 300 include such a check-box on the Log. professional as a significant injury or Log in the space reserved for day(s) The final rule adds several columns to illness. Although most cases are away cases and entering the number of the OSHA 300 form to collect data on recorded because they meet one of these calendar days away from work in the the number of restricted workdays and criteria, some cases may meet more than column reserved for that purpose. This on various types of occupational one criterion as the case continues. For paragraph also states that, if the injuries and illnesses. The addition of example, an injured worker may employee is away from work for an these columns, and the decision to initially be sent home to recuperate extended time, the employer must provide more space on the Log to add (making the case recordable as a ‘‘days update the day count when the actual information on the case, has used up the away’’ case) and then subsequently number of days away becomes known. available space on the form. Requiring return to work on a restricted (‘‘light This requirement continues the day employers to record recurrences would duty’’) basis (meeting a second criterion, counting requirements of the former also be burdensome and make the rule that for restricted work). (see the rule and revises the days away more complex. Further, OSHA did not discussion in Section 1904.29 for requirements in response to comments propose such a requirement, and this information on how to record such in the record. issue raises questions not adequately cases.) Paragraphs 1904.7(b)(3)(i) through (vi) aired in the record. For example, if an implement the basic requirements. Paragraph 1904.7(b) employee has recurring episodes of low Paragraph 1904.7(b)(3)(i) states that the back pain, should the employer be Paragraph 1904.7(b) tells employers employer is not to count the day of the required to record each day the how to record cases meeting each of the injury or illness as a day away, but is employee experiences such pain as a six general recording criteria and states to begin counting days away on the recurring injury? OSHA is also unsure how each case is to be entered on the following day. Thus, even though an how recurrence data should be captured OSHA 300 Log. Paragraph 1904.7(b)(1) injury or illness may result in some loss and used in the Nation’s injury and provides a simple decision table listing of time on the day of the injurious event illness statistics. For example, would a the six general recording criteria and the or exposure because, for example, the separate data set on recurrences, similar paragraph number of each in the final employee seeks treatment or is sent to data on injuries and illnesses, be rule. It is included to aid employers and home, the case is not considered a days- produced by the BLS? recordkeepers in recording these cases. away-from-work case unless the OSHA has therefore decided that it is employee does not work on at least one 1904.7(b)(2) Death not appropriate to add a column to the subsequent day because of the injury or Log to capture data on recurring injuries Paragraph 1904.7(b)(2) requires the illness. The employer is to begin and illnesses. However, OSHA employer to record an injury or illness counting days away on the day recognizes that data on injury and that results in death by entering a check following the injury or onset of illness. illness recurrence may be useful to mark on the OSHA 300 Log in the space This policy is a continuation of OSHA’s employers and employees at individual for fatal cases. This paragraph also practice under the former rule, which worksites and encourages employers directs employers to report work-related also excluded the day of injury or onset who wish to collect this additional fatalities to OSHA within 8 hours and of illness from the day counts. information to do so; however, the final cross references the fatality and Paragraphs 1904.7(b)(3)(ii) and (iii) rule does not require employers to catastrophe reporting requirements in direct employers how to record days- provide recurrence data on the Log. § 1904.39 of the final rule, Reporting away cases when a physician or other fatalities and multiple hospitalizations licensed health care professional (HCP) Section 1904.7 General Recording to OSHA. recommends that the injured or ill Criteria Paragraph 1904.7(b)(2) implements worker stay at home or that he or she Section 1904.7 contains the general the OSH Act’s requirements to record all return to work but the employee recording criteria for recording work- cases resulting in work-related deaths. chooses not to do so. As these related injuries and illnesses. This There were no comments opposing the paragraphs make clear, OSHA requires section describes the recording of cases recording of cases resulting in death. employers to follow the physician’s or that meet one or more of the following However, there were several comments HCP’s recommendation when recording six criteria: death, days away from work, questioning the determination of work- the case. Further, whether the employee restricted work or transfer to another relatedness for certain fatality cases and works or not is in the control of the
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employer, not the employee. That is, if not at work. In other words, the update the Log entry later when the an HCP recommends that the employee employer is not required to count as actual number of days is known or the remain away from work for one or more days away any of the days on which the case reaches the 180-day cap allowed in days, the employer is required to record employee would have been able to work § 1904.7(b)(3)(v). the injury or illness as a case involving but did not because the facility was Comments on the Recording of Days days away from work and to keep track closed, the employee was not scheduled Away From Work of the days; the employee’s wishes in to work, or for other reasons unrelated this case are not relevant, since it is the to the injury or illness. However, if the OSHA received a large number of employer who controls the conditions of employer determines that the comments on how days away should be work. Similarly, if the HCP tells the employee’s injury or illness would have counted. The issues addressed by employee that he or she can return to kept the employee from being able to commenters included (1) whether to work, the employer is required by the work for part or all of time the employee count scheduled workdays or calendar rule to stop counting the days away was away, those days must be counted days, (2) whether the day counts should from work, even if the employee toward the days away total. be ‘‘capped,’’ and, if so, at what level, chooses not to return to work. These Paragraph 1904.7(b)(3)(vi) allows the (3) how to count days away or restricted policies are a continuation of OSHA’s employer to stop counting the days when employees are terminated or previous policy of requiring employees away from work when the injury or become permanently disabled, and (4) to follow the recommendations of health illness has resulted in 180 calendar days how to handle cases that continue to care professionals when recording cases away from work. When the injury or have days away/restricted from one year in the OSHA system. OSHA is aware illness results in an absence of more to the next. that there may be situations where the than 180 days, the employer may enter Scheduled or calendar work days. employer obtains an opinion from a 180 (or 180+) on the Log. This is a new OSHA proposed to count scheduled physician or other health care provision of the final rule; it is included workdays, consistent with its long- professional and a subsequent HCP’s because OSHA believes that the ‘‘180’’ standing policy of excluding normal opinion differs from the first. (The notation indicates a case of exceptional days off such as weekends, holidays, subsequent opinion could be that of an severity and that counting days away days the facility is closed, and HCP retained by the employer or the beyond that point would provide little prescheduled vacation days (61 FR employee.) In this case, the employer is if any additional information. 4033). The proposal asked the public for the ultimate recordkeeping decision- Paragraph 1904.7(b)(3)(vii) specifies input on which counting method— maker and must resolve the differences that employers whose employees are calendar days or scheduled work days— in opinion; he or she may turn to a third away from work because of a work- would be better, stating that ‘‘OSHA is HCP for this purpose, or may make the related injury or illness and who then considering a modification to the recordability decision himself or herself. decide to leave the company’s employ concept of days away from work to Paragraph 1904.7(b)(3)(iv) specifies or to retire must determine whether the include days the employee would how the employer is to account for employee is leaving or retiring because normally not have worked (e.g. weekends, holidays, and other days of the injury or illness and record the weekends, holidays, etc.). OSHA during which the employee was unable case accordingly. If the employee’s believes this change to calendar days to work because of a work-related injury decision to leave or retire is a result of would greatly simplify the method of or illness during a period in which the the injury or illness, this paragraph counting days away by eliminating the employee was not scheduled to work. requires the employer to estimate and need to keep track of, and subtract out, The rule requires the employer to count record the number of calendar days scheduled days off from the total time the number of calendar days the away or on restricted work/job transfer between the employee’s first day away employee was unable to work because the worker would have experienced if and the time the employee was able to of the work-related injury or illness, he or she had remained on the return to full duty’’ (61 FR 4033). The regardless of whether or not the employer’s payroll. This provision also proposal also discussed the potential employee would have been scheduled states that, if the employee’s decision benefits and pitfalls of counting to work on those calendar days. This was unrelated to the injury or illness, calendar days: provision will ensure that a measure of the employer is not required to continue to count and record days away or on Another potential benefit of changing to the length of disability is available, calendar days would be that the day count regardless of the employee’s work restricted work/job transfer. would more accurately reflect the severity of schedule. This requirement is a change Paragraph 1904.(b)(3)(viii) directs the injury or illness. The day count would from the former policy, which focused employers how to handle a case that capture all the days the employee would not on scheduled workdays missed due to carries over from one year to the next. have been able to work at full capacity injury or illness and excluded from the Some cases occur in one calendar year regardless of work schedules. For example, if days away count any normal days off, and then result in days away from work an employee, who normally does not work holidays, and other days the employee in the next year. For example, a worker weekends, is injured on a Friday and is may be injured on December 20th and unable to work until the following Tuesday, would not have worked. the ‘‘days away from work’’ would be three Paragraph 1904.7(b)(3)(v) tells the be away from work until January 10th. (3), using calendar days, rather than one (1) employer how to count days away for a The final rule directs the employer only day, using work days. If the same injury case where the employee is injured or to record this type of case once, in the occurred on a Monday, the day count would becomes ill on the last day of work year that it occurred. If the employee is be three (3) using either calendar or before some scheduled time off, such as still away from work when the annual workdays. Changing the day count to on the Friday before the weekend or the summary is prepared (before February calendar days would eliminate discrepancies day before a scheduled vacation, and 1), the employer must either count the based upon work schedules. Thus, the day returns to work on the next day that he number of days the employee was away counts would be easier to calculate and potentially more meaningful. or she was scheduled to work. In this or estimate the total days away that are One of the potential problems with this situation, the employer must decide if expected to occur, use this estimate to change would be that economic information the worker would have been able to calculate the total days away during the on lost work time as a measure of the impact work on the days when he or she was year for the annual summary, and then of job related injuries and illnesses on work
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life would no longer be available. Employers the purpose of artificially increasing Northrop Grumman Corporation (Ex. could, however, estimate work time lost by incidence and severity rates which would 15: 42) asserted that: ‘‘[c]ounting applying a work day/calendar day factor to falsely designate a given worksite as unsafe calendar days for days away from work the recorded day counts. OSHA solicits or delineate it as a high hazard workplace. would have an adverse impact on those comment on the idea of counting calendar This false delineation of high hazardousness days rather than work days, in particular, would also result in the workplace being companies, such as aerospace what potential do these methods have for unfairly targeted by OSHA for enforcement companies, which routinely have shut overstating (i.e. counting calendar days) or activities. In addition, this change would downs for one or more weeks at a time. understating (i.e. counting work days) the make it difficult, if not impossible, for Employees injured on the day prior to severity of injuries and illnesses? (61 FR employers to compare previous lost work day shut down would have to be recorded 4034) incidence rates with current rates. Such trend as being injured, off work, for the entire OSHA received a large number of data is invaluable to employers in tracking time of the shut down.’’ The Texas progress made in eliminating workplace Chemical Council (Ex. 15: 159) comments on the calendar day/ injuries and illnesses. scheduled day issue. Many commenters expressed concern about the impact the suggested that OSHA track days away Other commenters, however, argued change to calendar days might have on from work using its former method of that calendar days would be a better day counts involving alternative counting scheduled workdays (see, e.g., statistical measure (see, e.g., Exs. 15: 71, schedules: Exs. 21; 30; 37; 15: 10, 16, 30, 42, 44, 75, 347, 425, 434, 438). For example, the We believe the value of the reduced burden 48, 61, 66, 69, 78, 79, 89, 100, 107, 108, American Waterways Shipyard is not worth the skewed data that may result. 119, 121, 122, 127, 130, 133, 146, 151, Conference (Ex. 15: 75) stated: OSHA’s proposal may yield accurate data 152, 154, 159, 163, 170, 172, 179, 180, and better reflect severity when applied to AWSC would also urge that ‘‘days away work schedules following an 8 hour day, 200, 203, 204, 213, 214, 219, 226, 246, from work’’ be counted by calendar days 260, 262, 265, 281, 287, 297, 299, 300, Monday through Friday. However, many rather than work days. This would ease the industries utilize a 12 hour shift that 304, 305, 307, 308, 341, 346, 356, 363, burden on establishments in their provides periods of time off longer than the 364, 368, 373, 378, 384, 385, 387, 389, recordkeeping and would also make the data normal two day weekends. The proposed 390, 397, 401, 404, 410, 413, 414, 424, more useful. For example, an employee method of counting days could, for example, 426, 427, 431, 440, 443). Many injured on Friday who does not return to turn an injury requiring two days commenters also suggested that OSHA work until Tuesday is currently counted as recuperation time into a case requiring four one-day off the job. If ‘‘days away from work’’ use calendar days instead of scheduled or more days to be counted. This would skew are calculated by calendar days, then this severity analysis utilizing days off data. workdays to track days away from work same injury would be counted as three days. (see, e.g., Exs. 19; 44; 15: 26, 27, 31, 34, The three day injury ruling is a more accurate However, the Eli Lilly Company (Ex. 44, 71, 75, 82, 105, 111, 119, 127, 136, indicator of the seriousness of the injury. 15: 434) argued that calendar days 137, 138, 141, 153, 181, 182, 188, 198, would help equalize day counts: ‘‘[a] 205, 218, 224, 233, 242, 263, 266, 269, The United Auto Workers (UAW) calendar day count would ensure 270, 271, 278, 310, 316, 326, 337, 345, argued that: ‘‘Calendar days are a much employer consistency and comparability 347, 350, 359, 369, 377, 391, 396, 405, better measure of severity or disability even when employers have unique and 407, 409, 415, 418, 423, 425, 428, 429, than actual days which are adjusted for variable shift works.’’ 434, 438). The arguments of each group work schedule, vacations, layoffs and Other commenters argued that fall loosely into two categories: which other extraneous disruptions. Frankly, scheduled workdays are a better counting method provides the most counting actual days is a waste of effort, measurement because they measure meaningful data and which method is subject to manipulation and serves no economic impact and lost productivity least burdensome. public health purpose. It is relic and (see, e.g., Exs. 15: 154, 172, 203, 204, Arguing against counting calendar should be eliminated. The only reason 226, 262, 304, 341, 356, 364, 367, 397). days, a number of commenters stated some employers might wish to retain The Fertilizer Institute (Ex. 15: 154) that calendar days would overstate lost this measure is because they can argued that: ‘‘Although such a change workdays and artificially inflate or generate a lower number’’ (Ex. 15: 438). might simplify the counting of days, it distort severity rates (see, e.g., Exs. 15: Other commenters were concerned will make comparisons difficult for 10, 16, 42, 44, 69, 108, 119, 127, 130, that the change to counting calendar companies, trade and professional 133, 146, 159, 163, 170, 195, 203, 213, days would have an unfair effect on associations, and government agencies 219, 281, 287, 297, 300, 304, 305, 307, firms that rely more heavily on part- that are trying to measure the severity of 341, 356, 364, 373, 385, 389, 390, 397, time workers, use alternative schedules, injuries and illnesses in terms of 404, 410, 414, 424, 426, 431, 440, 443). and/or use planned plant shutdowns productivity. In addition to the health Some commenters also argued that the (see, e.g., Exs. 15: 42, 96, 121, 159, 163, and safety of its employees, industry is information would be ‘‘false and 213, 219, 200, 262, 281, 299). For primarily concerned with the cost of misleading’’ (see, e.g., Exs. 15: 287, 443), example, Dayton Hudson Corporation work-related injuries and illnesses, as ‘‘would not indicate true severity’’ (Ex. (Ex. 15: 121) stated that: they relate to lost productivity. Thus, 15: 108), or would make it difficult to DHC questions the concept of counting the basis of the lost work day, not the compare data from the old rule with calendar days versus the proposed scheduled lost calendar day, is the most data kept under the new rules (see, e.g., work days in documenting days away from appropriate measurement to use.’’ The Exs. 37; 15: 44, 61, 130, 146, 226, 281, work. Both methods have their value and Society of the Plastics Industry, Inc. (Ex. 297, 299, 300, 304, 341, 378, 384, 385, also potential problems. The calendar 15: 364) urged OSHA to retain the 397, 404, 426, 440). Typical of these method would make it much easier for a scheduled days system because of its views was the one expressed by the company to record the severity of an usefulness in measuring the economic American Trucking Associations (Ex. accident. However, this method would have impact of job-related accidents and the a significant effect on an industry such as 15: 397), which stated that: retailing, since the majority of our work force incentive such information provides for This provision serves no useful purpose. is part-time. If OSHA decides to go with the prevention efforts. Its proponents exaggerate the difficulty in calendar method, there needs to be clearly In addition to arguments about the computing days away from work under the defined examples referenced in the standard preferred way of counting days away, current regulation. Instead, it will only serve dealing with part-time workers. commenters discussed the issues of
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simplification and the burden of Electronic Circuits (IPC) said that: United Parcel Service (UPS) was counting days away from work with ‘‘According to IPC member companies, concerned about the accuracy of both methods. A number of commenters the potential simplification gains that employee reporting of injuries and supported using calendar days because may be achieved by this proposal would illnesses under the calendar day system: doing so would simplify the process and not outweigh the gross overreporting [t]he cessation of the effects of an reduce burden (see, e.g., Exs. 15: 71, 75, and, therefore, inaccurate data that employee’s injury or illness cannot reliably 82, 136, 137, 141, 224, 242, 263, 266, would result’’ (Ex. 15: 69). be determined in the case of a worker who 269, 270, 278, 347, 377, 415, 418, 423, Other commenters arguing against ‘‘heals’’ on the weekend. Thus, the number 434). Two commenters made the point of days away from work and their impact on calendar days stated that counting the perception of serious incidents will be that using calendar days would make it scheduled workdays is not difficult or easier to use computer software to substantially inflated. Indeed, it has been onerous (see, e.g., Exs. 15: 107, 146, UPS’s experience that a disproportionate calculate days away from work (Exs. 15: 387), that counting calendar days would number of injuries are reported on Friday 347, 423). Representative of the not simplify the counting of lost and Monday; inclusion of claimed weekend comments supporting the use of workdays (see, e.g., Exs. 15: 16, 119, injury, therefore, would greatly inflate OSHA calendar days to reduce the recording 146, 281, 299, 304, 308, 341, 364, 367, statistics with factors that honest observers burden was the view of the Ford Motor 424), that counting calendar days would know to be linked, to some degree, with the Company (Ex. 15: 347): universal attraction of an extended weekend. add to the administrative burden (see, The risk, moreover, is not merely inflated The single most significant change that e.g., Exs. 15: 42, 146, 304, 308, 341, 364, numbers, but inflation of the apparent could be made to simplify and reduce the 367, 431), that counting calendar days severity of those conditions that are difficult burden of the current recordkeeping system would add confusion (see, e.g., Exs. 15: to verify and that are therefore the most would be a change to a calendar count for 204, 431), or that employers already likely resort of employees who would days away from work. This would eliminate report scheduled workdays to workers’ misreport a condition for time off (Ex. 15: the need to keep track of and subtract out any 424). scheduled days off from the time of the compensation and thus this information employee’s first day away until the time the is already available (see, e.g., Exs. 15: Another issue noted by commenters employee was able to return to work. Of 367, 384). Commenters also cited the was the difficulty of getting medical additional importance, a calendar count need to change computer software attention over the weekend. For approach would provide a more accurate systems if a shift to calendar days was example, the American Ambulance reflection of the severity of injuries and made (Ex. 15: 122) and argued that Association (Ex. 15: 226) cautioned that illnesses. retaining scheduled workdays would ‘‘The common practice of a health care Currently, tracking days away from work is require less training than moving to provider is to defer an employee’s a particular problem in that many return to work until after a weekend or individuals no longer work a traditional eight calendar days (see, e.g., Exs. 15: 37, 122, hours a day, Monday through Friday. Some 133, 304, 384). The BF Goodrich holiday, due to limited staff resources individuals work four days a week, ten hours Company (Ex. 15: 146) summed up for evaluating employee status on those a day, others work every Saturday and/or these views: days,’’ and the Sandoz Corporation (Ex. Sunday, and some individuals have their BF Goodrich’s business systems are set up 15: 299) noted that ‘‘This change [to scheduled days off during the week. Different to count and track work days and work calendar days] would lead to employees in the same establishment hours. We do not agree with the suggestion overstatement of the severity in cases of commonly have different work schedules. of counting calendar days rather than actual part-time employees due to the Different departments are commonly on work days for Days Away From Work cases. difficulty of getting return-to-work ‘‘down time’’ while the rest of the Counting calendar days would improperly clearance from medical personnel.’’ establishment may be in full operation. A inflate the severity incidence rates which are Two commenters (Exs. 15: 69, 15: calendar count will simplify the calculation calculated based on actual hours worked and 363) objected to counting calendar days of days away from work for alternative work defeat any efforts to perform trend analysis schedules. based on a belief that counting these against previous years. Use of calendar days days would raise their workers’ In comparison to the current system, a would also require unnecessary analysis of calendar count will provide meaningful, work capability for days that would not be compensation insurance rates. For consistent, and useful data, as well as worked anyway. There would be no example, the Institute for provide an accurate reflection of severity. reduction in burden in a calendar day system Interconnecting and Packaging The calendar day count will also enhance the and there would be loss of severity trend Electronic Circuits (IPC) stated that ability to develop software to standardize the analysis capability. ‘‘Lost time is a major factor in insurance recordkeeping process. premiums for facilities. As a result, a In addition, the change to a calendar day A number of commenters pointed to count would enable Ford Motor Company to definition that would over-estimate lost the difficulty of analyzing days away for time would significantly raise facility free up highly trained personnel for more injuries that occur just before scheduled productive and effective pursuits rather than insurance costs’’ (Ex. 15: 69). tracking lost workdays under the current time off, such as before the weekend Patrick R. Tyson, a partner in the law system. The cost of these resources to track (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, firm of Constangy, Brooks & Smith, LLC lost workdays cases exceeds one million 179, 226, 281, 299, 341, 363, 389, 414, (Ex. 55X, pp. 99–100), strongly favored dollars per year. 424). The Institute for Interconnecting moving to a calendar-day-count system, Even some of the commenters who and Packaging Electronic Circuits (IPC) for the following reason: described the following scenario: argued against OSHA’s adoption of a [w]hat we’ve seen in some audits is calendar day approach in the final rule [i]f a worker is injured on Friday, is sent companies that attempt to try to control the acknowledged that counting calendar home, and returns to work on Monday, the number of days that would be counted as lost days would be simpler but emphasized alternative [calendar day] proposal would work days by controlling the number of days that this added simplicity and reduction require employers to count weekend days in that otherwise would be worked.* * * the lost workday count. IPC believes that this in burden would not offset the We * * * encountered one company that alternative proposal would not accurately announced proudly in its newsletter that one deleterious effect of this change on the reflect the severity of the injury since, if the particular employee should be congratulated data (see, e.g., Exs. 15: 44, 61, 69, 121, same injury had occurred on a Monday, the because when she had to have surgery for 154, 159, 170, 195). The Institute for worker might have been able to return to carpal tunnel syndrome, clearly work related Interconnecting and Packaging work on Tuesday. (Ex. 15: 69) * * * she chose to have that surgery during
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her vacation so that the company’s million on the length of disability instead of employee would have been able to work man hours of work without a lost time being dependent on the individual on any or all of those days, and must accident would not be interrupted. That employee’s work schedule. This policy count the days and enter them on the doesn’t make any sense where we encourage will thus create more complete and Log based on that determination. In this those kinds of things * * * We ought to consider a calendar count if only to address consistent data and help to realize one situation, the employer need not count those kinds of situations. I understand that of the major goals of this rulemaking: to days on which the employee would would cause problems with respect to those improve the quality of the injury and have been able to work, but did not, companies who use lost work days as a illness data. because the facility was closed, or the measure of the economic impact of injuries OSHA recognizes that moving to employee was not scheduled to work, or and illnesses in the workplace, but I suspect calendar day counts will have two for other reasons unrelated to the injury that a better measure of that would be effects on the data. First, it will be or illness. worker’s compensation. If it’s a lost work difficult to compare injury and illness Accordingly, the final rule adopts the day, you’re going to pay comp on it. * * * data gathered under the former rule counting of calendar days because this OSHA agrees with some of the points with data collected under the new rule. approach provides a more accurate and made by those in favor of, and those This is true for day counts as well as the consistent measure of disability opposed to, changing over to calendar overall number and rate of occupational duration resulting from occupational day counts. After a thorough review of injuries and illnesses. Second, it will be injury and illness and thus will generate the arguments for each alternative, more difficult for employers to estimate more reliable data. This method will however, OSHA has decided to require the economic impacts of lost time. also be easier and less burdensome for employers to count calendar days, both Calendar day counts will have to be employers who keep OSHA records and for the totals for days away from work adjusted to accommodate for days away make it easier to use computer programs and the count of restricted workdays. from work that the employee would not to keep track of the data. OSHA does not agree with those have worked even if he or she was not Capping the Count of Lost Workdays commenters who argued that the injured or ill. This does not mean that counting of calendar days away from calendar day counts are not appropriate OSHA proposed to limit, or cap, the work would be a significant burden. The in these situations, but it does mean that total number of days away from work Agency finds that counting calendar their use is more complicated in such the employer would be required to days is administratively simpler than cases. Those employers who wish to record. This would have been a counting scheduled days away and thus continue to collect additional data, departure from OSHA’s former guidance will provide employers who keep including scheduled workdays lost, may for counting both days away from work records some relief from the continue to do so. However, employers and restricted workdays. The former complexities of counting days away must count and record calendar days for rule required the employer to maintain from work (and days of restricted work) the OSHA injury and illness Log. a count of lost workdays until the under the old system. For the relatively Thus, on balance, OSHA believes that worker returned to work, was simple injury or illness cases (which any problems introduced by moving to permanently reassigned to new duties, make up the great majority of recorded a calendar-day system will be more than had permanent work restrictions, or was cases) that involve a one-time absence offset by the improvements in the data terminated (or retired) for reasons from work of several days, the calendar- from one case to the next and from one unrelated to the workplace injury or day approach makes it much easier to employer to another, and by the illness (Ex. 2, pp. 47–50). compare the injury/illness date with the resulting improvements in year-to-year OSHA’s proposed regulatory text return-to-work date and compute the analysis made possible by this change in stated that ‘‘[f]or extended cases that difference. This process is easier than the future, i.e., by the improved result in 180 or more days away from determining each employee’s normal consistency and quality of the data. work, an entry of ‘‘180’’ or ‘‘180+’’ in schedule and adjusting for normal days The more difficult problem raised by the days away from work column shall away, scheduled vacations, and days the the shift to calendar days occurs in the be considered an accurate count’’ (61 FR facility was not open. The calendar case of the injury or illness that results 4058). In the preamble to the proposal, method also facilitates computerized on the day just before a weekend or OSHA explained that day counts of day counts. OSHA recognizes that, for some other prescheduled time off. more than 180 days would add those injuries and illnesses that require Where the worker continues to be off negligible information for the purpose of two or more absences, with periods of work for the entire time because of the injury and illness case analysis but work between, the advantages of the injury or illness, these days are clearly would involve burden when updating calendar day system are not as appropriately included in the day count. the OSHA records. The proposed significant; OSHA notes, however, that As previously discussed, if a physician preamble also asked several questions: injuries and illnesses following this or other licensed health care ‘‘Should the days away from work be pattern are not common. professional issues a medical release at capped? Is 180 days too short or long of Changing to a calendar day counting some point when the employee is off a period? If so, should the count be system will also make it easier to count work, the employer may stop counting capped at 60 days? 90 days? 365 days? days away or restricted for part-time days at that point in the prescheduled or some other time period?’’ (61 FR workers, because the difficulties of absence. Similarly, if the HCP tells the 4033) counting scheduled time off for part- injured or ill worker not to work over A large number of commenters time workers will be eliminated. This the scheduled time off, the injury was supported a cap on day counts (see, e.g., will, in turn, mean that the data for part- severe enough to require days away and Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, time workers will be comparable to that these must all be counted. In the event 85, 89, 95, 105, 108, 111, 119, 120, 121, for full-time workers, i.e., days away that the worker was injured or became 127, 132, 133, 136, 137, 141, 146, 153, will be comparable for both kinds of ill on the last day before the weekend 159, 170, 173, 176, 180, 182, 185, 188, workers, because scheduled time will or other scheduled time off and returns 194, 195, 198, 199, 203, 205, 213, 224, not bias the counting method. Calendar on the scheduled return date, the 231, 233, 239, 242, 260, 262, 263, 265, day counts will also be a better measure employer must make a reasonable effort 266, 269, 270, 271, 273, 278, 283, 287, of severity, because they will be based to determine whether or not the 288, 289, 297, 298, 301, 304, 307, 310,
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316, 317, 321, 332, 334, 335, 336, 341, Support for capping the count of days International Brotherhood of Teamsters 345, 346, 347, 348, 351, 368, 373, 374, away from work was not unanimous, maintains that the recording of restricted 375, 377, 378, 384, 385, 387, 389, 390, and several commenters opposed a day work activity day counts and counting of count cap (see, e.g., Exs. 15: 31, 62, 197, days away from work enables OSHA to 392, 397, 401, 404, 405, 434, 437, 440, compile accurate data on serious and 442). The most common argument was 204, 225, 277, 294, 302, 350, 359, 369, significant injuries. (Ex. 15: 369) that capping the counts would reduce 379). The National Safety Council stated the burden on employers (see, e.g., Exs. that ‘‘[n]o cap on counting lost After a review of the evidence 21; 33; 15: 82, 95, 111, 146, 154, 159, workdays is necessary provided that the submitted to the record, OSHA has 170, 176, 182, 188, 213, 231, 260, 262, count automatically ends with decided to include in the final rule a 265, 273, 288, 289, 297, 301, 304, 305, termination, retirement, or entry into provision that allows the employer to 310, 341, 345, 346, 373, 389, 390, 401, long-term disability. Only a small stop counting days away from work or 442) and simplify the OSHA proportion of cases have extended lost restricted workdays when the case has recordkeeping system (see, e.g., Exs. 21; workday counts so there is little reached 180 days. OSHA’s primary 15: 188, 297, 373). Several commenters additional recordkeeping burden. The reason for this decision is that very few cases involve more than 180 days away argued that such a change would additional information gained about or days of restricted work, and that a produce a ‘‘significant’’ reduction in long-term lost workday cases is cap of 180 days clearly indicates that burden and cost (see, e.g., Exs. 15: 154, important and keeps employers aware of such a case is very severe. Continuing 159, 203, 297). The Miller Brewing such cases’’ (Ex. 15: 359). Other to count days past the 180-day cap thus Company comment (Ex. 15: 442) was commenters stressed that it was adds little additional information representative: ‘‘We endorse this cap on important to obtain an accurate beyond that already indicated by the the days away from work (DAFW) accounting of days away to assess the 180-day cap. calculation. Once a case reaches 180 severity of the case (see, e.g., Exs. 15: days, it is clearly recognized as a serious 294, 379, 429, 440), that the counts were Selection of the Day Count Cap needed to make these cases visible (see, case. The requirement to calculate days A large number of commenters e.g., Exs. 15: 294, 440), and that the away from work beyond 180 is a time specifically supported the 180 day cap counts demonstrate the impact of long consuming administrative exercise proposed by OSHA (see, e.g., Exs. 51; term absences (Ex. 15: 62). For example, which provides no value-added 15: 26, 27, 67, 70, 89, 111, 121, 127, 136, the Boeing Company (Ex. 15: 294) information relative to the severity of a 137, 141, 153, 154, 159, 170, 176, 184, argued that given case. Again, we support this rule 224, 233, 242, 260, 262, 263, 265, 266, change and OSHA’s attempt to simplify If the count is suspended after 180 days (or 269, 270, 278, 283, 288, 298, 316, 335, the recordkeeping process.’’ any other arbitrary number), an employer 341, 368, 377, 385, 401, 404, 423, 430, Commenters also pointed out that will lose valuable information regarding the 437, 442). The Chemical Manufacturers limiting the day counts would make it true amount of lost work days and their associated costs. The experience of The Association (CMA) stated that ‘‘CMA easier to count days for cases that span Boeing Company indicates that there are a supports the use of a cap on the number two calendar years (see, e.g., Exs. 15: small number of cases that have many more of days away from work that must be 153, 194, 195, 289). Other commenters than 180 days. The result is a counted. Once an employee misses stated that it was difficult to modify the disproportionate amount of total costs. Not more than 180 days from work * * * former year’s records (Ex. 15: 153) and having visibility of these cases would be a due a workplace injury or illness, the that the day count cap would ease the mistake. relative seriousness of the incident is burden of tracking cases that span two The United Steelworkers of America determined and little benefit is derived calendar years (Ex. 15: 289). (USWA) offered several reasons for not from continuing to count the number of Several commenters stated that the adopting a day count cap: ‘‘The USWA days for OSHA’s recordkeeping benefits of recording extended day also strongly opposes capping lost work system.’’ The Fertilizer Institute (Ex. 15: counts were insignificant (see, e.g., Exs. day cases at 180. We believe that no cap 154) supported 180 days because it ‘‘is 15: 111, 159, 176, 184, 260, 262, 265, is necessary or desirable. Only a very consistent with most corporate long- 288, 297, 373, 401, 430, 434, 442), that small proportion of cases have extended term disability plans.’’ they added negligible information for lost workdays recorded so there is little Many commenters who supported a case analysis or safety and health additional recordkeeping burden. The cap on counting days away program evaluation (Ex. 15: 434), and additional information gained about recommended that OSHA adopt a that there was no ‘‘value added long-term lost workday cases is number of days other than 180 (see, e.g., information’’ from high day counts (see, important in evaluating the severity of Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, e.g., Exs. 15: 260, 262, 265, 401, 442). the injury and it keeps attention on such 108, 119, 122, 132, 180, 182, 185, 188, Others stated that capping the day cases’’ (Ex. 15: 429). 194, 195, 198, 199, 203, 213, 239, 246, counts would provide ‘‘adequate data’’ The International Brotherhood of 271, 272, 287, 289, 297, 303, 304, 305, (see, e.g., Exs. 15: 111, 159, 304, 345) Teamsters (IBT) opposed the capping of 307, 308, 317, 336, 347, 348, 351, 375, and that there would be no loss of day counts on the basis that the OSH 378, 384, 385, 404, 405, 407, 409, 410, significant data for analysis (see, e.g., Act requires ‘‘accurate’’ records, stating 414, 425, 431, 434). The most common Exs. 15: 170, 184, 297, 341, 373). The that: argument against capping at 180 days McDonnell Douglas Corporation (Ex. 15: The IBT opposes the elimination of was that a few very serious cases would 297) argued that a cap ‘‘[w]ould allow counting the days of restricted work activity skew the statistical data (see, e.g., Exs. industry to avoid the significant and and opposes capping the count of ‘‘days 15: 75, 180, 246, 271, 385, 409). costly paperwork burdens associated away from work’’ at 180 days. The IBT uses Hoffman-La Roche, Inc. argued for 90 with tracking lost workdays, without the restricted work activity day count to days on the grounds that ‘‘90 days is any appreciable reduction in OSHA’s gauge the severity of an injury or illness. We more than sufficient to get a read on the are supported by the OSH Act, section 24(a) ability to identify significant workplace ‘‘the Secretary shall compile accurate severity of the injury/illness. This injuries and illnesses or to assure statistics on work injuries and illnesses would enable employers to obtain continuing improvement in workplace which shall include all disabling, serious, or meaningful data that is not skewed by safety and health.’’ significant injuries or illnesses. * * *. The one or two cases’’ (Ex. 15: 271).
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Commenters suggested a number of hygienist, median = 71). There was also a employer to stop counting the days alternatives, including 30 days (see, e.g., very small number of injury/illness away from work when the worker was Ex. 15: 414); 60 days (see, e.g., Exs. 15: characteristics with medians between 60 and terminated for reasons unrelated to an 60, 108, 119, 194, 203, 246, 287, 405); 90 days or with medians exceeding 90 days. injury or illness (61 FR 4058). This Eleven of the 13 instances in which the provision would have continued 60 or 90 (Ex. 15: 407); 90 days (see, e.g., median exceeded 60 days away from work Exs. 21; 15: 75, 85, 105, 132, 182, 185, were based on distributions involving a small OSHA’s former policy on this matter, 239, 271, 272, 289, 297, 303, 317, 336, number of estimated cases i.e., only 100 to which allowed the employer to stop 347, 378, 409, 410, 425, 431); 50 to 100 400 nationally. Capping the count of days counting days away or restricted days (see, e.g., Exs. 37; 15: 384); 90 to away from work at either 60 or 90 days workdays when the employee’s 120 days (Ex. 15: 71); 90 or 180 days would still allow the reporting of the employment was terminated by (Ex. 15: 434); 120 days (Ex. 15: 198); the proportion of cases involving days away from retirement, plant closings, or like events equivalent of six months (see, e.g., Exs. work in the ‘‘31 days or more category’’ that unrelated to the employee’s work- 15: 82, 188, 199, 213, 304, 307, 308, 351, is currently being reported by the BLS. A related injury or illness (Ex. 2, pp. 49, minor limitation of capping the count of days 375); one year (Ex. 15: 122); and 60 days 50). The final rule, at paragraph away from work at 60 or 90 days is that for 1904.7(b)(3)(vii), permits employers to after the beginning of the new year (see, a very small number of characteristics, the e.g., Ex. 15: 195). median would have to be reported as stop counting days away if an injured or The most common alternative exceeding the cap. ill employee leaves employment with recommended by commenters was 90 the company for a reason unrelated to Two commenters suggested that days (see, e.g., Exs. 21; 15: 75, 85, 105, the injury or illness. Examples of such OSHA use months instead of days as the 132, 182, 185, 239, 271, 272, 289, 297, situations include retirement, closing of measurement (Exs. 15: 304, 404), and a 303, 317, 336, 347, 378, 409, 410, 425, the business, or the employee’s decision number of commenters pointed out that 431). These commenters argued that 90 to move to a new job. OSHA’s proposed 180 days should be days would reduce the burden without Paragraph 1904.7(b)(3)(vii) also 125 if based on 6 months of actual a loss of information (see, e.g., Exs. 15: requires employers whose employees workdays instead of calendar days (see, 75, 85, 239, 297, 425), that 90 days is have left the company because of the e.g., Exs. 15: 199, 213, 307, 308, 348). sufficient to determine severity (see, injury or illness to make an estimate of After careful consideration, OSHA has e.g., Exs. 15: 85, 105, 271 272, 289, 303, the total days that the injured or ill decided to cap the day counts at 180 410), that 90 days matches existing labor employee would have taken off work to days and to express the count as days agreements (see, e.g., Exs. 15: 378), and recuperate. The provisions in paragraph rather than months. The calendar month that 90 days limits the problems caused 1904.7(b)(3)(vii) also apply to the is simply too large and unwieldy a unit by a case that extends over 2 years (see, counting of restricted or transferred of measurement for this purpose. The e.g., Exs. 15: 407, 431). days, to ensure that days are counted calendar-day method is the simplest consistently and to provide the simplest NIOSH (Ex. 15: 407) commented that: method and will thus produce the most counting method that will collect NIOSH agrees with OSHA that ‘‘day counts consistent data. accurate data. OSHA’s reasoning is that greater than 180 days add negligible OSHA has decided to cap the counts information while entailing significant day counts continue to be relevant burden on employers when updating OSHA at 180 days to eliminate any effect such indicators of severity in cases where the records.’’ Therefore, NIOSH agrees with the capping might have on the median days employee was forced to leave work concept of capping the count of days away away from work data reported by BLS. because of the injury or illness. from work at a maximum of 180 days, and This cap will continue to highlight cases recommends that OSHA also consider caps of with long periods of disability, and will Handling Cases That Cross Over From 60 or 90 days away from work. also reduce the burden on employers of One Year to the Next Currently, the Annual Survey of counting days in excess of 180. Using a A special recording problem is Occupational Injuries and Illnesses reports shorter threshold, such as 90 or even created by injury and illness cases that distributional data for the number of days 120 days, could impact the injury and begin in one year but result in days away from work and the median number of days away from work for demographic (age, illness statistics published by the BLS, away from work or days of restricted sex, race, industry, and occupation) and and could thus undermine the primary work in the next year. Under the former injury/illness (nature, part of body, source, purpose of this regulation: to improve rule, the employer was to record the and event) characteristics. The largest the quality and utility of the injury and case once, in the year it occurred, and category of days away from work reported by illness data. Using a shorter time frame assign all days away and restricted days the BLS for days away from work is ‘‘31 days would also make it harder to readily to that case in that year (Ex. 2, p. 48). or more.’’ In 1992, the Annual Survey identify injuries and illnesses involving Under the rule being published today, reported median days away from work that very long term absences. The rule also this policy still applies. If the case ranged from 1 day to 236 days [U.S. does not require the employer to use the extends beyond the time when the Department of Labor 1995]. For most demographic and injury/illness categories, designation of 180+ or otherwise require employer summarizes the records capping the count of days away from work cases extending beyond 180 days to be following the end of the year as required at 180 days will not alter the values for either marked with an asterisk or any other by § 1904.32, the employer is required the percent of injuries in the ‘‘31 days or symbol, as suggested by various by paragraph 1904.7(b)(3)(viii) to update more’’ category or median days away from commenters (see, e.g., Exs. 15: 31, 62, the records when the final day count is work. 153, 289, 374, 407, 425). Employers who known. In other words, the case is OSHA may wish to consider capping the wish to attach such designations are free entered only in the year in which it count of days away from work at either the to do so, but OSHA does not believe occurs, but the original Log entry must 60 or the 90 day level. Employers could be such designations are needed. subsequently be updated if the day instructed to enter a value of 61+(or 91+) to count extends into the following year. indicate that the recorded injury or illness Counting Lost Workdays When condition existed beyond the cap on the In addition to the NIOSH (Ex. 15: 407) Employees Are No Longer Employed by comments on the day counts count of days away from were based on the the Company 1992 Annual Survey data, no reported summarized above, the Society for industry and only one reported occupation The proposed rule contained a Human Resource Management (Ex. 15: had a median of greater than 60 days (dental provision that would have allowed the 431) urged OSHA to adopt a lower day
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count cap to limit the ‘‘crossover’’ activity days for an injury event or type was identified restricted work activity and problem. Two commenters urged OSHA used as a measure of severity. In quite a few job transfer as indicators of injury and to take a new approach to cases that individual injury cases, the number of days illness severity. away from work entry was not available In the years since OSHA has been extend over two or more years. Both the because of the severity of the injury or Laborers’ Health & Safety Fund of North because the injury resulted in a fatality. For enforcing the recordkeeping rule, America (Ex. 15: 310) and the Service recordkeeping purposes, we would suggest a however, there has been considerable Employees International Union (Ex. 15: maximum cap of 180 days for a non-fatal misunderstanding of the meaning of the 379) recommended that these cases be serious injury of long duration, and an term ‘‘restricted work,’’ and, as a result, recorded in each year, with the days for automatic entry of 365 for fatalities. Using the recording of these cases has often each year assigned to the appropriate this method, the most severe cases would be been inconsistent. The Keystone Report case. The Laborers’ Health & Safety weighted appropriately, with fatalities (Ex. 5), which summarized the carrying the heaviest weight. Also, entering recommendations of OSHA stakeholders Fund of North America (Ex. 15: 310) a lost workday number for fatalities would stated: enable fatalities to count in a single and on ways to improve the OSHA recordkeeping system, noted that One concern with a large number of days simple ‘‘severity-weighted Lost Work Day away from work is how to record the lost Injury and Fatality (LWDIF) rate’’. restricted work was perhaps the least understood of the elements of the days which begin in one calendar year and OSHA has not adopted the Laborers’ end in a following calendar year. We suggest system. Health & Safety Fund of North America This section of the Summary and that it is best to record the number of days recommendation. OSHA believes that lost from the date of the injury to the end of Explanation first discusses the former the calendar year, and to enter the injury fatalities must be considered separately recordkeeping system’s interpretation of again on the following year’s OSHA 300 with from non-fatal cases, however severe the the term restricted work, describes how the remaining days of lost time up to the 180 latter may be. When an employee dies the proposed rule attempted to revise day maximum. A box should be available to due to a work-related injury or illness, that interpretation, and then indicate that the entry is a continuation from the outcome is so severe and so summarizes and responds to the the prior year. important that it must be treated comments OSHA received on the As stated earlier, OSHA has decided separately. Merging the two types of proposed approach to the recording of on the 180 day cap for both days away cases would diminish the importance of work restriction and job transfer cases. and days of restricted work cases to fatality entries and make the days away Finally, this section explains the final ensure the visibility of work-related data less useful for determining the rule’s restricted work and job transfer injuries and illnesses with long periods severity of days away injury cases. requirements and OSHA’s reasons for of disability. The final rule also requires Accordingly, the final rule being adopting them. the employer to summarize and post the published today does not reflect this records by February 1 of the year recommendation. The Former Rule following the reference year. Therefore, The Westinghouse Corporation (Ex. The former recordkeeping rule did not there will be some cases that have not 15: 405) suggested that OSHA look at include a definition of restricted work been closed when the records are days of hospitalization as a measure of or job transfer; instead, the definition of summarized. Although OSHA expects severity, stating ‘‘[t]he number of days these terms evolved on the basis of that the number of cases extending over hospitalized does provide a more interpretations in the BLS Guidelines two years will be quite small, it does not objective indication of the seriousness (Ex. 2, p. 48). The Guidelines stated that believe that these cases warrant special of injury or illness, if for no other reason restricted work cases were those cases treatment. A policy that would require than cost control by insurance ‘‘where, because of injury or illness, (1) the same case to be recorded in two companies. If OSHA can document a the employee was assigned to another years would result in inaccurate data for legitimate use for an indicator of the job on a temporary basis; or (2) the the following year, unless special ‘‘seriousness’’ of an injury, it may want employee worked at a permanent job instructions were provided. to consider hospital stay time.’’ OSHA less than full time; or (3) the employee Accordingly, the final rule requires the has considered the use of hospitalized worked at his or her permanently employer to update the Log when the days, but has rejected them as a measure assigned job but could not perform all final day count is known (or exceeds of injury or illness severity. Although the duties connected with it.’’ The key 180 days), but to record the injury or these day counts may be a reasonable concepts in this interpretation were that illness case only once. This approach is proxy for severity, they are applicable work was to be considered restricted consistent with OSHA’s longstanding only in a relatively small number of when an employee experienced a work- practice and is thus familiar to cases. related injury or illness and was then employers. Paragraph 1904.7(b)(4) Restricted Work unable, as a result of that injury or or Transfer to Another Job illness, to work as many hours as he or Miscellaneous Day Counting Issues she would have been able to work Another class of work-related injuries Two commenters provided additional before the incident, or was unable to and illnesses that Section 8(c) of the Act comments for OSHA to consider on the perform all the duties formerly identifies as non-minor and thus issue of counting days away from work. connected with that employee’s job. recordable includes any case that results The Laborers’ Health & Safety Fund of ‘‘All duties’’ were interpreted by OSHA in restriction of work or motion2 North America (Ex. 15: 310) or as including any work activity the recommended that OSHA require transfer to another job. Congress clearly employee would have performed over employers to enter a count of 365 days the course of a year on the job. 2 The term restricted motion has been interpreted away from work on the Log for any to mean restricted work motion and to be OSHA’s experience with fatality case: essentially synonymous with restricted work. OSHA recordkeeping under the former system In a recent project we used OSHA 200 data does not distinguish between the two terms. indicated that employers had difficulty OSHA’s former Guidelines (Ex. 2, p. 43) clearly with the restricted work concept. They from road construction and maintenance stated that a restriction of work or motion, such as employers to determine the causes and that resulting from a bandaged finger, that did not questioned the need for keeping a tally relative severities of serious injuries. The also impair work was not recordable, and that is of restricted work cases, disagreed with number of lost workdays plus restricted work also the interpretation of the final rule. the ‘‘less than full time’’ concept, or
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were unsure about the meaning of ‘‘all suggestions, including that OSHA system and make it more ‘‘user friendly.’’ We the duties connected with [the job].’’ (In eliminate restricted work activity cases support deletion of this category of injury OSHA’s experience, employers have not from the recordkeeping system because we think it will make the system generally had difficulty understanding altogether, that the proposed definition more complex and is inconsistent with current practices of returning employees back the concept of temporary job transfer, of restricted work activity be changed, to productive work at the earliest date (Ex. which are treated in the same way as that the proposed approach be rejected, 15: 119). restricted work cases for recordkeeping that it be adopted, and many other purposes. The following discussion thus recommendations. These comments are Revise the Proposed Definition of a focuses on restricted work issues.) The grouped under topic headings and are Restricted Work Case changes OSHA proposed to make to the discussed below. Most of the remaining comments work restriction concept (61 FR 4033) recommended either that the definition were intended to address these Eliminate the Recording of Restricted Work Cases of restricted work in the final rule be employer concerns. revised to include a more inclusive set Several commenters recommended The Proposed Rule of job activities or functions or a less that OSHA completely eliminate the inclusive set. For example, the Small The proposal would have changed recording of restricted work cases Business Administration (Ex. 51) was restricted work recordkeeping practices because, in the opinion of these concerned that: markedly. For example, the proposal commenters, the concept confused would have required employers to employers, created disincentives to [t]he new definition for classifying acknowledge that the case involved ‘‘restricted work activity’’ could increase the providing light duty work or return-to- number of cases that would be subject to this restricted work by placing a check in the work programs, and provided no useful standard, and subsequently, classified as a restricted work column on the Log but information (see, e.g., Exs. 15: 119, 203, recordable incident. Small businesses would would no longer have required them to 235, 259, 336, 414, 427). For example, face increased recordkeeping. Under the count the number of restricted work the American Bakers Association said, proposed definition, a case would be days associated with a particular case. ‘‘We believe that the concept and determined as a ‘‘restricted work activity’’ if At the time of the proposal, OSHA definitions of ‘restricted work activity’ the employee cannot perform what he or she believed that dropping the requirement should be eliminated. That term and its was doing at the time of the illness or injury, or he or she could not perform the activities to count restricted days was appropriate proposed definition is so ambiguous as because the Agency lacked data scheduled for that day. While this would be to be unworkable, and information a very simple method, it would encompass showing that restricted work day counts gleaned from that terminology would more recordable incidents. Many workers were being used by employers in their have little reliability or usefulness’’ (Ex. have a myriad of tasks associated with their safety and health programs. In addition, 15: 427). job. If an employee can return to work and the proposal would have limited the The National Grain and Feed perform functions within their job work activities to be considered by the Association agreed, arguing that the description, this should not be considered employer in determining whether the recording of restricted work cases ‘‘restricted work activity’’. *** injured or ill worker was on restricted should be eliminated on the following Several commenters recommended work. Under the former rule, employers grounds: that OSHA rely on a definition of had to consider whether an injured or restricted work that would focus on ill employee was able to perform ‘‘all [w]e agree with the conclusion of the Keystone Report that ‘‘the recording of ‘‘non productive work’’ and exclude the the duties’’ normally connected with his restricted work is perhaps the least recording of any case where the or her job when deciding if the worker’s understood and least accepted concept in the employee was still productive (see, e.g., job was restricted; OSHA interpreted recordkeeping system.’’ We disagree with Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). ‘‘all the duties’’ to include any work OSHA, however, that the concept of For example, Countrymark Cooperative, activity the employee performed at any restricted work is meaningful. For example, Inc. (Ex. 15: 9) stated: time within a year. Under the proposal, there is a wide range of restrictions that may the duties that the employer would have be placed on an injured employee’s activity [w]e disagree with a portion of the definition for restricted work activity. We been required to consider were after returning to work depending on the nature of the injury (e.g., the range of work agree that this should include injuries or narrowed to include only (1) those work possible for an employee who has illnesses where the worker is not capable of activities the employee was engaged in experienced a slight sprain versus an performing at full capacity for a full shift. at the time of injury or illness onset, or employee with a broken bone). Additionally, However, by addressing the task that they (2) those activities the employee would the concept of restricted work is greatly were engaged in at the time of the injury will have been expected to perform on that dependent on individual employee create problems. Most employees today have day (61 FR 4059). OSHA also requested motivation and job description. * * * numerous assignments and responsibilities. comment in the proposal on the Importantly, we believe the concepts They move from one task to another during a given day and during a given week. What appropriateness of limiting the activities embodied in the proposed restricted work definition run counter to modern work they are doing at the time they are injured to be considered and on other practices that encourage workers to return to may not be the assignment for the next day definitions of work activities that productive work at the worksite. Workers or the next week. In these cases, they may be should be considered, e.g., would it be who have experienced minor injuries on the back at work in a fully productive role, but appropriate not to consider an employee job can return to productive work under not doing the same task as when they were to be on restricted work if he or she is employer ‘‘return-to-work’’ programs. For hurt. If they are performing a fully productive able to perform any of his or her former this reason, the concept of restricted work is role within the same job description, but job activities? (61 FR 4059). arbitrary and ultimately of little use to either cannot perform the role of the job they were evaluating the effectiveness of an employer’s doing at the time, they should not be Comments on the Proposed Rule’s safety and health programs or determining penalized. In many cases, this job task may Restricted Work and Job Transfer the exposure of workers to a hazard at a not be active at the time they return. * * * Provisions specific worksite. We, therefore, recommend It should be very clear that the ability to that the Agency delete the category of return an employee to a productive role The comments OSHA received on restricted work injuries from the proposed (whether 50% or 100%) is extremely these provisions were extensive. changes to 29 CFR 1904. Removal of this important to any ‘‘Return-to-Work’’ Program. Commenters offered a wide variety of section will simplify the recordkeeping If that person is returned to work and is
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performing at full capacity in a given task or her normal job duties. Focusing on what reporting. Many workplaces have armies of within their job description, this should not specifically they were doing at the time of ‘‘walking wounded’’ rather than reporting be recorded unless it meets other criteria injury could incorrectly base this lost or restricted work activity. OSHA should such as medical treatment. If we return to the determination on an activity that is at the very least adopt the position of the days of recording these and penalizing the performed rarely. Also, focusing on what Keystone Report which recommended that employer, they may be inclined to return to they were scheduled to do for that week restricted work activity should be recorded if the days of only allowing employees to would not be useful for those whose the employee is ‘‘(1) unable to perform the return to work when they are 100% in all schedules can change daily (Ex. 15: 247). task he or she was engaged in at the time of given tasks within their job description. If the injury or onset of illness, or (2) unable this occurs, we all lose. * * * We do agree Adopt the Americans With Disabilities to perform any activity that he or she would that any time an employee is returned to Act Definition of Essential Duties have performed during the week.’’ The UBC believes that the best definition of restricted work and is restricted to only perform certain The Laboratory Corporation of jobs, can only return for a limited duration, work activity would be any illness or injury or must be reassigned to another task, this America’s comment (Ex. 15: 127) was which inhibits, interferes with, or prevents a should be recorded as a restricted work case typical of those of several commenters worker from performing any or all of the (Ex. 15: 9). who suggested that OSHA use the functions considered to be a normal part of concept of essential job duties that is his or her trade or occupation as defined in Others recommended that OSHA also used for the administration of the the applicable job description (Ex. 20). adopt the Keystone Report’s definition Americans with Disabilities Act (ADA) of restricted work (see, e.g., Exs. 15: 123, (see, e.g., Exs. 15: 127, 136, 137, 141, Do Not Count Incidents Involving Only 129, 145, 225, 359, 379, 418). For 224, 266, 278, 431): One or a Few Days as Restricted Work example, the National Safety Council A number of commenters recommended: [t]he definition used by the Americans with Disability Act (ADA) would be very recommended that restricted work [t]he concept of restricted work activity as useful here. That definition indicates that activity involving only the day of described on page 4046 [of the Federal restricted work exists if an employee is injury/illness onset should not trigger Register] is one with which the Council unable to perform the essential functions of an OSHA recordable case (see, e.g., Exs. concurs, but the specific wording in his/her job. Since these essential functions proposed section 1904.3 is less clear. The 15: 19, 44, 146, 154, 156, 198, 364, 374, are identified in the employee’s job 391). Typical of these comments is one colon following the opening clause of the description, the employer would have a definition ‘‘at full capacity for a full shift:’’ from the Society of the Plastics Industry, consistent ‘‘yardstick’’ with which to make seems to mean that the employee must be this determination for each employee. Inc.: able to perform the task during which he/she [e]mployers have had problems with was injured and the other tasks he/she OSHA’s definition of restricted work activity performed or would have performed that day Adoption of the Proposed Approach because OSHA’s interpretation that having not only for the normal frequency or Will Lead to Underreporting any work restriction, even one which lasts duration, but ‘‘at full capacity for a full Some commenters, such as the AFL– only for the remainder of the shift and which shift.’’ For example, if the employee were CIO, opposed the proposed approach to imposes no significant limitations on the required to open a valve at the start of a shift employee’s ability to perform his or her job, and close it at the end of the shift, the current restricted work on the grounds that it makes a case recordable. OSHA should adopt wording seems to say that if the employee would result in underreporting: the administratively simple and common- could not spend the entire shift opening and [w]e believe this proposed provision would sense rule that restricted work activity on the closing the valve, then his/her work activity entice employers to manipulate records and day of the case report does not make the case is restricted. * * * The Council also believes lead to further under-reporting. We strongly recordable. . . . The definition of ‘‘restricted that the concept of restricted work activity as suggest that the Agency adopt the Keystone work activity’’ should be clarified to state formulated by the Keystone Report is Report recommendation of restricted work that the criteria apply only to days following appropriate in that it represents a consensus which requires an employer to record if the the day of injury or onset of the illness. An among the various stakeholder groups. For employee is (1) unable to perform the task he employee’s inability to work a full shift on this reason, we also recommend that the task or she was engaged in at the time of injury the actual date of injury or onset of illness limitations refer to the week’s activities or onset of illness (task includes all facets of should not require recording as a restricted rather than the day’s activities (Ex. 15: 359). the assignment the employee was to work case. As noted above, because OSHA’s The Union of Needletrades, Industrial perform); or (2) unable to perform any interpretation that having any work and Textile Employees (UNITE) agreed activity that he or she would have performed restriction, even one which lasts only for the with the National Safety Council that a during the week (Ex. 15: 418). remainder of the shift and which imposes no different time period should be used in Other commenters agreed (see, e.g., significant limitations on the employee’s determining what job activities to Exs. 20, 15: 17, 129, 418). For example, ability to perform his or her job, makes a case recordable, many non-serious, non-disabling consider. UNITE suggested that OSHA the United Brotherhood of Carpenters cases are now recorded. Cases which do not use the employee’s monthly, rather than (UBC) Health & Safety Fund of North otherwise meet the recordability criteria daily or weekly, duties to define America argued in favor of a broader should not be recordable. Therefore, as restricted work activity (Ex. 15: 380). definition to avoid this problem: recommended above, OSHA should A few commenters expressed concern [t]he majority of workers represented by eliminate the current requirement to record cases in which restricted work activity occurs that use of the proposed restricted work the UBC, such as carpenters and millwrights, only on the day of the case report (Ex. 15: definition could lead employers to routinely perform a wide variety of tasks 364). include unusual, extraordinary or rarely during their normal workdays in either performed duties in the ‘‘work construction or industrial settings. Therefore, The Kodak Company urged OSHA not activities’’ to be considered when OSHA should not limit the classification of to count cases involving restrictions determining whether a case was a ‘‘restricted work activity’’ to either ‘‘the task lasting only for three days as restricted restricted work case (see, e.g., Exs. 15: he or she was engaged in at the time of the work cases on the grounds that such 80, 247). For example, the Arizona injury’’ or his or her daily work activity cases are ‘‘minor’’: ‘‘Restricted work (daily work activity includes all assignments Public Service Company said: the employee was expected to perform on the activity allows employers and [d]etermining restricted duty days should day of the injury or onset of illness)’’ as employees to remain at work. This is a remain as it currently is in the Guidelines. proposed. The UBC feels that the current win-win situation for both. Kodak The restriction should focus on the ability of proposal would allow for manipulation of the suggests restricted work activity be the employee to perform all or any part of his records and will lead to serious under counted only if the restriction lasts
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longer than 3 working days. Hence, only treatment and work restrictions (Exs. 15: the restaurant business. It is not uncommon serious cases would be recorded’’ (Ex. 9, 348). For example, the E. I. du Pont for a cook to cut himself or herself, apply a 15: 322). de Nemours & Company (DuPont) said Band-Aid, and then temporarily be that the reassigned to janitorial work for a day or two Adopt the Proposed Approach to keep the cut dry while it heals. This could ‘‘Restricted Work Activity’’ definition is a A large number of commenters be considered work duty modification and definite improvement over the current one. would then need to be reported to OSHA. As supported OSHA’s proposed definition, Suggest making treatment AND restriction you can see, this type of minor occurrence however (see, e.g., Exs. 27, 15: 26, 61, the criteria. An insignificant injury can result would clog the system with needless paper 70, 133, 159, 171, 185, 199, 204, 242, in being told not to climb ladders. This does (Exs. 15: 3, 4, 5, 6). 263, 269, 270, 272, 283, 303, 305, 307, not negate the ability to do the job; it just Phibro-Tech, Inc. offered this 317, 318, 324, 334, 347, 351, 373, 375, limits the job to levels where ladder climbing comment: 377, 378, 384, 390, 392, 405, 409, 413, is not required. * * * Restricted work 425, 430). Typical of these were activity is more dependent on timing and job [a] factory employee who normally than on injury severity. It doesn’t necessarily performs heavy labor may be assigned office comments from the New Jersey focus on hazardous conditions. Certainly the Department of Labor (Ex. 15: 70), which work as a restricted work activity, and may definition in the proposed guidelines is far not actually be contributing anything commented: more specific and appropriate than the meaningful to the job. Will employers be [p]roviding a clear definition of what current one. We suggest consideration be required to limit what is considered ‘‘light constitutes restricted work and an item to given to dropping the Restricted category duty’’ tasks? Will there be directives as to indicate that an injured employee has been where medical treatment is not also given. when an employee should really be off work shifted to restricted work activity should For example, a slight muscle strain will or when he can be on ‘‘light duty’’? improve the accuracy and completeness of result in advice not to climb ladders. The Occupational physicians all have different case reporting. Identifying the actual number case would be in the restricted category opinions as to when an employee can return of cases in which employees are shifted to although the treatment, if any, would be at for light or full duty. It would be helpful to alternate work, which are thought to be the first aid level. Injury severity is the have more direction on this issue so under reported, and adding the date when equivalent of a cut finger’’ (Ex. 15: 348). employees aren’t sent back to work too soon the employee returned to his/her usual work Other comments sought a broader, or kept off on lost time too long (Ex. 15: 35). will help to assess the impact of these more inclusive definition of restricted The law firm of Constangy, Brooks & incidents. work, one that relies on job descriptions Smith, LLC, asked, ‘‘[w]ould a The American Petroleum Institute, (see, e.g., Exs. 15: 41, 62, 198, 426). For restriction of piece rate or production which believed that the proposed example, Robert L. Rowan, Jr. stated: rate be considered restricted duty under definition would be easy to interpret [t]he definition of ‘‘restricted work the proposed definition even though it and would therefore improve recording activity’’ also concerns me and I believe it is is not considered restricted duty under consistency, stated: ‘‘API strongly unsuitable. The definition refers to an the present guidelines?’’ (Ex. 15: 428). supports OSHA’s proposed definition of employee who is not capable of performing Miller Brewing Company added, restricted activity. Because it is much at full capacity for a full shift the ‘‘task’’ that ‘‘[w]ould also recommend that OSHA more logical and easy to understand he or she was engaged in at the time of the attempt to clarify whether a treating than the current definition, API believes injury or onset of illness. The definition should include ‘‘any and all tasks’’ within physician’s [non-specific] return to it will lead to greater consistency’’ (Ex. the employee’s clearly defined job work instructions such as ‘‘8 hours 15: 375). description’’ (Ex. 15: 62). only,’’ ‘‘self restrict as needed,’’ and ‘‘work at your own pace’’ will constitute Use Different Triggers Than Those The Maine Department of Labor, restricted work activity under the Proposed however, preferred the former rule’s proposed recordkeeping rule’’ (Ex. 15: interpretation, with some modifications: The Commonwealth Edison Company 442). recommended that restricted work be [w]e agree that there should be no mention The Pacific Maritime Association defined only in terms of the hours the of ‘‘normal’’ duties in the definition. Include: stated: employee is able to work, not the temporary transfer to a position or functions the employee is able to department other than the position or This is another example where the ILWU/ PMA workforce does not fit into the perform: department the worker was working at when he/she was injured. Some of these can be proposed recordkeeping system. The [C]omEd disagrees with OSHA on its detected on payroll records; only being able regulation as written pertains to employers definition of ‘‘restricted work activity’’. We to work part of their workday. Time forms who assign their employees to work tasks. As propose that OSHA consider that restricted could raise suspicion here; a health care previously mentioned, in our industry it is work activity simply state ‘‘Restricted work provider puts the person on written the employee who selects the job they will activity means the worker, due to his or her restrictions unless the employer can show perform. This dispatch system, or job injury or illness, is unable to work a full that the restrictions listed do not impact the selection process, presents many problems shift.’’ OSHA’s proposed definition of employee’s ability to do his or her scheduled when the maritime industry is required to restricted work activity is even more job during the time period of the restrictions. conform to requirements established for confusing than the current one. ComEd’s Keep a copy of the restrictions in the file. The traditional employee/employer relationships proposed definition will allow quantifiable, doctor’s name on the OSHA 301 serves as found in general industry. At the present direct cost tracking for this category of injury another possible check (Ex. 15:41). time there is no method available to or illness. Workers will more than likely have determine why an individual longshoreman some kind of meaningful work waiting for Miscellaneous Comments and Questions selects a specific job. Therefore, the them if the injury is not disabling. If he or requirement to identify, track, and record she is able to work the required normal shift There were also a variety of ‘‘restricted work activity’’ may be impossible hours, don’t count the case as restricted. If miscellaneous comments and questions to accomplish [in the maritime industry] (Ex. they miss the entire shift, count is as a day about the proposed approach to the 15: 95). away from work. If they miss part of the shift, recording of restricted work cases. For count it as restricted (Ex. 15: 277). example, Bob Evans Farms suggested Preventive Job Transfers Two commenters suggested that a that: Several commenters (see, e.g., Exs. 25; case should only be considered [w]hen considering this proposal, OSHA 15: 69, 156, 406) urged OSHA to make restricted when it involves both medical needs to keep in mind the special nature of some accommodation for ‘‘preventive
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transfers’’ and medical removals. Many voluntary or mandatory medical removals (4) How do I record a work-related injury transfers and removals of this nature are where no additional symptoms are present or illness that involves restricted work or job related to work-related musculoskeletal are examples of appropriate action taken by transfer? disorders and are used to prevent minor employers to prevent harm to employees and When an injury or illness involves not of a recordable injury or illness. * * *’’ restricted work or job transfer but does not musculoskeletal soreness from involve death or days away from work, you (Ex. 15: 358). becoming worse. The following must record the injury or illness on the comments are representative of the OSHA 300 Log by placing a check mark in views of these commenters. The Final Rule’s Restricted Work and Job the space for job transfer or restricted work Ogletree, Deakins, Nash, Smoak & Transfer Provisions, and OSHA’s and entering the number of restricted or Stewart (ODNSS) coalition commented: Reasons for Adopting Them transferred days in the restricted work column. [t]his definition [the proposed definition of Paragraph 1904.7(b)(4) contains the (i) How do I decide if the injury or illness restricted work] is overly broad, penalizes restricted work and job transfer resulted in restricted work? employers who have a light duty program in provisions of the final rule. These Restricted work occurs when, as the result place, and fails to take into account that (1) of a work-related injury or illness: today’s employees increasingly are cross provisions clarify the definition of restricted work in light of the comments (A) You keep the employee from trained and perform varied tasks, and (2) the performing one or more of the routine ability of an employee to perform alternative received and continue, with a few functions of his or her job, or from working meaningful work mitigates the seriousness of exceptions, most of the former rule’s the full workday that he or she would the inability to perform work in the two requirements with regard to these kinds otherwise have been scheduled to work; or categories set out in the definition as of cases. OSHA finds, based on a review (B) A physician or other licensed health proposed. The ODNSS Coalition of the record, that these provisions of care professional recommends that the recommends curing these defects by adding employee not perform one or more of the the following proviso to the proposed the final rule will increase awareness among employers of the importance of routine functions of his or her job, or not definition: ‘‘The case should be recorded as work the full workday that he or she would a restricted work case UNLESS the restrictive recording restricted work activity and job transfer cases and make the otherwise have been scheduled to work. work activity is undertaken to relieve minor (ii) What is meant by ‘‘routine functions’’? soreness experienced by a newly hired or recordkeeping system more accurate For recordkeeping purposes, an employee’s transferred employee during a break-in phase and the process more efficient. routine functions are those work activities to prevent the soreness from worsening, or the employee regularly performs at least once the employee otherwise is able to perform OSHA believes that it is even more per week. other existing full-time duties.’’ The important today than formerly that the (iii) Do I have to record restricted work or appropriate nature of the recommended definition of restricted work included in job transfer if it applies only to the day on proviso is underscored by a baseball analogy the final rule be clear and widely which the injury occurred or the illness where the right fielder and the center fielder understood, because employers have began? change positions. They both continue to play recently been relying on restricted work No. You do not have to record restricted on the same team and make substantial (or ‘‘light duty’’) with increasing work or job transfers if you, or the physician contributions, but the strain on the new right frequency, largely in an effort to or other licensed health care professional, fielder is less because he doesn’t have as impose the restriction or transfer only for the much ground to cover (Ex. 15: 406). encourage injured or ill employees to return to work as soon as possible. day on which the injury occurred or the The National Association of According to BLS data, this category of illness began. Manufacturers (NAM) summed up its cases has grown by nearly 70% in the (iv) If you or a physician or other licensed views as follows: health care professional recommends a work last six years. In 1992, for example, 9% restriction, is the injury or illness [a] preventive or prophylactic measure of all injuries and illnesses (or a total of automatically recordable as a ‘‘restricted such as medical removal (as opposed to a 622,300 cases) recorded as lost workday work’’ case? restorative or curative measure) is not and cases were classified in this way solely No. A recommended work restriction is should not be deemed medical treatment, a because of restricted work days, while recordable only if it affects one or more of the job transfer or restricted activity for purposes employee’s routine job functions. To of recordability, in the absence of a in 1998, nearly 18% of all injury and determine whether this is the case, you must substantial impairment of a bodily function illness cases (or a total of 1,050,200 evaluate the restriction in light of the routine (Ex. 25). cases) were recorded as lost workday cases only because they involved functions of the injured or ill employee’s job. Although Organization Resource If the restriction from you or the physician restricted work [BLS Press Release 99– Counselors (ORC) generally endorsed or other licensed health care professional 358, 12–16–99). The return-to-work the proposed approach to the treatment keeps the employee from performing one or programs increasingly being relied on of restricted work cases, it did express more of his or her routine job functions, or by employers (often at the concern about how medical removal from working the full workday the injured or recommendation of their workers’ ill employee would otherwise have worked, cases would be treated under the compensation insurers) are designed to the employee’s work has been restricted and proposed definition: prevent exacerbation of, or to allow you must record the case. [t]he proposed definition of restricted work recuperation from, the injury or illness, (v) How do I record a case where the is a significant improvement over the current rehabilitate employees more effectively, worker works only for a partial work shift because of a work-related injury or illness? [former] one, which was considered by many reintegrate injured or ill workers into employers to be unfair and confusing. It is no A partial day of work is recorded as a day secret that many employers did not the workplace more rapidly, limit of job transfer or restriction for recordkeeping understand the current restricted work rules workers’ compensation costs, and retain purposes, except for the day on which the and, as a result, did not follow them productive workers. In addition, many injury occurred or the illness began. consistently. Additionally, the [proposed] employees are eager to accept restricted (vi) If the injured or ill worker produces elimination of the count of restricted work when it is available and prefer fewer goods or services than he or she would workdays is appropriate and is a recognition returning to work to recuperating at have produced prior to the injury or illness by OSHA that the recording of this count is home. but otherwise performs all of the activities of of little value to either the Agency or his or her work, is the case considered a employers in program evaluation or program The final rule’s requirements in restricted work case? development. * * * Additionally, paragraph 1904.10(b)(4) of the final rule No. The case is considered restricted work requirements for the recording of either state: only if the worker does not perform all of the
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routine functions of his or her job or does not 15: 80, 247). In other words, OSHA 19, 44, 146, 154, 156, 198, 364, 374, work the full shift that he or she would agrees that it makes little sense to 391). otherwise have worked. consider an employee who is prevented The final rule’s restricted work (vii) How do I handle vague restrictions by an injury or illness from performing provisions also clarify that work from a physician or other licensed health care professional, such as that the employee a particular job function he or she never restriction must be imposed by the engage only in ‘‘light duty’’ or ‘‘take it easy or rarely performed to be restricted (see, employer or be recommended by a for a week’’? e.g., Exs. 15: 80, 247). For example, health care professional before the case If you are not clear about a physician or OSHA finds that, for the purposes of is recordable. Only the employer has the other licensed health care professional’s recordkeeping, an activity that is ultimate authority to restrict an recommendation, you may ask that person performed only once per month is not employee’s work, so the definition is whether the employee can perform all of his performed ‘‘regularly.’’ This approach is clear that, although a health care or her routine job functions and work all of consistent with OSHA interpretations professional may recommend the his or her normally assigned work shift. If the answer to both of these questions is ‘‘Yes,’’ under the former rule. Limiting the restriction, the employer makes the final then the case does not involve a work definition to ‘‘essential functions,’’ the determination of whether or not the restriction and does not have to be recorded ADA term recommended by several health care professional’s recommended as such. If the answer to one or both of these commenters (see, e.g., Exs. 15: 127, 136, restriction involves the employee’s questions is ‘‘No,’’ the case involves 137, 141, 224, 266, 278, 431), would be routine functions. Restricted work restricted work and must be recorded as a inappropriate, because OSHA needs assignments may involve several steps: restricted work case. If you are unable to information on all restricted work cases, an HCP’s recommendation, or obtain this additional information from the not just those that interfere with the employer’s determination to restrict the physician or other licensed health care professional who recommended the essential functions of the job (29 U.S.C. employee’s work, the employers restriction, record the injury or illness as a 657(c)(2)). analysis of jobs to determine whether a case involving job transfer or restricted work. On the other hand, OSHA agrees with suitable job is available, and assignment (viii) What do I do if a physician or other those commenters who argued that the of the employee to that job. All such licensed health care professional proposed definition, to limit the restricted work cases are recordable, recommends a job restriction meeting definition of restricted activity to the even if the health care professional OSHA’s definition but the employee does all specific functions or tasks the employee allows some discretion in defining the of his or her routine job functions anyway? was engaged in on the day of injury or type or duration of the restriction, an You must record the injury or illness on the OSHA 300 Log as a restricted work case. onset of illness would be unsatisfactory, occurrence noted by one commenter If a physician or other licensed health care because doing so could fail to capture (Ex. 15:442). However, the final rule’s professional recommends a job restriction, activities that an employee regularly provisions make it clear that the you should ensure that the employee performs (see, e.g., Exs. 20; 15: 17, 129, employee is not the person making the complies with that restriction. If you receive 380, 418). In the final rule, OSHA has determination about being placed on recommendations from two or more decided that defining restricted work as restricted work, as one commenter (Ex. physicians or other licensed health care work that an employee would regularly 15: 97) feared. providers, you may make a decision as to have performed at least once per week A number of commenters suggested which recommendation is the most that OSHA cease to require the authoritative, and record the case based upon is appropriate, i.e., OSHA believes that that recommendation. the range of activities captured by this recording of restricted work cases interval of time will generally reflect the entirely (see, e.g., Exs. 15: 119, 427). The concept of restricted work range of an employee’s usual work However, the Congress has directed that activity in the final rule falls somewhere activities. Activities performed less the recordkeeping system capture data between the commenters’ broadest and frequently than once per week reflect on non-minor work-related injuries and narrowest definitions of the work more uncommon work activities that are illnesses and specifically on restricted activities that should be considered in not considered routine duties for the work cases, both so that the national determining whether a particular case purposes of this rule. However, the final statistics on such injuries and illnesses involves work restriction. The final rule does not rely on the duties the will be complete and so that links rule’s concept of restricted work is employee actually performed during the between the causes and contributing based both on the type of work activities week when he or she was injured or factors to such injuries and illnesses the injured or ill worker is able to became ill. Thus, even if an employee will be identified (29 U.S.C. 651(b)). perform and the length of time the did not perform the activity within the Days away and restricted work/job employee is able to perform these last week, but usually performs the transfer cases together constitute two of activities. The term ‘‘routine functions activity once a week, the activity will be the most important kinds of job-related of the job’’ in paragraphs 1904.7(b)(4)(i) included. OSHA believes that this injuries and illnesses, and it would be and (b)(4)(ii) clarifies that OSHA change in definition will foster greater inappropriate not to record these serious considers an employee who is unable, acceptance of the concept of restricted cases. OSHA also cannot narrow the because of a work-related injury or work among employers and employees definition of restricted work to those illness, to perform the job activities he because of its common sense approach. cases where the employee is at work but or she usually performs to be restricted Use of the term ‘‘partial work shift’’ in cannot do productive work, as several in the work he or she may perform. Use paragraph 1904.7(b)(4)(v) covers commenters suggested (see, e.g., Exs. 15: of the term ‘‘routine functions of the restrictions on the amount of time an 9, 45, 46, 89, 437), because the Congress job’’ should eliminate the concern of employee is permitted to work because clearly intended that workers whose some commenters who read the of the injury or illness. This work-related injuries and illnesses were proposed definition as meaning that an interpretation of restricted work was not so severe as to prevent them from doing employee had to be able to perform generally disputed by commenters, their former work or from working for every possible work activity, including although some argued that the a full shift had experienced an injury or those that are highly unusual or restriction on the hours worked should illness that was non-minor and thus performed only very rarely, in order for last for a specific number of days before worthy of being recorded. OSHA does the employer to avoid recording the case the case becomes recordable as a not believe that requiring employers to as a restricted work case (see, e.g., Exs. restricted work case (see, e.g., Exs. 15: record such injuries and illnesses as
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restricted work cases will in any way OSHA does not believe that this concept Second, for the definition of restricted discourage the use of restricted work or is relevant to the recordkeeping rule, for work to apply, the work restriction must return-to-work programs, and the the following reasons. Transfers or be decided on by the employer, based marked shift in the number of restricted restrictions taken before the employee on his or her best judgment or on the work cases reported to the BLS in the has experienced an injury or illness do recommendation of a physician or other last few years bears this out. It would not meet the first recording requirement licensed health care professional. If a also not be appropriate for OSHA to of the recordkeeping rule, i.e., that a work restriction is not followed or require that employers only record as work-related injury or illness must have implemented by the employee, the restricted work cases those cases in occurred for recording to be considered injury or illness must nevertheless be which the injured or ill worker requires at all. A truly preventive medical recorded on the Log as a restricted case. medical treatment and is placed on treatment, for example, would be a This was also the case under the former restricted work, as some commenters tetanus vaccination administered rule. suggested (see, e.g., Exs. 15: 9, 348). The routinely to an outdoor worker. Third, like the former rule, the final OSH Act clearly requires the recording However, transfers or restrictions whose rule’s definition of restricted work relies of all work-related cases that require purpose is to allow an employee to on two components: whether the either medical treatment or restricted recover from an injury or illness as well employee is able to perform the duties work. as to keep the injury or illness from of his or her pre-injury job, and whether Under the final rule, employers are becoming worse are recordable because the employee is able to perform those not required to record a case as a they involve restriction or work transfer duties for the same period of time as restricted work case if the restriction is caused by the injury or illness. All before. imposed on the employee only for the restricted work cases and job transfer The principal differences between the day of the injury or onset of illness. cases that result from an injury or final and former rules’ concept of OSHA thus agrees with a number of illness that is work-related are restricted work cases are these: (1) the commenters (see, e.g., Exs. 15: 19, 44, recordable on the employer’s Log. final rule permits employers to cap the 146, 154, 156, 198, 364, 374, 391) that total number of restricted work days for As the regulatory text for paragraph restricted activity only on the day the a particular case at 180 days, while the (b)(4) makes clear, the final rule’s injury occurred or the illness began does former rule required all restricted days requirements for the recording of not justify recording. This represents a for a given case to be recorded; (2) the restricted work cases are similar in change in the treatment of restricted final rule does not require employers to work cases from OSHA’s practice under many ways to those pertaining to count the restriction of an employee’s the former rule. OSHA has made this restricted work under the former rule. duties on the day the injury occurred or change to bring the recording of First, like the former rule, the final rule the illness began as restricted work, restricted work cases into line with that only requires employers to record as providing that the day the incident for days away cases: under the final restricted work cases those cases in occurred is the only day on which work rule, employers are not required to which restrictions are imposed or is restricted; and (3) the final rule record as days away or restricted work recommended as a result of a work- defines work as restricted if the injured cases those injuries and illnesses that related injury or illness. A work or ill employee is restricted from result in time away or time on restriction that is made for another performing any job activity the restriction or job transfer lasting only for reason, such as to meet reduced employee would have regularly the day of injury of illness onset. production demands, is not a recordable performed at least once per week before Several commenters recommended restricted work case. For example, an the injury or illness, while the former that cases involving medical removal employer might ‘‘restrict’’ employees rule counted work as restricted if the under the lead or cadmium standards or from entering the area in which a toxic employee was restricted in performing cases involving ‘‘voluntary’’ preventive chemical spill has occurred or make an any activity he or she would have actions, such as cases involving job accommodation for an employee who is performed at least once per year. transfer or restricted work activity, not disabled as a result of a non-work- In all other respects, the final rule be considered recordable under the final related injury or illness. These cases continues to treat restricted work and rule; these participants argued that would not be recordable as restricted job transfer cases in the same manner as requiring employers to record voluntary work cases because they are not they were treated under the former rule, transfers or removals would create a associated with a work-related injury or including the counting of restricted disincentive for employers to take these illness. However, if an employee has a days. Paragraph 1904.7(b)(4)(xi) requires protective actions (see, e.g., Exs. 25, 15: work-related injury or illness, and that the employer to count restricted days 69, 156, 358, 406). Under the final rule employee’s work is restricted by the using the same rules as those for (see section 1904.9), mandated removals employer to prevent exacerbation of, or counting days away from work, using made in accordance with an OSHA to allow recuperation from, that injury § 1904.7(b)(3)(i) to (viii), with one health standard must be recorded either or illness, the case is recordable as a exception. Like the former rule, the final as days away from work or as days of restricted work case because the rule allows the employer to stop restricted work activity, depending on restriction was necessitated by the counting restricted days if the the specific action an employer takes. work-related injury or illness. In some employee’s job has been permanently Since these actions are mandated, no cases, there may be more than one modified in a manner that eliminates disincentive to record is created by this reason for imposing or recommending a the routine functions the employee has recordkeeping rule. work restriction, e.g., to prevent an been restricted from performing. Some commenters, however, urged injury or illness from becoming worse or Examples of permanent modifications OSHA to make an exception from the to prevent entry into a contaminated would include reassigning an employee recording requirements for cases where area. In such cases, if the employee’s with a respiratory allergy to a job where the employer voluntarily, or for work-related illness or injury played such allergens are not present, or adding preventive purposes, temporarily any role in the restriction, OSHA a mechanical assist to a job that transfers an employee to another job or considers the case to be a restricted formerly required manual lifting. To restricts an employee’s work activities. work case. make it clear that employers may stop
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counting restricted days when a job has The former recordkeeping rule (7) Use of wound coverings such as been permanently changed, but not to defined first aid as ‘‘any one-time bandages, gauze pads, etc. eliminate the count of restricted work treatment and any follow-up visit for the (8) Use of any hot/cold therapy (e.g. altogether, the rule makes it clear that at purpose of observation, of minor compresses, soaking, whirlpools, non- least one restricted workday must be scratches, cuts, burns, splinters, and so prescription skin creams/lotions for counted, even if the restriction is forth, which do not ordinarily require local relief, etc.) except for imposed immediately. A discussion of medical care.’’ Medical treatment was musculoskeletal disorders (see the desirability of counting days of formerly defined as ‘‘treatment Mandatory Appendix B to Part 1904) restricted work and job transfer at all is administered by a physician or by (9) Use of any totally non-rigid, non- included in the explanation for the registered professional personnel under immobilizing means of support (e.g. OSHA 300 form and the § 1904.29 the standing orders of a physician.’’ elastic bandages) requirements. The revisions to this To help employers determine the (10) Drilling of a nail to relieve category of cases that have been made recordability of a given injury, the pressure for subungual hematoma in the final rule reflect the views of Recordkeeping Guidelines, issued by the (11) Use of eye patches commenters, suggestions made by the Bureau of Labor Statistics (BLS) in 1986, (12) Removal of foreign bodies not Keystone report (Ex. 5), and OSHA’s provided numerous examples of embedded in the eye if only irrigation experience in enforcing the former medical treatments and of first aid or removal with a cotton swab is recordkeeping rule. treatments (Ex. 2). These examples were required published as mutually exclusive lists, (13) Removal of splinters or foreign Paragraph 1904.7(b)(5) Medical i.e., a treatment listed as a medical material from areas other than the eyes Treatment Beyond First Aid treatment did not also appear on the by irrigation, tweezers, cotton swabs or The definitions of first aid and first-aid list. Thus, for example, a other simple means (61 FR 4059) medical treatment have been central to positive x-ray diagnosis (fractures, OSHA also solicited comment on the OSHA recordkeeping scheme since broken bones, etc.) was included among three specific definitional questions: 1971, when the Agency’s first the treatments generally considered (A) Should any treatments on the recordkeeping rule was issued. Sections medical treatment, while a negative x- proposed first aid list be excluded and 8(c)(2) and 24(a) of the OSH Act ray diagnosis (showing no fractures) was should any treatments be added? specifically require employers to record generally considered first aid. Despite (B) Should a list of medical treatments all injuries and illnesses other than the guidance provided by the also be provided? Which treatments? those ‘‘requiring only first aid treatment Guidelines, OSHA continued to receive (C) Should simple administration of and which do not involve medical requests from employers for oxygen be defined to exclude more treatment, loss of consciousness, interpretations of the recordability of severe procedures such as Intermittent restriction of work or motion, or transfer specific cases, and a large number of Positive Pressure Breathing (IPPB)? If so, to another job.’’ Many injuries and letters of interpretation addressing the how? illnesses sustained at work do not result distinction between first aid and OSHA received many comments on in death, loss of consciousness, days medical treatment have been issued. the general approach taken in the away from work or restricted work or The following sections discuss the proposal, i.e., that employers rely on a job transfer. Accordingly, the first aid definitions of medical treatment and comprehensive list of first aid treatment and medical treatment criteria may be first aid proposed by OSHA, the and define any treatment not on that list the criteria most frequently evaluated by comments received in response to the as medical treatment. The Agency also employers when deciding whether a proposal, and the definition of medical received many comments on the given work-related injury must be treatment that OSHA has decided to individual items on the proposed first recorded. include in the final rule. aid list. The following discussion In the proposed rule, OSHA presented In the past, OSHA has not interpreted addresses comments on the general a simplified approach: to define as first the distinction made by the Act between approach adopted in the final rule and aid anything on a list of first aid minor (i.e., first aid only) injuries and then deals with comments on specific treatments, and to define as medical non-minor injuries as applying to items and OSHA’s responses to each treatment any treatment not on that list. occupational illnesses, and employers issue. have therefore been required to record Specifically, medical treatment was A large number of commenters agreed all occupational illnesses, regardless of defined as ‘‘any medical cure or with OSHA’s proposal to rely on a finite severity. As a result of this final rule, treatment beyond first aid’’ (61 FR list of treatments considered first aid OSHA will now apply the same 4059). and to consider all other treatments The proposal contained a recordability criteria to both injuries medical treatment (see, e.g., Exs. 15: 9, comprehensive list of all treatments that and illnesses (see the discussion of this 13, 26, 27, 74, 76, 87, 95, 122, 127, 156, would be considered ‘‘first aid’’ issue in the Legal Authority section of 163, 185, 188, 199, 204, 218, 242, 263, regardless of the provider: this preamble). The Agency believes (1) Visit(s) to a health care provider 269, 270, 283, 297, 324, 332, 338, 347, that doing so will simplify the decision- limited to observation 357, 359, 377, 378, 385, 386, 387, 395, making process that employers carry out (2) Diagnostic procedures, including 397, 405, 407, 414, 434). Several when determining which work-related the use of prescription medications commenters wanted no change to the injuries and illnesses to record and will solely for diagnostic purposes (e.g. eye proposal (see, e.g., Exs. 15: 26, 76, 204, also result in more complete data on drops to dilate pupils) 385, 378), while others agreed with the occupational illness, because employers (3) Use of nonprescription general approach but stated that the first will know that they must record these medications, including antiseptics aid list should be more comprehensive cases when they result in medical (4) Simple administration of oxygen (see, e.g., Exs. 15: 199, 332, 338, 357, treatment beyond first aid, regardless of (5) Administration of tetanus or 386, 387). whether or not a physician or other diphtheria shot(s) or booster(s) Commenters supported the proposed licensed health care professional has (6) Cleaning, flushing or soaking approach for a variety of reasons. For made a diagnosis. wounds on skin surface example, some stated that a finite list
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would improve the clarity of the approach did not provide flexibility to A number of commenters suggested that definition, reduce confusion for adapt to changing medical practice, and OSHA keep its former definitions of first employers, and reduce inaccuracy in the would not be capable of responding to aid and medical treatment (see, e.g., Exs. data (see, e.g., Exs. 15: 87, 95, 122, 127, changes in technology (see, e.g., Exs. 15: 15: 83, 119, 123, 129, 145, 225, 337, 380, 163, 185, 188, 395, 338, 242, 270, 269, 18, 63, 96, 335, 348). The comments of 389, 418, 430). Several commenters 263, 347, 377, 386). The statement of the the Dow Chemical Corporation are urged OSHA to update the former rule’s American Iron and Steel Institute representative of these views: definitions using the proposed rule’s exemplified these comments: Dow believes that OSHA should provide listing of first aid treatments (see, e.g., Consistent with its statutory mandate, non-exhaustive lists for both first aid and Exs. 15: 83, 380, 418). Other OSHA’s proposal would also require the medical treatment, rather than defining one commenters urged OSHA not to change recording of all work-related injuries and solely by the exclusion of the other. Dow the definition in any way because it illnesses that result in medical treatment believes this suggested approach is necessary would produce a break in the historical beyond first aid. The expanded and finite list to take into account that these lists cannot be series of occupational injury and illness of treatments that constitute first aid would comprehensive or all-inclusive as it is data (see, e.g., Exs. 15: 123, 145, 389). clarify the task of deciding what to record, impossible to list every possible contingency. Several commenters made suggestions because any treatment that does not appear Moreover, technology is constantly changing that they believed would introduce and cannot be accounted for in a static list. on this list will be considered a medical flexibility into the proposed rule’s first treatment. (Ex. 15: 395) For example, one can now obtain Steri-Strips over the counter where previously it would aid definition. The National Restaurant The Ford Motor Company agreed, have been considered ‘‘medical treatment.’’ Association suggested that OSHA add a stating: Since exhaustive lists do not allow the ‘‘catchall’’ category to the list to include Ford supports that the definition of first flexibility to take these technologies into ‘‘any similar type of treatment’’ (Ex. 15: aid be modified to consist of a account nor capture every possible situation, 96, p. 5). The General Electric Company comprehensive list of treatments. Treatments much would still be left to supposition. By urged that the following language be not found on the first aid list would be providing an illustrative list for both first aid added: ‘‘Other treatments may be considered medical treatment for and medical treatment, OSHA would be considered first aid so long as they are recordkeeping purposes. Assuming that the giving adequate guidance for the regulated community. Dow recommends OSHA make recognized as first aid actions and [are] list will be comprehensive, it will reduce not listed in the definition of medical confusion, lead to consistent recordkeeping, this modification in the final rule. (Ex. 15: and greatly simplify the decision making 335) treatment’’ (Ex. 15: 349, p. 8). Some commenters suggested allowing the process (Ex. 15: 347). A number of commenters urged health care professional to determine OSHA to use the definition of medical Some commenters stated that the whether the activity was properly treatment as a way to focus primarily on proposed approach would be simpler classified as first aid or medical the seriousness of the injury or illness for employers, generate more consistent treatment (see, e.g., Exs. 27; 15: 131, (see, e.g., Exs. 15: 147, 201, 308, 341, records, and facilitate better 173, 176, 201, 334, 382, 392, 434). A 375, 395, 418). For example, the comparisons of injury and illness data typical comment along these lines was American Petroleum Institute remarked over time (see, e.g., Exs. 15: 13, 122, one from the American Forest and Paper ‘‘* * * the fundamental issue is the 127, 242, 270, 269, 263, 283, 297, 347, Association, which stated that ‘‘*** 359, 377, 405, 407). According to the seriousness of the injury or illness, not we believe a qualified health care Southern Nuclear Operating Company: the treatment’’ (Ex. 375–A, p. 7). The professional should have the authority ‘‘Providing a comprehensive list of all Caterpillar Corporation provided to determine what is properly first-aid treatments will remove the lengthy comments on the definition of characterized as first aid and what current ambiguity in deciding if a case medical treatment, including the should be properly characterized as involves first aid only or if it is medical following criticism of the proposed medical treatment’’ (Ex. 15:334, p. 7). treatment. This should provide more approach: Two commenters suggested that the consistent recordkeeping and allow for Insignificant injuries for which medical health care professional be allowed to more meaningful comparisons of treatment is provided do not provide decide whether an action constituted accident histories’’ (Ex. 15: 242, p. 2). valuable information for safety and health first aid or medical treatment only if the A number of commenters, however, analysis. This proposal attempts to treatment was not on either the first aid disagreed that defining first aid by oversimplify the recordkeeping process which will result in many insignificant or medical treatment lists (see, e.g., Exs. listing first aid treatments was 27; 15: 382, 392, 434). appropriate (see, e.g., Exs. 15: 18, 63, 83, injuries and illnesses being recorded because of the unnecessarily restrictive definitions for One commenter, the American 87, 96, 119, 123, 129, 145, 159, 171, 173, first aid and medical treatment. The Network of Community Options and 176, 182, 201, 225, 229, 247, 260, 262, definition and listing of first aid cannot be a Resources, supported the development 265, 272, 281, 303, 307, 308, 335, 337, comprehensive or exclusive listing and of a finite first aid list, but suggested 338, 341, 348, 349, 357, 364, 375, 380, definition. Medical treatment may be that OSHA define medical treatment as 382, 389, 396, 401, 413, 418, 430, 434). provided for insignificant injuries and ‘‘any treatment that requires Several of these commenters argued that significant injuries may receive little or no professional medical intervention’’ (Ex. it would not be possible to list every medical treatment. The medical treatment 15: 393, p. 8). first aid treatment (see, e.g., Exs. 15: process and options are too complicated to be A number of commenters agreed with adequately described by one list which 225, 335, 337, 396, 430). Some makes the treatments mutually exclusive. OSHA that the first aid definition commenters stated that the proposed OSHA should continue the current practice should focus on the type of treatment approach would not provide sufficient with lists for both first aid and medical given, and not on the provider (see, e.g., clarity, would involve a definition of treatment. Further, the treatments cannot be Exs. 15: 185, 308, 338, 349, 364, 443). medical treatment that was overly mutually exclusive since treatment does not Other comments argued that a vague, and would not be helpful to necessarily recognize the severity of the distinction between first aid and employers without additional injury or illness (Ex. 15: 201, p. 4). medical treatment could be made on the definitions (see, e.g., Exs. 15: 159, 171, Some commenters who disagreed basis of the number of times a particular 176, 229, 281, 348, 357, 396). Another with the proposed approach provided treatment had been given. The AFL–CIO group of commenters stated that the suggestions and alternative definitions. expressed a concern that, absent some
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consideration of the number of times a on the judgment of a health care the Agency’s reasons for including each treatment was administered, many professional, employers and health care item on the first aid list. serious injuries and illnesses would no professionals would inevitably interpret Final Rule longer be recordable and valuable data different cases differently, which would would be lost. The AFL–CIO stated that compromise the consistency of the data. The final rule, at § 1904.7(b)(5)(i), longer term treatments are more likely Under the system adopted in the final defines medical treatment as the than shorter ones to be indicative of rule, once the employer has decided management and care of a patient for medical treatment: that a particular response to a work- the purpose of combating disease or disorder. For the purposes of Part 1904, The proposed change in definition would related illness or injury is in fact seem to exclude cases where there are treatment, he or she can simply turn to medical treatment does not include: continued instances of the listed first aid the first aid list to determine, without (A) Visits to a physician or other licensed treatments from the recordkeeping elaborate analysis, whether the health care professional solely for requirements. Those conditions which treatment is first aid and thus not observation or counseling; require continued treatments, including recordable. OSHA finds that this simple (B) The conduct of diagnostic procedures, continued use of non-prescription drugs and approach, by providing clear, such as x-rays and blood tests, including the repeated cleaning, flushing or soaking of unambiguous guidance, will reduce administration of prescription medications wounds would no longer be recordable. The used solely for diagnostic purposes (e.g., eye AFL–CIO believes that first aid should be confusion for employers and improve drops to dilate pupils); or limited to one time treatments as is the the accuracy and consistency of the (C) ‘‘first aid’’ as defined in paragraph current practice, so that serious conditions data. (b)(5)(ii) of this section. which require multiple treatments are The need for clear and unambiguous The final rule, at paragraph (b)(5)(ii), recorded on the log. We strongly urge OSHA guidance is also OSHA’s reason for not defines first aid as follows: to maintain the definition of first aid in the considering treatments from the first aid current recordkeeping guidelines and to use list to be medical treatment if carried (A) Using a nonprescription medication at the listed conditions as examples of first aid. nonprescription strength (for medications (Ex. 15: 418). out for a lengthier time, as suggested by available in both prescription and non- the AFL–CIO. If an injured or ill Similarly, the TIMEC group of prescription form, a recommendation by a employee is given first-aid treatment, physician or other licensed health care companies believed that any one-time such as non-prescription medications professional to use a non-prescription treatment should be considered first aid, (at non-prescription strength), hot or medication at prescription strength is saying: cold therapy, massage therapy, or some considered medical treatment for It is also TIMEC’s perspective that the other treatment on the first aid list, the recordkeeping purposes). exclusion of a ‘‘one time medical treatment’’ treatment should not be considered (B) administering tetanus immunizations (other immunizations, such as hepatitis B provision from the list of first aids is unduly medical treatment for OSHA restrictive. Any condition that can be vaccine or rabies vaccine, are considered recordkeeping purposes, regardless of medical treatment). resolved or treated in one visit to the doctor the length of time or number of should be considered minimal or negligible (C) Cleaning, flushing or soaking wounds in the context of record keeping for industrial applications used. This approach will on the surface of the skin; injuries. Under the proposed regulation, a ensure that the recordkeeping system (D) Using wound coverings, such as excludes truly minor injuries and bandages, Band-Aids, gauze pads, etc.; or condition that results in a one time medical treatment theoretically could be given the illnesses, and capture the more serious using butterfly bandages or Steri-Strips same weight, in terms of OSHA recordability, cases that require treatment beyond first (other wound closing devices, such as as a broken or severed limb. This seems aid. sutures, staples, etc. are considered medical unduly restrictive. Further, it may inhibit treatment); In the final rule, OSHA has adopted (E) Using hot or cold therapy; some employers from taking injured the approach taken in the proposal, in employees to the doctor in the first instance, (F) Using any non-rigid means of support, in order to avoid a ‘‘OSHA recordable a slightly modified form. Under the final such as elastic bandages, wraps, non-rigid injury.’’ An employer may otherwise hope rule, employers will be able to rely on back belts, etc. (devices with rigid stays or that the matter will heal itself without a single list of 14 first aid treatments. other systems designed to immobilize parts infection. This seems contrary to the goal of These treatments will be considered of the body are considered medical treatment the Occupational Safety and Health Act, to first aid whether they are provided by for recordkeeping purposes); ensure appropriate and prompt medical a lay person or a licensed health care (G) Using temporary immobilization devices while transporting an accident victim treatment and safety services to employees professional. However, the final rule (Ex. 15: 18, p. 2). (e.g. splints, slings, neck collars, back boards, includes the following definition of etc.) In response to these comments and medical treatment; ‘‘management and (H) Drilling of a fingernail or toenail to the evidence in the record of this care of a patient for the purpose of relieve pressure, or draining fluid from a rulemaking, the final rule essentially combating disease or disorder;’’ this blister; continues the proposed approach, i.e., it definition excludes observation and (I) Using eye patches; includes a list of first-aid treatments that counseling, diagnostic procedures, and (J) Removing foreign bodies from the eye is inclusive, and defines as medical the listed first aid items. OSHA believes using only irrigation or a cotton swab; treatment any treatment not on that list. that providing a definition of medical (K) Removing splinters or foreign material from areas other than the eye by irrigation, OSHA recognizes, as several treatment for recordkeeping purposes tweezers, cotton swabs, or other simple commenters pointed out, that no one will help employers who are uncertain means; can predict how medical care will about what constitutes medical (L) Using finger guards; change in the future. However, using a treatment. OSHA will also provide (M) Using massages (physical therapy or finite list of first aid treatments— examples of medical treatments covered chiropractic treatment are considered knowing that it may have to be amended by this definition in compliance medical treatment for recordkeeping later based on new information—helps assistance documents designed to help purposes); to limit the need for individual smaller businesses comply with the (N) Drinking fluids for relief of heat stress. judgment about what constitutes first rule. The following discussion describes This list of first aid treatments is aid treatment. If OSHA adopted a more the definitions of first aid and medical comprehensive, i.e., any treatment not open-ended definition or one that relied treatment in the final rule and explains included on this list is not considered
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first aid for OSHA recordkeeping medical treatment made in the Act was incident stress debriefing) counseling’’ purposes. OSHA considers the listed meant to ensure that all occupational (Ex. 15: 226, p. 3). The AAA treatments to be first aid regardless of injuries and illnesses that were other recommended that OSHA add the professional qualifications of the than minor be captured by OSHA’s preventive counseling, such as critical person providing the treatment; even recordkeeping system but that minor incident stress debriefing, to the first aid when these treatments are provided by conditions not be recorded (see, e.g., listing. a physician, nurse, or other health care Exs. 15–308, 375A, p. 7). As the OSHA agrees that counseling should professional, they are considered first American Petroleum Institute not be considered medical treatment aid for recordkeeping purposes. commented (Ex. 375A), ‘‘***the and has expressly excluded it from the The definition of medical treatment in fundamental issue is the seriousness of definition of medical treatment. the final rule differs both from the the injury or illness, not the treatment.’’ Counseling is often provided to large definition used in the former rule OSHA concludes, based on its review of groups of workers who have been (‘‘treatment administered by a physician the record, that the final rule’s exposed to potentially traumatic events. or by registered professional personnel definitions of medical treatment and Counseling may be provided on a short- under the standing orders of a first aid will work together to achieve term basis by either a licensed health physician’’) and the proposed definition Congress’s intent, as specified in care professional or an unlicensed (‘‘medical treatment includes any sections 8 and 24 of the Act. person with limited training. OSHA medical care or treatment beyond first In making its decisions about the believes that capturing cases where aid’’). The medical treatment definition items to be included on the list of first counseling was the only treatment in the final rule is taken from Dorland’s aid treatments, OSHA relied on its provided do not rise to the level of Illustrated Medical Dictionary, and is experience with the former rule, the recording; other counseling cases, where thus consistent with usage in the advice of the Agency’s occupational prescription medications, days away medical community. medicine and occupational nursing from work, or restricted work activity is The three listed exclusions from the staff, and a thorough review of the involved, would be captured under definition—visits to a health care record comments. In general, first aid those criteria. professional solely for observation or treatment can be distinguished from The Brookhaven National Laboratory counseling; diagnostic procedures, medical treatment as follows: recommended that the first aid list including prescribing or administering • First aid is usually administered include any return visit to evaluate of prescription medications used solely after the injury or illness occurs and at diagnostic decisions (Ex. 15: 163). for diagnostic purposes; and procedures the location (e.g., workplace) where the Caterpillar, Inc. suggested that visits for defined in the final rule as first aid— injury or illness occurred. observation, testing or diagnosis of clarify the applicability of the definition • First aid generally consists of one- injuries should also be considered first and are designed to help employers in time or short-term treatment. aid (Ex. 15: 201). The Chemical their determinations of recordability. • First aid treatments are usually Manufacturers Association and OSHA received several comments on simple and require little or no Marathon Oil Company encouraged the proposed definition of medical technology. OSHA to add visits to the hospital for treatment. These dealt primarily with • First aid can be administered by observation to the first-aid list (Exs. 15: the general approach OSHA was people with little training (beyond first 308, 310) proposing, i.e., the use of an all- aid training) and even by the injured or OSHA generally agrees with these inclusive list of first aid applications, ill person. commenters. OSHA believes that visits and defining any treatment not on the • First aid is usually administered to to a health care professional for list as medical treatment. The remaining keep the condition from worsening, observation, testing, diagnosis, or to comments (see, e.g., Exs. 15: 87, 171, while the injured or ill person is evaluate diagnostic decisions should be 173, 176, 182, 229, 247, 260, 262, 265, awaiting medical treatment. excluded from the definition of medical 272, 303, 307, 357, 338, 375, 382, 396, The final rule’s list of treatments treatment in the final rule. Visits to a 401, 413) urged OSHA to develop an all- considered first aid is based on the hospital, clinic, emergency room, inclusive list of medical treatments, to record of the rulemaking, OSHA’s physician’s office or other facility for provide examples of some medical experience in implementing the the purpose of seeking the advice of a treatments, or to provide a non- recordkeeping rule since 1986, a review health care professional do not mandatory appendix with such of the BLS Recordkeeping Guidelines, themselves constitute treatment. OSHA examples. letters of interpretation, and the believes that visits to a hospital for OSHA has not adopted the professional judgment of the Agency’s observation or counseling are not, of suggestions made by these commenters occupational physicians and nurses. and by themselves, medical treatment. because the Agency finds that simplicity Accordingly, the final rule excludes and clarity are best served by adopting Specific Items on the Proposed First Aid these activities from the definition of a single, all-inclusive first aid list and List in the NPRM medical treatment. explicitly stating that any treatment not Item 1 listed in the NPRM definition Item 2 listed in the NPRM definition on the list is considered, for of first aid was ‘‘Visit(s) to a health care of first aid was ‘‘Diagnostic procedures, recordkeeping purposes, to be medical provider limited to observation.’’ Two including the use of prescription treatment. Employers will thus be clear commenters raised the issue of medications solely for diagnostic that any condition that is treated, or that counseling with regard to the recording purposes (e.g. eye drops to dilate should have been treated, with a of mental disorders (Exs. 15: 226, 395). pupils).’’ Several commenters believed treatment not on the first aid list is a The American Ambulance Association that diagnostic procedures such as x- recordable injury or illness for (AAA) stated that: ‘‘This is and should rays and blood tests should not be recordkeeping purposes. be considered preventive treatment considered medical treatment (see, e.g., This simplified approach addresses aimed at preventing stress-related Exs. 15: 176, 301, 347, 349, 375, 443). the concerns expressed by several illnesses. OSHA’s adoption of such a For example, General Electric (GE) commenters, who emphasized that the policy will allow and encourage stated ‘‘Diagnostic tests should not be distinction between first aid and employers to provide CISD (critical considered medical treatment.
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Considering a diagnostic test to be a consider some uses of prescription ‘‘Treatment for bee stings should be recordable injury without consideration drugs to be first aid treatment (see, e.g., addressed (perhaps listed on the First of the test results is illogical and will Exs. 15: 13, 60, 147, 159, 201, 218, 225, Aid list). For instance, if a doctor establish a disincentive to test. GE’s 246, 247, 297, 308, 332, 335, 336, 348, administers the same treatment that an position is that a definition of medical 349, 359, 374, 375, 386, 387, 395, 405, employee could have administered treatment should also be included in the 414, 430, 434). The most common themselves it should not be considered proposed regulation. Proposed wording reason given by commenters for treating medical treatment’’ (Ex. 15: 247). is as follows: ‘‘Medical treatment’’ some prescription drugs as first aid was Another set of comments suggested includes any medical care or treatment their use when they were given for that prescription medications should be beyond ‘‘first aid’’ and does not include preventive rather than therapeutic considered first aid if they were used diagnostic procedures.’’ intervention. Several commenters asked only once or for a limited period of Two commenters opposed the for a broad exception from medical time. A number of comments requested exclusion of diagnostic procedures. The treatment for prescription drugs taken that OSHA continue to treat a single National Institute for Occupational for preventive or prophylactic purposes dose of prescription medication as first Safety and Health (NIOSH) said ‘‘the (see, e.g., Exs. 55X 15: 247, 336, 375, aid. (see, e.g., Exs. 15: 201, 332, 348, term diagnostic procedures’’ in item #2 395). For example, the American Iron 349, 359, 374, 386, 387, 405, 430, 434). is too broad, and the example given is and Steel Institute stated ‘‘AISI Typical of these comments was one vague. These procedures should not be encourages OSHA to make one change: from the National Safety Council: considered first aid’’ (Ex. 15: 407, p. 17). add the use of prescription medications [t]hat administration of a single dose of The United Steelworkers of America for prophylactic reasons to the first aid prescription medication on first visit for stated ‘‘ * * * delete the use of list. In many instances, a health care minor injury or discomfort remain first aid. prescription drugs for diagnostic professional will prescribe antibiotics as For example, minor muscle aches and pains purposes. This will be abused by the a precaution against a possible may occasionally be eased with a single dose company’’ (Ex. 15: 429). infection. An employer should not be of 800 mg ibuprofen. This is currently OSHA disagrees with NIOSH that the required to record a minor injury solely considered first aid and should remain so. exclusion for diagnostic procedures is because a health care professional opted Another example would be the treatment of overly vague. It is the experience of the to respond aggressively’’ (Exs. 15: 395; first degree burns. This is currently Agency that employers generally 55X). considered first aid treatment, even though understand the difference between Several commenters asked for an treatment frequently involves the application procedures used to combat an injury or of a single dose of prescription-strength exception from the medical treatment ointment. (Ex.15: 359, p. 12) illness and those used to diagnose or for antibiotics and antiseptics (see, e.g., assess an injury or illness. In the event Exs. 15: 218, 246, 332, 349, 375, 395, Other commenters suggested that that the employer does not have this 414, 430). Raytheon Constructors, Inc. prescription medications used for 24 knowledge, he or she may contact the commented: ‘‘We believe the following hours, 48 hours, or five days be health care professional to obtain help treatments should be added [to the first considered first aid (see, e.g., Exs. 15: with this decision. If the employer does aid list]: Application of antiseptics, as 159, 246, 297, 308, 335, 375). not have this knowledge, and elects not often as needed. This is for prevention In the final rule, OSHA has not to contact the health care professional, of infection after an injury. Infection is included prescription medications, OSHA would expect the employer to not caused by the work environment. whether given once or over a longer refer to the first aid list and, if the Treatment for an infection, such as period of time, in the list of first aid procedure is not on the list, to presume prescription drugs. Again, infection is treatments. The Agency believes that the that the procedure is medical treatment not the result of the work environment’’ use of prescription medications is not and record the case. OSHA also does not (Ex. 15: 414). first aid because prescription believe that this provision will be A number of employers asked OSHA medications are powerful substances subject to abuse, because the procedures to define the use of prescription drugs that can only be prescribed by a used for diagnosis are generally quite for comfort, or to relieve pain or licensed health care professional, and different from those involving inflammation, as first aid (see, e.g., Exs. for the majority of medications in the treatment. 15: 60, 147, 201, 225, 247, 308, 348, majority of states, by a licensed OSHA agrees with those commenters 349). The American Gas Association physician. The availability of these who recommended the exclusion of stated that: we propose that substances is carefully controlled and diagnostic procedures from the ‘prescription medications for comfort’ limited because they must be prescribed definition of medical treatment. be added to the list. Medical and administered by a highly trained Diagnostic procedures are used to practitioners frequently ‘‘prescribe and knowledgeable professional, can determine whether or not an injury or drugs to comfort people after an injury’’ have detrimental side effects, and illness exists, and do not encompass (Ex. 15: 225), and the Proctor and should not be self-administered. therapeutic treatment of the patient. Gamble Company stated ‘‘[p]rescription Some commenters asked whether a OSHA has included such procedures on medication to prevent complications or case where a prescription was written the first aid list in the final rule with reduce pain should not be a sole basis by a physician and given to the injured two examples of diagnostic procedures for recording injuries and illnesses. It is or ill employee but was not actually to help reduce confusion about the our view that preventive measures or filled or taken would be recordable. In types of procedures that are excluded. action taken to reduce pain should not some instances the employee, for Item 3 listed in the NPRM definition in themselves be the basis for religious or other reasons, refuses to fill of first aid was ‘‘Use of nonprescription recording’’ (Ex. 15: 147). Entergy the prescription and take the medicine. medications, including antiseptics.’’ Services Inc. suggested that OSHA In other cases, the prescriptions are This issue received a large number of include Benadryl shots as first aid since issued on a ‘‘take-as-needed’’ basis. In comments, more than any other issue they are often given to prevent allergic these cases, the health care professional related to the proposed definition of reactions to insect bites and poison oak/ gives the patient a prescription, often for medical treatment and first aid. Most of ivy/sumac (Ex. 15: 13). The Arizona pain medication, and tells the patient to the comments requested that OSHA Public Service Company remarked: fill and take the prescription if he or she
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needs pain relief. OSHA’s long-standing anti-inflammatory drugs (NSAIDs), such nonprescription strengths, such as policy has been that if a prescription of as ibuprofen, and cortisone creams. ibuprofen, and is used or recommended this type has been issued, medical OSHA’s policy has been that if these for use by a physician or other licensed treatment has been provided and the drugs are used in the over-the-counter health care professional at prescription case must therefore be recorded. form they are first aid, but if they are strength, the medical treatment criterion Numerous commenters asked OSHA to used in prescription form, they are is met and the case must be recorded. reverse or clarify its policy and consider medical treatment. Some commenters There is no reason for one case to be these prescriptions to be first aid in the stated that these drugs should always be recorded and another not to be recorded final rule (see, e.g., Exs. 15: 13, 105, 247, considered first aid (see, e.g., Exs. 15: simply because one physician issued a 260, 262, 279, 281, 295, 300, 308, 359, 300, 308, 414). For example, Heritage prescription and another told the 362, 386, 414). For example, the Environmental Services, Inc. stated: employee to use the same medication at National Safety Council requested that While the proposed rule includes the use prescription strength but to obtain it ‘‘OSHA should specify whether the of non-prescription medications in the over the counter. Both cases received treatment must actually be given or definition of first aid, it fails to address the equal treatment and should be recorded merely be appropriate or normal for the use of prescription quantities of over-the- equally. This relatively small change in injury or illness. For example, is counter medications (i.e., Tylenol, Motrin). It the recordkeeping rule will improve the medical treatment given when a has been Heritage’s experience that the consistency and accuracy of the data on prescription is written or when it is requirement of the current rule to record occupational injuries and illnesses and cases where physicians have prescribed over filled or when it is taken by the the counter medications has resulted in the simplify the system as well. employee’’ (Ex. 15: 359). inclusion of a broad range of minor cases, Two commenters asked OSHA to add OSHA has decided to retain its long- that in all other respects would not have been non-prescription ointments to item 3 on standing policy of requiring the recordable. In working with occupational the first aid list (Exs. 15: 308, 443). The recording of cases in which a health health care providers for many years, final rule simply lists non-prescription care professional issues a prescription, Heritage has found that frequently, medications, and expects non- whether that prescription is filled or physicians prescribe prescription quantities prescription medications to be included taken or not. The patient’s acceptance or of over the counter medications for reasons regardless of form. Therefore, non- refusal of the treatment does not alter other than the severity of the injury. Many prescription medicines at non- physicians are unaware that the distribution the fact that, in the health care of OTC medications in such a manner results prescription strength, whether in professional’s judgment, the case in an OSHA recordable injury/illness.* * * ointment, cream, pill, liquid, spray, or warrants medical treatment. In addition, Heritage strongly favors the inclusion of a any other form are considered first aid. a rule that relied on whether a statement within the definition of first aid OSHA has also removed antiseptics prescription is filled or taken, rather that eliminates the need to record cases from the description of non-prescription than on whether the medicine was where the sole reason for the recording of the medications. Following the same logic prescribed, would create administrative case is the administration of prescription used for ointments, there is no need to difficulties for employers, because such quantities of over-the-counter medications. list the variety of possible uses of non- (Ex. 15: 300) a rule would mean that the employer prescription medications. Non- would have to investigate whether a Other commenters stated that the use prescription medicines are first aid given prescription had been filled or the of nonprescription medications should regardless of the way in which they are medicine had actually been taken. be considered medical treatment if they used. Finally, many employers and employees are used at prescription strength (Ex. 15: Item 4 listed in the NPRM definition might well consider an employer’s 279) or that the continued use of non- of first aid was ‘‘Simple administration inquiry about the filling of a prescription drugs, especially anti- of oxygen.’’ Some commenters agreed prescription an invasion of the inflammatory drugs, should be with OSHA’s proposal to define the employee’s privacy. For these reasons, considered medical treatment (see, e.g., giving of oxygen as first aid (see, e.g., the final rule continues OSHA’s Exs. 15: 362, 371, 380, 418). The Union Exs. 15: 34, 74, 78, 201, 281, 378, 414). longstanding policy of considering the of Needletrades, Industrial and Textile Several commenters, however, asked giving of a prescription medical Employees (UNITE) stated that ‘‘the self- OSHA to provide more guidance as to treatment. It departs from former administration of medication, when what qualified as the ‘‘simple’’ practice with regard to the used on a recurring basis, should trigger administration of oxygen (see, e.g., Exs. administration of a single dose of a the recording of cases’’ (Ex. 15: 380), 15: 13, 170, 188, 229, 260, 262, 265, 272, prescription medicine, however, and the United Food and Commercial 303, 374, 401, 405), while others because there is no medical reason for Workers Union, pointed out that ‘‘When suggested alternatives that would make differentiating medical treatment from the employee reports pain that has some uses of oxygen first aid and other first aid on the basis of the number of lasted for over a week, they are given uses medical treatment. The American doses involved. This is particularly well over-the-counter medication for as long Petroleum Institute recommended: illustrated by the recent trend toward as they ask. These cases, which can go ‘‘Simple oxygen administration is giving a single large dose of antibiotics on for a month or longer, are never standard operating procedure for EMTs instead of the more traditional pattern recorded’’ (Ex. 15: 371). and should remain first aid. Oxygen involving several smaller doses given One commenter suggested that health therapy, if prescribed, should be over several days. care professionals might prescribe over- considered medical treatment’’ (15: Yet another issue raised by the-counter medications rather than 375). A group of utilities said ‘‘Simple commenters about medications involved prescription medications for economic administration of oxygen should be the use of non-prescription medications reasons (Ex. 15: 279). defined to include the preventive at prescription strength. In recent years, The final rule does not consider the aspects following an injury. This would many drugs have been made available prescribing of non-prescription include, for example, administration at both as prescription and ‘‘over-the- medications, such as aspirin or over-the- the pre-hospital site or while in the counter’’ medications, depending on the counter skin creams, as medical emergency room or hospital for strength or dosage of the product. Some treatment. However, if the drug is one observation. Identifying oxygen examples include various non-steroidal that is available both in prescription and administration in this manner would
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eliminate the need to identify which of considered first aid by OSHA for some to a worker routinely to maintain the the more advanced uses of oxygen time when they are administered required level of immunity to the should be considered as medical routinely, i.e., in the absence of an tetanus bacillus. These immunizations treatment’’ (see, e.g., Exs. 15: 260, 262, injury or illness (see the Recordkeeping are thus based not on the severity of the 265, 401). Guidelines (Ex. 2, p. 43)). Several injury but on the length of time since A number of commenters opposed the commenters expressed their support for the worker has last been immunized. inclusion of oxygen as a first aid continuing to include tetanus and The issue of whether or not treatment (see, e.g., Exs. 15: 9, 87, 156, diphtheria shots and boosters as first aid immunizations and inoculations are 290, 350, 395, 415, 429). The American (see, e.g., Exs. 15: 197, 201, 218, 247, first aid or medical treatment is Red Cross stated: 302, 308, 348, 385, 386, 393). Bell irrelevant for recordkeeping purposes The simple administration of oxygen * * * Atlantic commented that ‘‘Bell Atlantic unless a work-related injury or illness is inappropriately considered first aid. supports the proposed inclusion of has occurred. Immunizations and Simple administration of oxygen is not so tetanus/diphtheria shots on the first aid inoculations that are provided for public simple. If oxygen is administered to someone list. Such preventative actions should health or other purposes, where there is with chronic pulmonary disease (a medical not be considered medical treatment’’ no work-related injury or illness, are not condition not generally recognized by (Ex. 15: 218). One commenter, first aid or medical treatment, and do untrained individuals), the victim could die. Countrymark Cooperative, Inc., agreed Carbon dioxide build-up in the blood forces not in themselves make the case an individual with this condition to breathe; that tetanus shots or boosters should be recordable. However, when inoculations therefore, administration of oxygen would considered first aid, but did not believe such as gamma globulin, rabies, etc. are obstruct the involuntary breathing action, diphtheria shots or boosters should be given to treat a specific injury or illness, resulting in pulmonary arrest. Red Cross (Ex. 15: 9). or in response to workplace exposure, would argue that no administration of oxygen Two commenters recommended that medical treatment has been rendered is ‘‘simple’’ (Ex. 15: 290). tetanus and diphtheria shots be and the case must be recorded. The The United Brotherhood of Carpenters considered medical treatment, whether following example illustrates the Health & Safety Fund of North America or not they are administered in distinction OSHA is making about (USC H&SF) remarked, ‘‘[w]e urge that connection with a work-related injury or inoculations and immunizations: if a OSHA remove the simple illness. The American Red Cross stated, health care worker is given a hepatitis administration of oxygen from first aid ‘‘inappropriately considered * * * B shot when he or she is first hired, the treatment. This procedure requires administration of diphtheria and tetanus action is considered first aid and the considerable training above what is shots or boosters cannot be performed case would not be recordable; on the recognized as First Aid by either the without a prescription from a physician. other hand, if the same health care Red Cross’s or National Safety Council’s The person administering the shots worker has been occupationally exposed First Aid training courses’’ (Ex. 15: 350). must also be cognizant of potential side to a splash of potentially contaminated The Muscatine Iowa Chamber of effects, i.e., anaphylactic shock, which blood and a hepatitis B shot is Commerce Safety Committee added: can result from such an action, and be administered as prophylaxis, the shot prepared to address them’’ (Ex. 15: 290). We feel that oxygen administration, as a constitutes medical treatment and the The International Brotherhood of case is recordable. first aid treatment would extend beyond the Teamsters added ‘‘International intent of the standards. The training and Item 6 listed in the NPRM definition equipment requirements for the delivery of Brotherhood of Teamsters encourages of first aid was ‘‘cleaning, flushing or oxygen are extensive and beyond the simple OSHA to discontinue tetanus and soaking wounds on skin surface.’’ first aid kits. We believe that the delivery of diphtheria booster shots as first aid. OSHA received only one specific even the most minimal amount of oxygen They should be considered medical comment on this item. The American constitutes an advanced level of care to an treatment. They are usually Federation of State, County, and employee. All oxygen administration should administered both after exposure and be considered as medical treatment, no Municipal Employees (AFSCME) before diagnosis. The International commented: ‘‘Cleaning, flushing or matter how delivered or how much is used, Brotherhood of Teamsters considers it for whatever the reason’’ (Ex. 15: 87, p. 4). soaking wounds on skin surfaces. This similar to the prophylaxis medical is the initial treatment for needle stick OSHA is persuaded by the views of treatment given after exposure to injuries. AFSCME requests that OSHA the Red Cross and others, which point Hepatitis B Virus’’ (Ex. 15: 369). to the potential complexities and A number of commenters clarify its position that cleaning, consequences of the administration of recommended the addition to the first flushing or soaking of sharps injuries is oxygen. Accordingly, the Agency has aid list of other immunizations, considered a medical treatment’’ (Ex. decided to remove the use of oxygen including gamma globulin; vaccines for 15: 362). from the first aid list and to consider hepatitis B, hepatitis C, and rabies; or The AFL–CIO disagreed with OSHA’s any use of oxygen medical treatment. other prophylactic immunizations (see, proposed approach to skin surface Oxygen administration is a treatment e.g., Exs. 15: 197, 201, 218, 302, 308, wounds, based on the belief that that can only be provided by trained 347, 348, 386). Caterpillar, Inc. valuable information about serious medical personnel, uses relatively recommended, ‘‘[c]learly exclude any work-related injuries would be lost if complex technology, and is used to treat immunizations and inoculations which the approach were adopted: serious injuries and illnesses. The use of are preventative in nature. The proposed change in definition would any artificial respiration technology, Immunizations and inoculations are not seem to exclude cases where there are such as Intermittent Positive Pressure usually provided in response to a continued instances of the listed first aid Breathing (IPPB), would also clearly be specific injury or illness and should be treatments from the recordkeeping requirements. Those conditions which considered medical treatment under the excluded from OSHA records’’ (Ex. 15: require continued treatments, including final rule. 201). continued use of non-prescription drugs and Item 5 listed in the NPRM definition In the final rule, tetanus repeated cleaning, flushing or soaking of of first aid was ‘‘administration of immunizations are included as item B wounds would no longer be recordable. The tetanus or diphtheria shot(s) or on the first aid list. These AFL–CIO believes that first aid should be booster(s).’’ These treatments have been immunizations are often administered limited to one time treatments as is the
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current practice, so that serious conditions Steri-stripTM was not applied in lieu of their purpose or intent. If the medical which require multiple treatments are sutures. Often medical care providers professional decides stitches or sutures recorded on the log. We strongly urge OSHA use a Steri-stripTM rather than a are necessary and proper for the given to maintain the definition of first aid in the current recordkeeping guidelines and to use bandage, even though the injury does injury, they are medical treatment. the listed conditions as examples of first aid not require closure of any type’’ (Ex. 15: Because OSHA has decided not to (Ex. 15: 418). 405). include a list of medical treatments in These treatments were listed in the the final rule, there is no need to OSHA believes that cleaning, flushing 1986 Recordkeeping Guidelines as or soaking of wounds on the skin articulate that the use of other wound medical treatment when applied ‘‘in surface is the initial emergency closing devices, such as surgical staples, lieu of sutures’’ (Ex. 2, p. 43). In the treatment for almost all surface wounds tapes, glues or other means are medical past, this provision in the Guidelines and that these procedures do not rise to treatment. Because they are not has been the subject of several letters of the level of medical treatment. This included on the first aid list, they are by relatively simple type of treatment does interpretation. For example, in a 1993 definition medical treatment. not require technology, training, or even letter from Ms. Monica Verros, R.N., Item 8 listed in the proposed a visit to a health care professional. C.O.H.N, of the IBP company, Ms. definition of first aid was ‘‘[u]se of any More serious wounds will be captured Verros asked, ‘‘[a]re all applications of hot/cold therapy (e.g. compresses, as recordable cases because they will butterfly adhesive dressing(s) and Steri- soaking, whirlpools, non prescription meet other recording criteria, such as strip(s) considered medical treatment?’’ skin creams/lotions for local relief, etc.) prescription medications, sutures, OSHA’s answer was simply ‘‘yes’’ (Ex. except for musculoskeletal disorders’’ restricted work, or days away from 70: 136). (61 FR 4059). The Recordkeeping work. Therefore, OSHA has included OSHA agrees with the commenters Guidelines defined heat therapy, hot or cleaning, flushing or soaking of wounds who suggested that these devices be cold therapy compresses or soaking on the skin surface as an item on the considered first aid treatment. They are therapy, or whirlpool bath therapy on a first aid list. As stated previously, included in item D of the first aid list. second or subsequent visit to be medical OSHA does not believe that multiple Steri strips and butterfly bandages are treatment (Ex. 2, p. 43). OSHA has applications of first aid should relatively simple and require little or no restated this guidance in numerous constitute medical treatment; it is the training to apply, and thus are letters of interpretation, most of them nature of the treatment, not how many appropriately considered first aid. related to the issue of the recording of times it is applied, that determines Two commenters also raised the issue musculoskeletal disorders (MSDs). whether it is first aid or medical of whether or not sutures or stitches A number of commenters treatment. should be considered first aid (Exs. 15: recommended that hot or cold therapy Item 7 listed in the NPRM definition 229, 348). The National Pest Control be defined as first aid regardless of the of first aid was ‘‘Use of wound Association (NPCA) stated: number of times it is administered or coverings, such as bandages, gauze NPCA believes cuts requiring five or less the type of condition for which it is pads, etc.’’ These treatments were external stitches should also be categorized used (see, e.g., Exs. 15: 39, 45, 95, 109, considered first aid treatments by the as first aid as well unless the employee has 156, 163, 199, 201, 218, 246, 308, 347, Recordkeeping Guidelines (Ex. 2, p. 43). to go back to the medical provider because 348, 359, 386, 414, 430, 443). Several of OSHA received no comments opposing of the cut or there are more than five external the comments cited consistency as an stitches. Some of the examples the agency the proposed definition of wound issue (see, e.g., Exs. 15: 39, 109, 347, has included in its list of first aid, such as 348, 430). For example, the Dupont coverings as first aid. However, the drilling of a nail to relieve pressure for issue of whether or not butterfly subungual hematoma and removal of Company stated that ‘‘Item 8 on the bandages and Steri-stripsTM are first aid splinters or foreign material from areas other ‘First Aid Treatment’ list considers the was raised. Steri-stripsTM are a product than eyes by irrigation, tweezers, cotton, same treatment as either first aid or of the 3M Company, which advertises swabs or other simple means, seems to be medical treatment depending on the them as a comfortable adhesive strip comparable to cuts requiring a minimal condition for which it is applied. The used to secure, close and support small amount of stitches. Therefore, we believe it treatment is used for reduction of cuts, wounds and surgical incisions. should be added to the list (Ex. 15: 229, p. swelling and discomfort. The condition 4). ‘‘Butterfly bandages’’ is a generic term for which it is used should not matter. used for similar adhesive strips The Dupont Company suggested: * * * Exclude the ‘except for designed for small wounds. ‘‘Expand the ‘suture’ category to say that musculoskeletal disorders * * *’ clause All of the commenters who raised the any device used for closure for from item 8 (Ex. 15: 348, p. 9). issue suggested that OSHA add Steri- therapeutic reasons is an automatic Another issue raised was that hot and strips and butterfly bandages to this first MTC (medical treatment case). Leeway cold treatments do not require special aid item (see, e.g., Exs. 15: 45, 108, 163, should be given for when a care training (Ex. 15: 414). For example, 201, 247, 308, 332, 349, 387, 405). Some provider gives ‘unnecessary’ treatment, Raytheon Constructors stated ‘‘[w]e commenters believed that the use of for example, sutures for cosmetic believe the following treatments should Steri-stripsTM and butterfly bandages reasons instead of for therapeutic be added: Soaking, whirlpool and hot/ should always be considered first aid closure, where the doctor provides the cold therapy with no limit on the (see, e.g., Exs. 15: 45, 247, 332, 349, documentation’’ (Ex. 15: 348). number of times. Many physicians 387), while others believed they should OSHA believes that including sutures choose this conservative treatment, be considered medical treatment only or stitches in the first aid list would not plus, any first aid trained person and/ when used as a replacement for, or in be appropriate. Performing these or the injured person can do this’’ (Ex. lieu of, sutures (see, e.g., Exs. 15: 108, procedures requires substantial medical 15: 414). Other commenters stated that 163, 201, 308, 405). The Westinghouse training, and they are used only for serious musculoskeletal disorders Electric Corporation stated, ‘‘Steri-strips more serious wounds and are generally would be captured more consistently by should be added to the list of first-aid considered to go beyond first aid. OSHA other recording criteria (see, e.g., Exs. treatments, when determined by the has also decided not to provide 15: 199, 347). The Ford Motor Company attending medical provider that the exclusions for first aid items based on stated:
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We have a major disagreement with the treatment); restricted work; or days while the worker is being transported to proposed rule that the use of any hot or cold away from work. Therefore, there is no a medical care facility (see, e.g., Exs. 15: therapy is first aid, except for need to consider hot and cold therapy 290, 347, 434). The Ford Motor musculoskeletal disorders. The use of hot or to be medical treatment, in and of itself. Company remarked, ‘‘[t]he first aid list cold therapy should always be considered first aid. If an individual has a significant or Considering hot and cold therapy to be should be expanded to include the use serious musculoskeletal disorder, it would first aid also clarifies and simplifies the of any partially or totally rigid require prescription medicine, restriction of rule, because it means that employers immobilizing means of support when work or motion, transfer to another job, a day will not need to consider whether to used solely for the purpose of away from work, or medical treatment. record when an employee uses hot or immobilization during initial transport Considering hot or cold therapy to always be cold therapy without the direction or for medical evaluation. For example, the first aid simplifies the system, reduces guidance of a physician or other use of a back board, stiff neck collar, or confusion, and does not discourage licensed health care professional. air splint’’ (Ex. 15: 347). The American practitioners from using hot or cold therapy Item 9 listed in the NPRM definition Red Cross added: for minor or insignificant musculoskeletal of first aid was ‘‘[u]se of any totally non- disorders. If all musculoskeletal disorders While Red Cross would agree that this is which include two or more applications of rigid, non-immobilizing means of ‘‘first aid,’’ it is unclear whether OSHA hot or cold therapy as directed by a health support (e.g. elastic bandages).’’ The intends for use of rigid support to be care provider are recordable, the data on proposal reflected OSHA’s guidance to considered ‘‘medical treatment.’’ In most musculoskeletal disorders will be absolutely employers under past interpretations. traditional first aid classes, including those useless (Ex. 15: 347). The Recordkeeping Guidelines defined taught by Red Cross, students are taught that if, for example, a victim has broken a bone, Several commenters believed that first aid treatment as ‘‘use of elastic bandage(s) during first visit to medical any rigid means of support that would multiple hot or cold treatments should immobilize the limb until further medical be considered medical treatment (see, personnel’’ (Ex. 2, p. 43). The care can be obtained should be utilized. e.g., Exs. 15: 371, 418). The AFL–CIO Guidelines do not provide specific Examples of rigid support include disagreed with OSHA’s proposal; it guidance on the use of other types of newspapers, magazines, sticks, boards, recommended that multiple treatments orthopedic devices such as splints, splints, etc., anything that is available to of all types be considered medical casts, or braces. In response to requests prevent further injury. This action may be from the public to clarify the issue of performed by anyone who has been trained treatment, based on the belief that in first aid, and Red Cross does not believe valuable information about serious which devices are medical treatment and which are first aid treatment, OSHA that ‘‘rigidity’’ is the appropriate work-related injuries would otherwise qualification to consider this action ‘‘medical be lost. The AFL–CIO said: issued several letters of interpretation treatment’’ (15: 290). stating that the use of wraps or non- The proposed change in definition would constraining devices such as wristlets, The General Electric Corporation (GE) seem to exclude cases where there are tennis elbow bands or elastic bandages recommended that OSHA rely, not on continued instances of the listed first aid the design of the device but on whether treatments from the recordkeeping are first aid treatment, regardless of how long or how often they are used. The use or not the device resulted in restricted requirements. * * * The AFL–CIO believes activity. GE recommended ‘‘the that first aid should be limited to one time of casts, splints, or orthopedic devices treatments as is the current practice, so that designed to immobilize a body part to following additions to the list: Use of serious conditions which require multiple permit it to rest and recover is rigid or non-rigid immobilization treatments are recorded on the log. We considered medical treatment. devices, if they don’t result in restricted strongly urge OSHA to maintain the Generally, orthopedic devices used for activity, e.g. wrist braces, finger splints, definition of first aid in the current immobilization are made rigid, in whole immobilization for transport’’ (Ex. 15: recordkeeping guidelines and to use the or in part, through the use of stays or 349). listed conditions as examples of first aid (15: non-bending supports (see, e.g., Exs. 70: OSHA has included two items related 418). 40, 158). to orthopedic devices in the final The Tosco Corporation proposed an OSHA received several comments definition of first aid. Item F includes alternative, recommending that hot/cold recommending that it provide ‘‘[u]sing any non-rigid means of treatments for musculoskeletal disorders additional clarification of this issue (see, support, such as elastic bandages, be considered first aid for the first four e.g., Exs. 15: 176, 290). Several wraps, non-rigid back belts, etc. (devices treatments (Ex. 15: 246). commenters suggested that OSHA with rigid stays or other systems In the final rule, OSHA has included include wrist splints as first aid, on the designed to immobilize parts of the hot and cold treatment as first aid grounds that wrist splints are used as a body are considered medical treatment treatment, regardless of the number of prophylactic treatment (see, e.g., Exs. for recordkeeping purposes).’’ OSHA times it is applied, where it is applied, 15: 332, 349, 386, 387). Other has included more examples of the or the injury or illness to which it is commenters recommended that finger devices (wraps and non-rigid back belts) applied. The Agency has decided that splints be considered first aid (see, e.g., to help make the definition clearer. hot or cold therapy must be defined as Exs. 15: 201, 349, 386). The Caterpillar However, OSHA believes that the use of either first aid or medical treatment Company suggested that OSHA orthopedic devices such as splints or regardless of the condition being ‘‘[e]xpand item 9 to include rigid finger casts should be considered medical treated, a decision that departs from the splints, which are used only to prevent treatment and not first aid. They are proposal. It is OSHA’s judgment that hot further injury or to maintain the typically prescribed by licensed health and cold treatment is simple to apply, cleanliness of finger lacerations and care professionals for long term use, are does not require special training, and is other minor wounds, rather than as part typically used for serious injuries and rarely used as the only treatment for any of the required medical treatment. Only illnesses, and are beyond the everyday significant injury or illness. If the splints that are used to provide rigidity definition of first aid. OSHA believes worker has sustained a significant injury as part of the required medical that it would be inappropriate to rely on or illness, the case almost always treatment should trigger recordability’’ ‘‘restricted activity,’’ as recommended involves some other form of medical (Ex. 15: 201). by GE, because there may be situations treatment (such as prescription drugs, Several comments centered on the where orthopedic devices are physical therapy, or chiropractic issue of immobilization for injuries prescribed, the worker is not placed on
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restrictions, but an injury or illness continue to be captured if they meet one swab made the case recordable (Ex. 70: warranting recording has occurred. or more of the other recording criteria. 92). However, OSHA agrees with those OSHA has specifically mentioned finger OSHA received few comments on this commenters who stated that the use of nails and toenails to provide clarity. first aid item. NIOSH stated that any these devices during an emergency to These treatments are now included as case involving a foreign body in the eye stabilize an accident victim during item H on the first aid list. should be recorded, because ‘‘even transport to a medical facility is not Item 11 listed in the proposed though removal of a foreign body from medical treatment. In this specific definition of first aid was ‘‘Use of eye the eye may be a first aid procedure, the situation, a splint or other device is patches.’’ The Recordkeeping presence of a work-related foreign body used as temporary first aid treatment, Guidelines did not provide specific in the eye should be recordable. These may be applied by non-licensed guidance about eye patches. However, procedures should not be considered personnel using common materials at in a 1992 letter, OSHA provided an first aid’’ (Ex. 15: 407). The Ford Motor hand, and often does not reflect the interpretation that the use of eye Company asked OSHA to clarify that a severity of the injury. OSHA has patches was first aid treatment; in that foreign body ‘‘embedded in or adhered included this item as G on the first aid letter, ELB Inc. asked OSHA to to’’ the eye and removed by the methods list: ‘‘[u]sing temporary immobilization ‘‘[e]xplain if pressure patches on eyes proposed would be considered first aid. devices while transporting an accident are recordable or if a patch over an eye Ford added that ‘‘[t]he use of a victim (e.g. splints, slings, neck collars, to prevent light from entering is prescription medication to anesthetize etc.)’’ recordable? Is the use of an eye patch the eye for a diagnostic procedure, an Item 10 listed in the proposed recordable?’’ OSHA answered ‘‘ The use assessment procedure, or flushing to definition of first aid was ‘‘drilling of a of a normal eye patch is considered to remove a loose foreign body should not nail to relieve pressure for subungual be first aid. However, if the employee is be considered medical treatment’’ (Ex. hematoma.’’ A subungual hematoma is unable to perform all of his/her normal 15: 347). Countrymark Cooperative, Inc. an accumulation of blood underneath a job duties because of the patch, the case asked that the definition of this item be finger or toenail that is normally caused should be recorded based on restricted expanded to include other means of by a sharp blow to the nail. When work activity. The use of a pressure eye removal, stating: ‘‘We suggest wording pressure builds beneath the nail, pain patch is medical treatment’’ (Ex. 70: such as * * * Removal of foreign bodies results. The normal course of treatment 161) . not embedded in the eye if only for this injury is to drill a small hole irrigation or simple removal techniques OSHA received only one comment through the nail to relieve the pressure. are required, or comparable’’ (Ex. 15: 9). specific to this item. The National In the past, OSHA considered such In the final rule, OSHA has included Institute for Occupational Safety and treatment to be medical treatment and as item J ‘‘Removing foreign bodies from not first aid. For example, a 1993 letter Health (NIOSH) stated that the initial the eye using only irrigation or a cotton from IBP, Inc. asked whether ‘‘[d]rilling use of an eye patch would generally swab.’’ OSHA believes that it is often a hole through a fingernail to relieve require medical evaluation and should difficult for the health care professional pressure (subungual hematoma) is not be considered first aid (Ex. 15: 407). to determine if the object is embedded considered medical treatment?’’ OSHA’s In the final rule, OSHA has included the or adhered to the eye, and has not answer was ‘‘Yes, the draining of any use of eye patches as first aid in item I included this suggested language in the fluids or blood is to be considered of the first aid list. Eye patches can be final rule. In all probability, if the object medical treatment’’ (Ex. 70: 136). purchased without a prescription, and is embedded or adhered, it will not be OSHA received very few comments are used for both serious and non- removed simply with irrigation or a on this first aid item. Linda Ballas & serious injuries and illnesses. OSHA cotton swab, and the case will be Associates stated ‘‘The drilling of a nail believes that the more serious injuries to recorded because it will require to relieve pressure for subungual the eyes will that NIOSH refers to additional treatment. hematoma should be included as require medical treatment, such as OSHA believes that it is appropriate medical treatment and not first aid’’ (Ex. prescription drugs or removal of foreign to exclude those cases from the Log that 15: 31, p. 5). The American Textile material by means other than irrigation involve a foreign body in the eye of a Manufacturers Institute recommended or a cotton swab, and will thus be worker that can be removed from the that OSHA change the item to: ‘‘Simple recordable. eye merely by rinsing it with water relieving of the pressure of a subungual Item 12 listed in the proposed (irrigation) or touching it with a cotton hematoma. The use of the word drilling definition of first aid was ‘‘removal of swab. These cases represent minor is too restrictive. There are a number of foreign bodies not embedded in the eye injuries that do not rise to the level simple procedures to relieve pressure if only irrigation or removal with a requiring recording. More significant that are considered first aid’’ (Ex. cotton swab is required.’’ The effect of eye injuries will be captured by the 15:156). OSHA also received a similar including this item in the list of first aid records because they involve medical comment from Oxychem Corporation treatments would be to make any case treatment, result in work restrictions, or stating that lancing a blister should be involving a foreign body embedded in cause days away from work. considered first aid (Ex. 15: 386). the eye a recordable injury. Item 13, the last item listed in the OSHA has decided to retain this item The Recordkeeping Guidelines listed proposed definition of first aid, was on the first aid list and to add the ‘‘removal of foreign bodies embedded in ‘‘Removal of splinters or foreign lancing of blisters as well. These are the eye’’ as medical treatment and material from areas other than the eyes both one time treatments provided to ‘‘removal of foreign bodies not by irrigation, tweezers, cotton swabs or relieve minor soreness caused by the embedded in eye if only irrigation is other simple means.’’ The pressure beneath the nail or in the required’’ as first aid (Ex. 2, p. 43). In Recordkeeping Guidelines distinguished blister. These are relatively minor subsequent letters of interpretation, the between foreign body removal cases on procedures that are often performed by use of a cotton swab to remove a foreign the basis of the complexity of the licensed personnel but may also be body from the eye was interpreted to be removal technique used. According to performed by the injured worker. More first aid; injuries requiring any removal the Guidelines, the ‘‘removal of foreign serious injuries of this type will method other than irrigation or a cotton bodies from a wound if the procedure is
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complicated because of depth of professional who trains the worker in highly trained professional using embedment, size or location’’ was the proper frequency, duration and surgical instruments. Debridement is medical treatment, while ‘‘removal of intensity of the exercise. Physical also usually performed in conjunction foreign bodies from wound, if procedure therapy treatments are normally with other forms of medical treatment, is uncomplicated, and is, for example, provided over an extended time as such as sutures, prescription drugs, etc. by tweezers or other simple technique’’ therapy for a serious injury or illness, Intravenous (IV) administration of was first aid (Ex. 2, p. 43). and OSHA believes that such treatments glucose and saline: Two commenters OSHA received one comment specific are beyond first aid and that cases (Exs. 15: 154, 395) argued that the to this proposed first aid item. The requiring them involve medical intravenous administration of saline Muscatine Iowa Chamber of Commerce treatment. (salt) and glucose (sugar) should be Safety Committee stated ‘‘The list Chiropractic treatment: A few considered first aid. In former letters of appears to be very inclusive of what commenters believe that chiropractic interpretation, OSHA considered these items are currently understood as first treatment should be treated as first aid treatments first aid in injury cases (see, aid treatments. Our only concern is the (see, e.g., Exs. 15: 154, 299, 396). For e.g., Exs. 15: 154, 395). In the final rule, ambiguous ending of Number 13. example, the Sandoz Corporation stated however, OSHA has decided not to ‘‘* * * or other simple means.’’ This ‘‘[i]t would simplify our record keeping include the IV administration of fluids should be further defined. Change if there were better definition of the use on the first aid list because these number 13 to read: ‘‘Removal of of chiropractors. Is one visit counted or treatments are used for serious medical splinters or foreign material from areas do you have to have multiple visits’’ events, such as post-shock, dehydration other than the eyes by irrigation, (Ex. 15: 299). OSHA does not or heat stroke. The administration of IVs tweezers, cotton swabs or by excision distinguish, for recordkeeping purposes, is an advanced procedure that can only not to exceed the depth of the outer between first aid and medical treatment be administered by a person with layer of skin’’ (Ex. 15: 87). cases on the basis of number of advanced medical training, and is In the final rule, OSHA has decided treatments administered. OSHA also usually performed under the to retain item 13 essentially as does not distinguish between various supervision of a physician. proposed, and this first aid treatment kinds of health care professionals, The Union Carbide Corporation (Ex. appears as item K on the first aid list. assuming they are operating within their 15: 396) also recommended three The inclusion of the phrase ‘‘other scope of practice. If a chiropractor additions to the first aid list: UV simple means’’ will provide some provides observation, counseling, treatment of blisters, rashes and flexibility and permit simple means diagnostic procedures, or first aid dermatitis; acupuncture, when other than those listed to be considered procedures for a work-related injury or administered by a licensed health care first aid. Cases involving more illness, the case would not be professional; and electronic stimulation. complicated removal procedures will be recordable. On the other hand, if a After careful consideration, OSHA has captured on the Log because they will chiropractor provides medical treatment decided not to include these treatments require medical treatment such as or prescribes work restrictions, the case as first aid. Each of these treatments prescription drugs or stitches or will would be recordable. involve restricted work or days away Massage therapy: The Union Carbide must be provided by a person with from work. OSHA believes that cases company recommended the addition of specialized training, and is usually involving the excision of the outer layer massages and prescribed physical administered only after of skin are not appropriately considered therapy to the first aid list (Ex. 15: 396). recommendation by a physician or other first aid, as suggested by the Muscatine OSHA believes that massages are licensed health care professional. Iowa Chamber of Commerce; excision of appropriately considered first aid and Several commenters asked that tissue requires training and the use of has included them as item M in the final treatments for two specific types of surgical instruments. rule’s first aid list. However, physical disorders be added to the list: heat therapy or chiropractic manipulation disorders and burns. OSHA has not Additions to the First Aid List are treatments used for more serious added these types of conditions to the Suggested by Commenters injuries, and are provided by licensed first aid list because the list includes In addition to comments about the personnel with advanced training and treatments rather than conditions. first aid items OSHA proposed to therefore rise to the level of medical However, OSHA has added fluids given consider first aid, a number of treatment beyond first aid. by mouth for the relief of heat disorders commenters asked for additional Debridement: Several commenters to the list, in response to comments clarifications or recommended additions recommended that OSHA include received. to the first aid list. The items suggested debridement as a first aid treatment (see, Two commenters asked about the included exercise, chiropractic e.g., Exs. 15: 201, 332, 349, 387). recording of heat disorders and how treatment, massage, debridement, Debridement is the surgical excision, or they relate to the definition of first aid poison ivy, bee stings, heat disorders, cutting away, of dead or contaminated and medical treatment. Union Carbide and burns. tissue from a wound. The recommended an addition to the first Exercise: Several commenters Recordkeeping Guidelines listed aid list to state ‘‘fluids taken internally requested adding exercise, performed ‘‘cutting away dead skin (surgical for heat stress’’ (Ex. 15: 396). The either at home or at work, to the list debridement)’’ as an example of medical Arizona Public Service Company (see, e.g., Exs. 15: 201, 308, 349, 396). treatment (Ex. 2, p. 43). The Caterpillar remarked: ‘‘Recordability of heat stress For example, Caterpillar suggested that Company recommended that OSHA and heat rash should be addressed OSHA ‘‘[a]dd a listing for range of ‘‘[a]dd to the [first aid] listing provisions based on classification of treatment (first motion exercises and minor physical for the minor removal of nonviable aid vs. medical)’’ (Ex. 15: 247). Under therapy performed at home’’ (Ex. 15: tissue as first aid treatment’’ (Ex. 15: OSHA’s former recordkeeping system, 201). These comments described 201). heat stress was recordable as an exercises that amount to self- OSHA has decided not to include occupational illness because it results administered physical therapy, and are debridement as a first aid treatment. from non-instantaneous exposures that normally recommended by a health care This procedure must be performed by a occur over time and all occupational
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illnesses, including minor ones, were example, a small second degree burn to the items listed in the OSHA rule as first-aid considered recordable. the forearm that is treated with nothing treatments which do not require reporting In the final rule, OSHA agrees with more than a bandage is not recordable. under the proposed OSHA standard (i.e. use Union Carbide that drinking fluids for of splints, drilling a nail in a hematoma, use A larger or more severe second degree of compresses and non-prescription the relief of heat disorders is a first aid burn that is treated with prescription medications), may still require reporting rather than medical treatment and item creams or antibiotics, or results in under the WCL because in a particular case N on the final first aid list is ‘‘drinking restricted work, job transfer, or days the treatment qualifies as medical treatment fluids for relief of heat stress.’’ However, away from work is recordable. The vast or because it has caused lost time from work as discussed above, OSHA believes that majority of first degree burns and minor beyond the working day. The only problem more extensive treatment, including the second degree burns will not be would be if employers, in complying with administration of fluids by intravenous recorded because they will not meet the proposed OSHA requirements, failed to injections (IV), are medical treatment, continue to comply with New York’s recording criteria, including medical recording and reporting requirements (Ex. 15: and more serious cases of heat disorders treatment. However, more serious first 68). involving them must be entered into the and second degree burns that receive OSHA’s reporting requirements do not records. In addition, any diagnosis by a medical treatment will be recorded, and in any way interfere with or have any physician or other licensed health care third degree burns should always be impact on state workers compensation professional of heat syncope (fainting recorded because they require medical reporting requirements. Employers are due to heat) is recordable under treatment. paragraph 1904.7(b)(6), Loss of required to record certain injuries and Consciousness. Miscellaneous First Aid and Medical illnesses under the OSHA Burns: Many commenters Treatment Issues recordkeeping regulation and to observe recommended that OSHA include the The American Association of certain other requirements under treatment of burns on the first aid list Occupational Health Nurses (AAOHN) workers’ compensation law. The two (see, e.g., Exs. 45, 170, 260, 262, 265, was concerned that the public might laws have separate functions: workers’ 288, 301, 401, 414, 443). Teepak Inc. interpret the fact that treatments were compensation is designed to stated ‘‘[s]econd degree burns treated by listed as first aid to mean that they did compensate injured or ill workers, while first aid measures only, with no not have to be administered, in some the OSH Act is designed to prevent infection or complication or cases, by a health care professional: injuries and illnesses and to create a prescription medication, should be body of information to improve considered first aid’’ (Ex. 15: 45). The OSHA must clarify that categorizing understanding of their causes. Thus, certain actions as first aid does not certain injuries and illnesses may be Georgia Power Company argued that necessarily imply that these actions can be ‘‘[t]reatment of all first degree burns delegated to a non-health care professional. reportable under state workers’ should be added to the list of first aid While a list of actions considered first aid compensation law but not under the treatments because they are minor treatment will offer guidance for employers OSHA recordkeeping rule, and certain injuries that are exempt from the in determining recordability of incidents, injuries and illnesses may be reportable requirements of the Act. Omission of situations exist that will require the under the OSHA rule but not under one first degree and second degree burns professional judgment of a health care or more workers’ compensation statutes. receiving only first aid treatment from professional. One example is the OSHA notes that employers have been this list is inconsistent with the administration of tetanus/diphtheria shots. following the requirements of both While it is appropriate to consider these systems for years, and have generally recording criteria listed for burns of the treatments first aid for recordability, skin in [proposed] Appendix B’’ (Ex. 15: injections pose issues that require the not experienced difficulty in doing so. 260). The Chemical Manufacturers judgment and expertise of a health care Several commenters remarked on the Association recommended that OSHA professional. One potential hazard of this need for OSHA to update the first aid add ‘‘[b]urns that require only one-time treatment is the risk of side effects. The list in the future (see, e.g., Exs. 234, 247, treatment. Subsequent observations and ability to identify the reaction and take 384, 407). One commenter remarked: changing of bandages does not appropriate measures should be handled by ‘‘The suggested first aid list adds and constitute medical treatment’’ (Ex. 15: a qualified health care professional (Ex. 15: clarifies some treatments as first aid. 301). 181). There should be a mechanism for The former Recordkeeping Guidelines OSHA agrees with the AAOHN that adding or removing treatments to first listed the treatment of first degree burns certain treatments and interventions aid and medical treatment lists as new as an example of first aid treatment and require the professional judgment of a information becomes available’’ (Ex. 15: did not consider such treatment to be health care professional. The Agency 234). The Akzo Nobel Company recordable (Ex. 2, p. 43). In the final believes that these matters are best left suggested that ‘‘[w]ith the assistance of rule, OSHA has decided not to include to state agencies and licensing boards, occupational physicians, updates could burn treatments on the first aid list. If and the final rule’s definition of health be made quarterly and distributed via first, second, or third degree burns care professional (see Subpart G) makes the Internet’’ (Ex. 15: 384). The National result in days away from work, this clear. Institute for Occupational Safety and restricted work activity, or medical The State of New York expressed a Health (NIOSH) recommended ‘‘[t]he treatment beyond first aid, such as concern about the possible confusion first aid list, however, should be prescription drugs or complex removal some employers might experience included as an appendix, rather than in of foreign material from the wound, they between OSHA’s requirements and the rule itself, in order to allow will rise to the level that requires those of the state workers’ compensation revisions to be made more easily as recording. systems. The New York Workers’ medical practice evolves’’ (Ex. 15: 407). Taking this approach means that Compensation Board stated: In response, OSHA notes that the list burns will be treated just as other types The proposed rule contains a broad list of is part of a definition that sets of injury are, i.e., minor burn injuries treatments which will qualify as first aid, mandatory recording and reporting will not be recordable, while more with less emphasis on the number of requirements and is a part of the serious burns will be recorded because treatments or the resulting amount of lost regulation itself. Including the first aid they will involve medical treatment. For time from work. It is possible that many of list as a non-mandatory appendix would
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provide additional flexibility for future illness. The exceptions to the considered to be a loss of updates, but doing so would not meet presumption of work-relationship at consciousness? Perhaps OSHA should the purposes for which the list is § 1904.5(b)(2)(ii) allow the employer to define the term to avoid any confusion.’’ intended. The list is mandatory, and exclude cases that ‘‘involve signs or In this final rule, OSHA has not making it non-mandatory would only symptoms that surface at work but included a separate definition for the introduce additional confusion about result solely from a non-work-related term ‘‘loss of consciousness.’’ However, what is or is not to be entered into the event or exposure that occurs outside the language of paragraph 1904.7(b)(6) records. As a result, the mechanism the work environment.’’ This exception has been carefully crafted to address OSHA will use to update or modify the allows the employer to exclude cases two issues. First, the paragraph refers to first aid list will be to pursue a future where a loss of consciousness is due a worker becoming ‘‘unconscious,’’ rulemaking, if and when such a solely to a personal health condition, which means a complete loss of rulemaking is needed. OSHA will such as epilepsy, diabetes, or consciousness and not a sense of continue to issue letters of narcolepsy. disorientation, ‘‘feeling woozy,’’ or a interpretation to help employers The American Crystal Sugar Company other diminished level of awareness. understand the requirements as they (Ex. 15: 363) raised the issue of phobias Second, the final rule makes it clear that apply to specific situations. resulting in loss of consciousness: loss of consciousness does not depend on the amount of time the employee is Paragraph 1904.7(b)(6) Loss of I would also like to suggest exempting an unconscious. If the employee is Consciousness employee’s loss of consciousness based on a fear-based phobia, i.e., fainting at the sight of rendered unconscious for any length of The final rule, like the former rule, blood. Occasionally an OSHA regulation may time, no matter how brief, the case must requires the employer to record any require blood tests, such as checking lead be recorded on the OSHA 300 Log. work-related injury or illness resulting levels in blood. There are a few employees in a loss of consciousness. The that will lose consciousness at the sight of a Paragraph 1904.7(b)(7) Recording recording of occupational injuries and needle. These phobias are not limited to Significant Work-Related Injuries and medical procedures, but may include spiders, illnesses resulting in loss of Illnesses Diagnosed by a Physician or snakes, etc. In several of our factories, the Other Licensed Health Care Professional consciousness is clearly required by occupational health nurse will administer Sections 8(c) and 24 of the OSH Act. tetanus boosters as a service to our Paragraph 1904.7(b)(7) of this final The new rule differs from the former employees. Employees that have a phobia rule requires the recording of any rule only in clearly applying the loss of about injections can (and do) lose significant work-related injury or illness consciousness criterion to illnesses as consciousness, which now makes what was diagnosed by a physician or other well as injuries. Since the former rule intended as a service an OSHA recordable licensed health care professional. required the recording of all illnesses, accident. Paragraph 1904.7(b)(7) clarifies which illnesses involving loss of consciousness The final rule does not contain an significant, diagnosed work-related were recordable, and thus OSHA exception for loss of consciousness injuries and illnesses OSHA requires the expects that this clarification will not associated with phobias or first aid employer to record in those rare cases change recording practices. Thus, any treatment. OSHA notes, however, that where a significant work-related injury time a worker becomes unconscious as the exception at paragraph or illness has not triggered recording a result of a workplace exposure to 1904.5(b)(2)(iii) allows the employer to under one or more of the general chemicals, heat, an oxygen deficient rebut the presumption of work recording criteria, i.e, has not resulted environment, a blow to the head, or relationship if ‘‘the injury or illness in death, loss of consciousness, medical some other workplace hazard that results solely from voluntary treatment beyond first aid, restricted causes loss of consciousness, the participation in a wellness program or work or job transfer, or days away from employer must record the case. in a medical, fitness, or recreational work. Based on the Agency’s prior Very few commenters addressed the activity such as blood donation, recordkeeping experience, OSHA issue of loss of consciousness. Three physical, flu shot, exercise class, believes that the great majority of commenters asked OSHA to make sure racquetball, or baseball.’’ This exception significant occupational injuries and that these cases are not recordable would eliminate the recording of illnesses will be captured by one or unless they are the result of a work- fainting episodes involving voluntary more of the other general recording related injury or illness (see, e.g., Exs. vaccination programs, blood donations criteria in Section 1904.7. However, 15: 102, 159, 176). The American Frozen and the like. However, episodes of OSHA has found that there is a limited Food Institute (AFFI) stated that ‘‘[l]oss fainting from mandatory medical class of significant work-related injuries of consciousness should not be reported procedures such as blood tests and illnesses that may not be captured unless it is the clear result of a work mandated by OSHA standards, under the other § 1904.7 criteria. related injury or illness’’ (Ex. 15: 102). mandatory physicals, and so on would Therefore, the final rule stipulates at The Chemical Manufacturers be considered work-related events, and paragraph 1904.7(b)(7) that any Association added ‘‘OSHA must clearly would be recordable on the Log if they significant work-related occupational indicate in the final recordkeeping rule meet one or more of the recording injury or illness that is not captured by that loss of consciousness must be criteria. Similarly, a fainting episode any of the general recording criteria but induced by an occupational exposure. involving a phobia stemming from an is diagnosed by a physician or other For example, if someone faints at work event or exposure in the work licensed health care professional be due to pregnancy or has an epileptic environment would be recordable. recorded in the employer’s records. seizure, such loss of consciousness The Union Carbide Corporation (Ex. Under the final rule, an injury or should not be recordable’’ (Ex. 15: 176). 15: 396) asked OSHA to be more precise illness case is considered significant if OSHA agrees with these commenters about the definition of loss of it is a work-related case involving that, in order to be a recordable event, consciousness, stating that ‘‘[m]ost occupational cancer (e.g., a loss of consciousness must be the people generally understand this term mesothelioma), chronic irreversible result of a workplace event or exposure. without a definition, but it can be open disease (e.g., chronic beryllium disease), Loss of consciousness is no different, in to interpretation. For example, is a fractured or cracked bone (e.g., broken this respect, from any other injury or ‘feeling woozy’ for a few seconds arm, cracked rib), or a punctured
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eardrum. The employer must record complete recording of significant Each of these questions, and the such cases within 7 days of receiving a occupational conditions. Second, this comments received, are discussed in diagnosis from a physician or other requirement will produce more timely greater detail below: (1) Are additional licensed health care professional that an records because it provides for the recording criteria beyond loss of injury or illness of this kind has immediate recording of significant consciousness, medical treatment, occurred. As explained in the note to disorders on first diagnosis. Many restricted work, job transfer, days away, paragraph 1904.7(b)(7), OSHA believes occupational illnesses manifest or death needed in the final rule?; (2) if that the great majority of significant themselves through gradual onset and so, should these additional criteria work-related injuries and illnesses will worsening of the condition. In some address a finite list of specific be recorded because they meet one or cases, a worker could be diagnosed with conditions or address a broader range of more of the other recording criteria a significant illness, such as an disorders?; (3) how should the agency listed in § 1904.7(a): death, days away irreversible respiratory disorder, not be define ‘‘significant’’ injuries and from work, restricted work or job given medical treatment because no illnesses?; and (4) how should the final transfer, medical treatment beyond first effective treatment was available, not rule ensure the work-relatedness of aid, or loss of consciousness. However, lose time from work because the illness these cases? there are some significant injuries, such was not debilitating at the time, and not as a punctured eardrum or a fractured have his or her case recorded on the Log Are Additional Recording Criteria toe or rib, for which neither medical because none of the recording criteria Needed? treatment nor work restrictions may be had been met. If such a worker left Many commenters viewed proposed administered or recommended. employment or changed employers Appendix B as an unnecessary addition There are also a number of significant before one of the other recording criteria to the other general recording criteria occupational diseases that progress once had been met, this serious occupational and argued that OSHA should use the the disease process begins or reaches a illness case would never be recorded. general criteria listed in the OSH Act certain point, such as byssinosis, The requirements in paragraph itself for most if not all of the listed silicosis, and some types of cancer, for 1904.7(b)(7) remedy this deficiency and conditions (see, e.g., Exs. 15: 52, 146, which medical treatment or work will thus ensure the capture of more 200, 203, 219, 260, 262, 265, 271, 272, restrictions may not be recommended at complete and timely data on these 303, 313, 329, 348, 352, 353, 368, 401, the time of diagnosis, although medical injuries and illnesses. 427). For example, the Atlantic treatment and loss of work certainly will The provisions of paragraph Richfield Company (ARCO) stated that: occur at later stages. This provision of 1904.7(b)(7) are an outgrowth of [t]his broadening of the recordability the final rule is designed to capture this Appendix B of the proposed rule, which criteria particularly as detailed in [proposed] small group of significant work-related included provisions for the recording of mandatory Appendix B dilutes the cases. Although the employer is individual conditions, such as blood significant data with marginal data and does required to record these illnesses even lead levels, musculoskeletal disorders, not, in our view, fit with OSHA’s stated goals for improved Log accuracy and utility. ARCO if they manifest themselves after the and various respiratory ailments. As believes that for almost all of these specific employee leaves employment (assuming OSHA explained in the preamble to the exposures, the appropriate data can be the illness meets the standards for work- proposed rule (61 FR 4039–4042), the captured through the normal performance relatedness that apply to all recordable proposed requirements were intended to criteria of whether the condition or exposure incidents), these cases are less likely to ensure the recording of significant non- has caused a day away from work, restriction be recorded once the employee has left fatal cases that did not meet the general on activity, or resulted in medical treatment. employment. OSHA believes that work- criteria (days away, restricted work, It is, therefore, our opinion that Appendix B related cancer, chronic irreversible medical treatment, etc.). is unnecessary and appropriate for deletion (Ex. 15: 329). diseases, fractures of bones or teeth and Proposed Appendix B has not been punctured eardrums are generally included in the final rule, which instead However, other commenters saw a recognized as constituting significant includes additional separate criteria for need for and supported the inclusion of diagnoses and, if the condition is work- several of the conditions proposed to be additional recording criteria in the final related, are appropriately recorded at included in Appendix B; these criteria, rule (see, e.g., Exs. 15: 201, 301, 304, the time of initial diagnosis even if, at which cover tuberculosis cases, hearing 318). For example, the National that time, medical treatment or work loss cases, and so on, appear in the final Federation of Independent Business restrictions are not recommended. rule at § 1904.8 through § 1904.12. The (NFIB) agreed that ‘‘[t]here are some As discussed in the Legal Authority requirements at paragraph 1904.7(b)(7) conditions which are serious enough to section, above, OSHA has modified the of the final rule, which require the be recorded, but could escape the Agency’s prior position so that, under recording of significant injuries and proposed recordkeeping criteria of the final rule, minor occupational illnesses not meeting one or more of the medical treatment, restricted or loss illnesses no longer are required to be general recording criteria, will ensure workdays or job transfer’’ (Ex. 15: 304). recorded on the Log. The requirement the recording of the small number of Caterpillar agreed ‘‘[w]ith the basic pertaining to the recording of all significant conditions that would have concept proposed in Appendix B that significant diagnosed injuries and been covered by proposed Appendix B additional guidelines are needed to illnesses in this paragraph of the final and are not elsewhere addressed in the capture some injuries and illnesses rule, on the other hand, will ensure that final rule. Thus, OSHA believes that serious enough to be recorded, which all significant (non-minor) injuries and cases involving the conditions listed in may not be captured by the basic illnesses are in fact captured on the Log, proposed Appendix B will be captured recordkeeping criteria’’ (Ex. 15: 201). as required by the OSH Act. Requiring either by the requirements in this OSHA agrees with those commenters significant cases involving diagnosis to significant diagnosed case section or by who supported the inclusion in the final be recorded will help to achieve several the other general recording criteria. rule of an additional mechanism to of the goals of this rulemaking. First, In developing the text of paragraph ensure the capture of significant work- adherence to this requirement will 1904.7(b)(7) of the final rule, OSHA related injuries and illnesses that are produce better data on occupational reviewed the following questions as diagnosed by a physician or other injury and illness by providing for more they related to proposed Appendix B. licensed health care professional but do
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not, at least at the time of diagnosis, statement ‘‘including symptomology with a Some of the guidance provided in meet the criteria of death, days away clear workplace link’’ (Ex. 15: 153). Appendix B does not meet these from work, restricted work or job OSHA generally agrees with these criteria’’ (Ex. 15: 389). The Chemical transfer, medical treatment beyond first points. Limiting the recording of non- Manufacturers Association suggested aid, or loss of consciousness. The minor occupational injuries and that only those conditions ‘‘[w]hose recording of all non-minor injuries and illnesses to a finite list runs counter to seriousness is approximately equal to illnesses is consistent with the OSH Act the goal of this rule, which is to capture that of conditions captured by (see the Legal Authority section) and comprehensive data on all non-minor traditional criteria’’ be included in has been the intent of the recordkeeping work-related injuries and illnesses, and Appendix B (Ex. 15: 301), and the system for many years. The primary goal thus including such a list would not Dupont Company proposed that the of the requirement at paragraph meet the Agency’s statutory mandate to conditions listed in Appendix B 1904.7(b)(7) is to produce more accurate collect such data. OSHA believes there ‘‘[i]nclude only situations that cause a and complete data on non-minor work- will be very few injuries and illnesses permanent change to the body structure related injuries and illnesses. Because that are not captured by the general where medical treatment may not be the number of significant work-related recording criteria. For example, non- given’’ (Ex. 15: 348). Dupont also stated injuries and illnesses may not be minor acute illnesses, such as the skin that ‘‘[O]SHA should provide scientific captured by one or more of the other disorders potentially associated with evidence that a change in a lab reading general recording criteria, OSHA finds aniline exposure, will be captured by [laboratory tests results were also that this additional criterion is needed. the other criteria, particularly medical included in proposed Appendix B] is However, OSHA believes that most treatment beyond first aid, restricted the equivalent of a serious or significant cases will be captured by the general work or job transfer, or days away from change to the body structure’’ (Ex. 15: recording criteria. work. However, to address the gap in 348). Other commenters such as the Marathon Oil Company questioned Should Additional Criteria Address a case capture presented by significant whether OSHA had the legal authority Finite List of Specific Conditions or injury and illness cases that escape the ‘‘[t]o require employers to record these Address a Broader Range of Disorders? general recording criteria, OSHA is requiring employers to record cases of non-serious exposures. The OSHA Proposed Appendix B was composed chronic, irreversible disease under the proposed criteria do not represent of a finite list of disorders and their § 1904.7(b)(7) criterion. This means that serious, significant or disabling injuries/ associated recording criteria. A number if long-term workplace exposure to illnesses as required by Section 24(a) of of commenters were concerned that an aniline results in a chronic, irreversible the Act’’ (Ex. 15: 308). inclusive list would overlook other liver or kidney disease, the case would OSHA believes that the conditions conditions that did not meet the general be recordable at the time of diagnosis, that are required to be recorded under recording criteria and were not included even if no medical treatment is § 1904.7(b)(7) of the final rule represent in proposed Appendix B. For example, administered at that time and no time is significant occupational injuries and OxyChem wrote: lost from work. The regulatory text of illnesses as described in the OSH Act. [f]or example, aniline is a substance having paragraph 1904.7(b)(7) limits the types Some clearly significant injuries or specific effects from occupational exposure, of conditions that are recordable, illnesses are not amenable to medical but it is not listed in Appendix B. How will however, to significant diagnosed injury treatment, at least at the time of initial occupational illness cases related to aniline and illness cases, which are defined as diagnosis. For example, a fractured rib, be treated? Under OSHA’s proposal, cancer, chronic irreversible diseases, a broken toe, or a punctured eardrum employers will apply the general fractured or cracked bones, and are often, after being diagnosed, left to recordability criteria to make a decision, and punctured eardrums. heal on their own without medical the case will very likely not be recorded treatment and may not result in days unless it involves medical treatment, loss of How Should the Agency Define consciousness, etc. (Ex. 15: 386) away from work, but they are clearly ‘‘Significant’’ Injury or Illness? significant injuries. Similarly, an This issue was also raised by the Although there was considerable untreatable occupational cancer is International Chemical Workers, who support in the record for the final rule clearly a significant injury or illness. wrote that ‘‘[a]ppendix B limits the to include a list of conditions that might The second set of conditions identified types of illnesses which are recordable. not be captured under the general in paragraph 1904.7(b)(7), chronic It needs to be textually and visually recordkeeping criteria, there was far less irreversible diseases, are cases that clear that this list is not an all inclusive agreement among commenters on the would clearly become recordable at list of recordable illnesses ‘‘ (Ex. 15: specific conditions that should be listed. some point in the future (unless the 415). Additionally, the American Many commenters agreed with Amoco, employee leaves employment before Industrial Hygiene Association had the which testified that ‘‘[t]he criteria medical treatment is provided), when following thoughts on this subject: currently listed in the proposed rule the employee’s condition worsens to a [a]n addition should be made to the end of would require recording of signs, point where medical treatment, time Appendix B to clarify and expand on the symptoms and laboratory abnormalities; away from work, or restricted work are recording of new or emerging occupational situations which are not disabling, needed. By providing for recording at illnesses as introduced by OSHA in serious, or significant’’ (Ex. 22). Waste the time of diagnosis, paragraph Appendix B, second paragraph at the end of Management, Inc., commented that 1904.7(b)(7) of the final rule makes the page 4063: ‘‘Conditions not included in this ‘‘[t]he definition of an illness [in the significant, work-related condition Appendix that otherwise meet the criteria in proposal] or injury refers to an adverse recordable on discovery, a method that the § 1904.4.(c) must be recorded.’’ Medical change in the individual. This is ensures the collection of timely data. diagnoses, including laboratory and diagnostic tests should be the principal interpreted to mean a change which is This approach will result in better criteria for recording occupational illnesses. permanent or a change which is injury and illness data and also is likely The above quotation ‘‘Conditions not clinically demonstrable to be adverse to to be more straightforward for included in this Appendix * * * must be the individual as a result of employers to comply with, since there recorded’’ should be reworded to include the occupational exposure in the workplace. is no further need to track the case to
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determine whether, and at what point, diagnosis’’ (Ed. 15: 67); Fort Howard Involves a diagnosis of a condition which it becomes recordable. recommended that ‘‘[t]he Company in time is expected to result in serious The core of the recording requirement disagrees with the [proposed] impairment (or death), e.g. certain asbestos codified at § 1904.7(b)(7) is the Mandatory Appendix B concept related diseases, employer’s determination that a or particularly in light of the statement in Involved evidence of a chemical exposure ‘‘significant’’ injury or illness has been the Proposal that an employer can not at biological levels where criteria in an diagnosed. The Agency’s former rely solely on the clinical diagnosis of OSHA standard requires medical removal Recordkeeping Guidelines addressed an injury or illness by a physician. Fort (Ex. 15: 375). this issue in interpretations about ‘‘non Howard recommends that an employer Adapto, Inc. (Ex. 15: 258) focused on minor’’ injuries that did not meet the be allowed to specifically rely on the the major life activity concept, stating general recording criteria of death, days conclusions of those trained in this that: away, restricted work, transfer to field, namely physicians’’ (Ex. 15: 194); another job, medical treatment or loss of and Country Mark Cooperative [a]s mentioned previously, Congress consciousness. The Guidelines stated recommended that ‘‘ [i]f an illness is intended that the statistical data compiled (Ex. 2, p. 42) that: diagnosed by a medical provider as under this rule be limited to cases involving disabling, serious, or significant injuries or The distinction between medical treatment linked to the cause agent, then it would illness. Adapto, Inc. believes this phrase and first aid depends not only on the be recorded as ’otherwise recordable’ generally refers to a work-related condition treatment provided, but also on the severity until such time as other recordable that results in a physical or mental of the injury being treated. First aid is: (1) criteria are met such as days unable to impairment that substantially limits a major Limited to one-time treatment and work’’ (Ex. 15: 9). BASF commented life activity. subsequent observation; and (2) involves treatment of only minor injuries, not that ‘‘[proposed] Appendix B should not Union Carbide (Ex. 15: 396) urged that emergency treatment of serious injuries. require the recording of merely signs, the following factors be used for Injuries are not minor if: symptoms, or laboratory abnormalities. determining the conditions that should (a) They must be treated only by a Instead, it should also include objective be included in the final rule: physician or licensed medical personnel; findings or observations on the part of (b) They impair bodily function (i.e., health care providers regarding the Serious illnesses caused by exposures normal use of senses, limbs, etc.); diagnosis of a serious illness or effect which are chronic and cumulative in nature (c) They result in damage to the physical Serious illnesses with a long latency period structure of a nonsuperficial nature (e.g., not otherwise subject to recording between exposure and recognition of the fractures); or requirements’’ (Ex. 15: 403). significant illness condition (d) They involve complications requiring Only a few commenters suggested Serious illnesses which are likely to result followup medical treatment. methods for differentiating between in significant impairment Many commenters on the proposal serious and non-serious cases, in the Serious illnesses without a known or simply stated that the system must context of conditions that should be widely recognized medical treatment until advanced stages. include all serious, significant or listed in the final rule (see, e.g., Exs. 15: disabling injuries, and exclude cases 135, 176, 193, 199, 258, 375, 396). The The Chemical Manufacturing that did not rise to that level (see, e.g., API suggested that, if OSHA identifies a Association (Ex. 15: 176) restated the Exs. 25; 15: 55, 135, 144, 154, 158, 162, need to define ‘‘disabling, serious or same factors articulated by Union 165, 193, 201, 206, 207, 211, 212, 220, significant’’ explicitly, the Agency Carbide and added another factor: 228, 238, 240, 243, 252, 253, 257, 258, should consider the following criteria: ‘‘[s]erious illnesses that are not 261, 264, 267, 272, 274, 276, 286, 293, [a]ny other case which results in a serious treatable.’’ The NYNEX Corporation (Ex. 303, 305, 306, 309, 318, 320, 346, 354, impairment or significant injury for which no 15: 199), the National Broiler Council 358, 365, 368, 375, 382, 383, 395, 397, effective treatment exists, or (NBC), and the National Turkey 408, 412, 420, 421, 427, 434). The involves a diagnosis of a condition which Federation (Ex. 15: 193), in identical comments of the American Petroleum in time is expected to result in a serious comments, focused on the idea of cases Institute (API) reflect this view: ‘‘[A]PI impairment (or death), e.g., certain asbestos- with an expectation of serious is strongly opposed to any provision related diseases; or impairment or death, stating: which would require a case to be involves evidence of a chemical exposure at biological levels where criteria in an [w]e do recognize, however, that there are recorded which is not serious or which OSHA standard requires medical removal some cases that do not meet this criteria that is not likely to become serious. API (Ex. 15: 375). do have the expectation of resulting in strongly disagrees that non-serious serious impairment or even death. We are in subjective signs, symptoms, abnormal Elsewhere in their comments, the API agreement that cases of this potential health test results, or evidence of recommended criteria for selecting seriousness should be recorded when they exposure in and of themselves should which conditions would be listed in are diagnosed by a competent physician or medical professional as work-related. be recorded on the OSHA log—unless proposed Appendix B as follows: the case otherwise meets one of the [t]he purpose of this appendix [proposed The Macon Corporation (Ex. 15: 135) traditional criteria (e.g., medical Appendix B] is to provide for the mandatory suggested using a material impairment treatment, et al.) or results in, or is recording of occupational injuries and test, suggesting that ‘‘[w]e need to expected to result in a serious illnesses which are also serious or establish an effective system for the impairment’’ (Ex. 15: 375). significant—but which do not immediately collection of data on serious work Many comments believed that the result in medical treatment, restricted work related injuries and illnesses which, at recordability of occupational illnesses *** the time of recording, represent a should rely on the diagnosis of a health Such cases fall into three broad categories. material impairment to the health or care professional. For example, the U.S. They occur when the injury or illness either functional capacity [of the injured or ill Results in a serious impairment (unable to Small Business Administration perform any normal life activity such as worker].’’ OSHA has not adopted the recommended that ‘‘[a] recordable walking, eating, thinking, talking, breathing, material impairment alternative in the incident under the [proposed] ‘Specific seeing, smelling, hearing, driving a car. final rule because the term has specific Conditions’ should be subject to a Incontinence and impotence would also be meaning in the context of OSHA health care provider’s clinical included) rulemaking. Section 6(b)(5) of the Act,
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which sets forth the criteria for genetic asthma with no relationship to their work duties and are therefore at promulgating standards dealing with the working environment and would risk of bloodborne infections caused by toxic substances or harmful physical serve no purpose other than to balloon exposures involving contaminated agents, states that OSHA shall ‘‘set the the statistics.’’ needles and other sharps. Although standard which most adequately OSHA wishes to reiterate that any healthcare workers are at particular risk assures, to the extent feasible, on the condition that is recordable on the of bloodborne infection from these basis of the best available evidence, that OSHA injury and illness recordkeeping injuries, other workers may also be at no employee will suffer material forms must be work-related, and risk of contracting potentially fatal impairment of health or functional § 1904.7(b)(7) includes the term ‘‘work- bloodborne disease. For example, a capacity even if such employee has related’’ to make this fact clear. In worker in a hospital laundry could be regular exposure to the hazard dealt addition, because the employer will be stuck by a contaminated needle left in with by such standard for the period of dealing with a physician or other a patient’s bedding, or a worker in a his working life (emphasis added).’’ licensed health care professional, he or hazardous waste treatment facility could OSHA believes that use of this term in she may also be able to consult with the be occupationally exposed to the recordkeeping rule could cause health care professional about the work- bloodborne pathogens if contaminated confusion among employers. relatedness of the particular case. If the waste from a medical facility was not In the final rule, OSHA has adopted employer determines, based either on treated before being sent to waste an approach similar to that suggested by his or her own findings or those of the treatment. the American Petroleum Institute, i.e., professional, that the symptoms are Section 1904.8(a) requires employers focusing on two types of injury and merely arising at work, but are caused to record on the OSHA Log all work- illness: those that may be essentially by some non-work illness, then the case related needlestick and sharps injuries untreatable, at least in the early stages would not be recorded, under exception involving objects contaminated (or and perhaps never (fractured and (b)(2)(ii) to the work-relatedness reasonably anticipated to be cracked bones, certain types of presumption at § 1904.5(b)(2) of the contaminated) with another person’s occupational cancer, and punctured final rule. Similarly, if workplace events blood or other potentially infectious eardrums) and those expected to or exposures contributed only material (OPIM). The rule prohibits the progressively worsen and become insignificantly to the aggravation of a employer from entering the name of the serious over time (chronic irreversible worker’s preexisting condition, the case affected employee on the Log to protect diseases). The final rule is also need not be recorded under § 1904.5(a) responsive to the many commenters and § 1904.5(b)(3) of the final rule. the individual’s privacy; employees are who urged OSHA to adopt a definition The provisions of § 1904.7(b)(7) of the understandably sensitive about others of severity for this requirement that final rule thus meet the objectives of (1) knowing that they may have contracted would include all serious and capturing significant injuries and a bloodborne disease. For these cases, significant injuries and illnesses, while illnesses that do not meet the other and other types of privacy concern excluding less serious cases. The general recording criteria of death, days cases, the employer simply enters language of paragraph 1904.(b)(7) of the away from work, restricted work or job ‘‘privacy concern case’’ in the space final rule also responds to comments transfer, medical treatment beyond first reserved for the employee’s name. The presented by commenters on the aid, or loss of consciousness; (2) employer then keeps a separate, proposal who argued that relying on test excluding minor injuries and illnesses; confidential list of privacy concern results or other measures as indicators (3) addressing a limited range of cases with the case number from the Log of serious occupational injury or illness disorders; and (4) making it clear that and the employee’s name; this list is was inappropriate. Instead, the final these injuries and illnesses must be used by the employer to keep track of rule relies exclusively on the diagnosis work-related before they must be the injury or illness so that the Log can of a limited class of injuries and recorded. later be updated, if necessary, and to ensure that the information will be illnesses by a physician or other Section 1904.8 Additional Recording licensed health care professional. available if a government representative Criteria for Needlestick and Sharps needs information about injured or ill Clarifying That Cases Captured by Injuries employees during a workplace Paragraph 1904.7(b)(7) Must Be Work Section 1904.8 of the final rule being inspection (see § 1904.40). The Related published today deals with the regulatory text of § 1904.8 refers A number of commenters on the recording of a specific class of recordkeepers and others to proposal expressed concern that occupational injuries involving § 1904.29(b)(6) through § 1904.29(b)(10) proposed Appendix B was not clear punctures, cuts and lacerations caused of the rule for more information about enough about the fact that conditions by needles or other sharp objects how to record privacy concern cases of must be work-related to be recordable contaminated or reasonably anticipated all types, including those involving on the OSHA forms. For example, to be contaminated with blood or other needlesticks and sharps injuries. The several commenters asked OSHA to potentially infectious materials that may implementation section of § 1904.8(b)(1) make sure that recordable cases of lead to bloodborne diseases, such as defines ‘‘other potentially infectious asthma are work-related (see, e.g., Exs. Acquired Immunodeficiency Syndrome material’’ as it is defined in OSHA’s 15: 38, 78, 80, 83, 89, 105, 157, 163, 188, (AIDs), hepatitis B or hepatitis C. The Bloodborne Pathogens Standard (29 CFR 197, 203, 239, 279, 281, 297, 299, 302, final rule uses the terms § 1910.1030, paragraph (b)). Other 337, 345, 378, 395, 414). The Jewel Coal ‘‘contaminated,’’ ‘‘other potentially potentially infectious materials include and Coke Company (Ex. 15: 281) stated infectious material,’’ and ‘‘occupational (i) human bodily fluids, human tissues that ‘‘[asthma, in nearly all cases, is exposure’’ as these terms are defined in and organs, and (ii) other materials genetic and, to be recordable, we feel OSHA’s Bloodborne Pathogens standard infected with the HIV or hepatitis B must be a direct result of something in (29 CFR 1910.1030). These injuries are (HBV) virus such as laboratory cultures the working OSHA environment. To of special concern to healthcare workers or tissues from experimental animals. require anything else would cause the because they use needles and other (For a complete list of OPIM, see unnecessary recording of cases of sharp devices in the performance of paragraph (b) of 29 CFR 1910.1030.)
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Although the final rule requires the Use of the privacy case concept thus 2. The incident results in the recording of all workplace cut and meets the primary objective of this recommendation of medical treatment puncture injuries resulting from an rulemaking, providing the best data beyond first aid (e.g., gamma globulin, event involving contaminated sharps, it possible, while simultaneously ensuring hepatitis B immune globulin, hepatitis B vaccine, or zidovudine) regardless of dosage. does not require the recording of all cuts that an important public policy goal— 3. The incident results in a diagnosis of and punctures. For example, a cut made the protection of privacy about medical seroconversion. The serological status of the by a knife or other sharp instrument that matters—is met. OSHA recognizes that employee shall not be recorded on the OSHA was not contaminated by blood or OPIM requiring employers to treat privacy 200. If a case of seroconversion is known, it would not generally be recordable, and cases differently from other cases adds shall be recorded on the OSHA 200 as an a laceration made by a dirty tin can or some complexity to the recordkeeping injury (e.g., ‘‘needlestick’’ rather than greasy tool would also generally not be system and imposes a burden on those ‘‘seroconversion’’) in the following manner: recordable, providing that the injury did employers whose employees experience a. If the date of the event or exposure is not result from a contaminated sharp known, the original injury shall be recorded such injuries and illnesses, but believes with the date of the event or exposure in and did not meet one of the general that the gain in data quality and column B. recording criteria of medical treatment, employee privacy outweigh these b. If there are multiple events or exposures, restricted work, etc. Paragraph (b)(2) of disadvantages considerably. the most recent injury shall be recorded with § 1904.8 contains provisions indicating The last paragraph (paragraph (c)) of the date that seroconversion is determined in which cuts and punctures must be § 1904.8 deals with the recording of column B. recorded because they involve cases involving workplace contact with In 1999, OSHA updated CPL 2–2.44 contaminated sharps and which must be blood or other potentially infectious and changed this language to simply recorded only if they meet the general materials that do not involve refer to the Part 1904 regulation, in recording criteria. needlesticks or sharps, such as splashes anticipation of the publication of this Paragraph (b)(3) of § 1904.8 contains to the eye, mucous membranes, or non- final recordkeeping rule. requirements for updating the OSHA intact skin. The final recordkeeping rule The proposal 300 Log when a worker experiences a does not require employers to record wound caused by a contaminated these incidents unless they meet the In the 1996 Federal Register notice, needle or sharp and is later diagnosed final rule’s general recording criteria OSHA proposed recording criteria for as having a bloodborne illness, such as (i.e., death, medical treatment, loss of needlestick and sharps injuries that AIDS, hepatitis B or hepatitis C. The consciousness, restricted work or were the same as the criteria being set final rule requires the employer to motion, days away from work, diagnosis forth in this final rule. The requirements update the classification of such a by an HCP) or the employee in the final rule have been stated in privacy concern case on the OSHA 300 subsequently develops an illness caused slightly different language from those in Log if the outcome of the case changes, by bloodborne pathogens. The final rule the proposal to be consistent with the i.e., if it subsequently results in death, thus provides employers, for the first format of the remainder of the rule. The days away from work, restricted work, time, with regulatory language only substantive difference between the or job transfer. The employer must also delineating how they are to record approach taken in the proposal and that update the case description on the Log injuries caused by contaminated needles in the final rule is the way that cases are to indicate the name of the bloodborne and other sharps, and how they are to handled to protect the privacy of the illness and to change the classification injured or ill worker. Appendix B of the of the case from an injury (i.e., the treat other exposure incidents (as defined in the Bloodborne Pathogens proposed rule (61 FR 4065) included needlestick) to an illness (i.e., the illness requirements to record the following: that resulted from the needlestick). In standard) involving blood or OPIM. no case may the employer enter the ‘‘Contaminated’’ is defined just as it is ‘‘any workplace bloodborne pathogen employee’s name on the Log itself, in the Bloodborne Pathogens standard: exposure incident (as defined in 1910.1030(b)) that results in a positive blood whether when initially recording the ‘‘Contaminated means the presence or the reasonably anticipated presence of test or diagnosis by a health care provider needlestick or sharp injury or when indicating AIDS, HIV seroconversion, subsequently updating the record. blood or other potentially infectious materials on an item or surface.’’ hepatitis B or hepatitis C. The privacy concern provisions of the OR final rule make it possible, for the first Before issuance of this final any laceration or puncture wound that time, for the identity of the bloodborne recordkeeping rule, the OSHA involves contact with another person’s blood illness caused by the needlestick or compliance directive CPL 2–2.44C for or other potentially infectious materials. sharps injury to be included on the Log. the Bloodborne Pathogens standard, Note: to protect employee confidentiality, By excluding the name of the injured or ‘‘Enforcement Procedures for the employers shall record occupationally ill employee throughout the Occupational Exposure to Bloodborne acquired bloodborne pathogen diseases, such recordkeeping process, employee Pathogens Standard, 29 CFR 1910.1030’’ as hepatitis B, simply as the initial privacy is assured. This approach will provided recording guidance to bloodborne exposure incident and note the allow OSHA to gather valuable data employers of occupationally exposed exposure type (e.g. needlestick). employees. The CPL 2–2.44C guidance Seroconversion and specific type of about the kinds of bloodborne illnesses bloodborne disease shall not be recorded.’’ healthcare and other workers are treated cuts, lacerations and exposure contracting as a result of these incidents identically, classifying all of OSHA explained in its proposal that occupational injuries, and will provide the events as injuries because they recording these incidents was the most accurate and informative data usually result from instantaneous events appropriate because these injuries are possible, including the seroconversion or exposures. The employer was clearly non-minor, and recording them status of the affected worker, the name required to record an incident when it would be consistent with the Agency’s of the illness he or she contracted, and, met one of the following requirements: mandate to collect information related on the OSHA 301 Form for the original 1. The incident is a work-related injury to the death, illness, and injury of case, more detailed information about that involves loss of consciousness, transfer workers (61 FR 4041). OSHA then how the injury occurred, the equipment to another job, or restriction of work or requested comment on whether it would and materials involved, and so forth. motion. be appropriate to record small puncture
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wounds and lacerations that do not lead stated ‘‘[r]ecording of all Significant (Ex. 15: 364) said that ‘‘Requiring to disease, and whether OSHA should Exposures is unnecessary. recording of exposure incidents rather require employers to record all Seroconversions after exposure, than actual illnesses will improperly ‘‘exposure incidents’’ involving regardless of mode of exposure is inflate the statistics regarding these exposure to blood or OPIM, not just appropriate recordkeeping only’’ (Ex. diseases.’’ Patrick Tyson, a partner at injuries involving contaminated needles 15: 38). Several commenters made Constangy, Brooks & Smith, LLC, (Ex. and sharps. The proposal also asked for similar points. For example, Atlantic 15: 345) stated: comment about the special privacy Dry Dock (Ex. 15: 179) wrote that ‘‘[n]ot In effect, the Proposed Recordkeeping Rule concerns potentially associated with all contact [with blood or other would include on the Log those exposure bloodborne pathogen injuries and potentially infectious materials] will incidents where a medical follow-up illnesses, and asked the following result in an infection. There is no examination actually rules out the resulting questions: ‘‘What data is useful to injury/illness unless an infection has illness. I believe that the Logs should not be collect? Are there other criteria for the actually resulted from the contact.’’ used in this fashion any more than they should be used to record incidents of high recording of bloodborne infectious Some commenters suggested that only those cases that resulted in either levels of workplace noise in the absence of diseases which should be considered? actual hearing loss, or incidents of employee What experience do employers have in medical treatment or seroconversion exposure to highly repetitive jobs in the data collection systems for this hazard?’’ should be recorded on the Log (see, e.g., absence of resulting musculo-skeletal These proposed recording criteria for Exs. 15: 48, 100, 213, 310, 395, 416, disorders. Simply stated, the OSH Act does 423), while others advocated recording needlesticks and sharps injury cases not contemplate or intend the recording of lacerations and puncture wounds only if mere exposure incidents on the OSHA Log. prompted many comments to the they met the rule’s general recording To do so would artificially overstate the rulemaking record. Very few of the criteria (see, e.g., Exs. 15: 52, 200, 203, relative safety and health risk in the comments supported OSHA’s proposed 219, 260, 262, 265, 271, 313, 329, 348, American workplace. position on this issue. Commenters 352, 353, 401). As Bell Atlantic (Ex. 15: On the other hand, a number of either recommended recording all 128) commented, ‘‘[s]erious lacerations commenters recommended that OSHA bloodborne pathogen exposure and puncture wounds involving contact require the recording of all bloodborne incidents or sharply limiting the with bloodborne pathogens should be pathogen incidents as defined in the recording of these events. A large reported. But the mechanism driving bloodborne pathogens standard (see, number of commenters either objected such reporting is the severity of the e.g., Exs. 24, 15: 72, 153, 181, 196, 198, specifically to the recording of all wound and NOT the presence of 289, 379, 380, 418). Several of these bloodborne pathogen exposure bloodborne pathogens. Even with the commenters urged the recording of all incidents or objected to the entire absence of bloodborne pathogens, such exposure incidents to improve the contents of proposed Appendix B (see, serious injuries would be recorded.’’ information on these injuries and e.g., Exs. 15: 1, 37, 38, 39, 44, 48, 52, The American Hospital Association promote better protection for workers 61, 66, 69, 74, 78, 82, 89, 100, 119, 121, and the Georgia Hospital Association (see, e.g., Exs. 24, 15: 72, 153, 181, 196, 122, 126, 133, 146, 151, 152, 154, 156, expressed concern that bloodborne 289, 379, 380). The American 179, 193, 197, 200, 201, 203, 204, 213, pathogen disease criteria require ‘‘the Association of Occupational Health 218, 219, 239, 254, 260, 262, 265, 271, recording of all instances of certain Nurses (AAOHN) remarked ‘‘The benefit 272, 277, 287, 297, 299, 301, 303, 305, conditions that meet specific criteria, in keeping these detailed records of 308, 310, 313, 317, 322, 329, 335, 345, whether or not they meet OSHA’s bloodborne pathogen exposures will be 346, 347, 348, 349, 351, 352, 353, 361, established criteria for recordability the ability to track the root cause of 364, 373, 374, 375, 378, 392, 393, 395, (work-relationship; involves medical resultant injuries and illnesses, 396, 398, 401, 403, 405, 407, 408, 409, treatment or death, loss of regardless of latency’’ (Ex. 15: 181). The 425, 434, 435). The most frequent consciousness, or in-patient National Association of Operating Room suggestion made by commenters was hospitalization, or days away from work Nurses (Ex. 15: 72) added ‘‘Reporting that the only criterion for recording restricted work activity, or job transfer)’’ exposures may raise consciousness bloodborne pathogen diseases should be (Exs. 15: 100, 219). resulting in work practice changes and a positive blood test or diagnosis by a Several commenters stated that the decreased hazard.’’ health care professional (see, e.g., Exs. recording of all bloodborne pathogen Two commenters cited the severity of 15: 1, 38, 61, 65, 78, 82, 119, 122, 133, incidents would be redundant and these incidents as a reason for requiring 151, 152, 179, 201, 213, 260, 262, 265, unnecessary (see, e.g., Exs. 15: 66, 121, the recording of all exposure incidents 290, 299, 301, 317, 345, 347, 373, 374, 299, 322, 408, 435). Some commenters (Exs. 24; 15: 379). The American Nurses 393, 401, 407, 408, 435, 442). Many of said that OSHA’s bloodborne pathogen Association based its arguments on the the commenters who objected to standard already requires recordkeeping severity of the risk, stating ‘‘While the recording all bloodborne incidents on and tracking of bloodborne pathogen Center for Disease Control and the Log argued that these cases reflect exposure incidents (see, e.g., Exs. 15:39, Prevention (CDC) Cooperative exposure only and do not usually reflect 89, 121, 310, 351, 378, 393, 405, 416), Needlestick Surveillance Group cases that rise to the level of an injury and others remarked that general reported no seroconversions to HIV or illness (see, e.g., Exs. 15: 44, 69, 78, medical records already contained positive from mucous membrane or skin 151, 152, 179, 197, 201, 239, 272, 277, adequate data (see, e.g., Exs. 15: 151, exposure, Hepatitis infections have been 287, 303, 308, 313, 345, 347, 348, 349, 152, 179). reported following exposures via these 351, 352, 353, 364, 373, 374, 375, 386, A number of commenters discussed routes. The nature of the risk to HIV 392, 395, 396, 403, 405, 423, 425, 442). the effect on injury and illness statistics however small is very severe, deadly in Other commenters urged OSHA to that would be caused by recording all fact; and the risk of Hepatitis is even consider these cases minor injuries if bloodborne pathogen incidents (see, greater. Because of the severity of the they do not result in disease (see, e.g., e.g., Exs. 15: 39, 44, 48, 61, 66, 69, 126, risk, we believe that all exposures must Exs. 15: 52, 290, 317, 403, 409, 434). 146, 151, 152, 179, 201, 239, 287, 290, be recorded’’ (Ex. 24). The Service Many agreed with the comments 308, 313, 329, 345, 352, 353, 364, 405). Employees International Union (SEIU) submitted by Bellin Hospital, which The Society of the Plastics Industry, Inc. added ‘‘The lives of thousands of health
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care workers each year are decided to require the recording of all HIV, hepatitis B, and hepatitis C. The unnecessarily devastated by workplace injuries from needlesticks committee is concerned that the OSHA 200 occupational exposure to hepatitis B, and sharp objects that are contaminated Log does not accurately reflect the hepatitis C and HIV. A workplace with another person’s blood or other occurrence of these injuries. The committee exposure to blood or other potentially potentially infectious material (OPIM) understands that the reporting and recordkeeping standard (29 CFR 1904) infectious materials represents a on the OSHA Log. These cases must be requires the recording on the OSHA 200 Log significant event in the life of a health recorded, as described above, as privacy of injuries from potentially contaminated care worker, regardless of whether or concern cases, and the employer must needles and other sharps that result in: the not the exposure results in infection keep a separate list of the injured recommendation or administration of with hepatitis B, hepatitis C or HIV’’ employees’ names to enable government medical treatment beyond first aid; death, (Ex. 15: 379). personnel to track these cases. OSHA restriction of work or motion; loss of A few commenters remarked on the does not agree with those commenters consciousness, transfer to another job, or need for consistency between the who were of the opinion that seroconversion in the worker. Accidental bloodborne pathogens standard and the contaminated needlestick and sharps injuries with potentially contaminated injuries are minor injuries comparable needles or other sharps require treatment recordkeeping requirements (see, e.g., beyond first aid. Therefore, the Committee Exs. 15: 153, 198, 379). The National in importance to a puncture by a sewing urges OSHA to require the recording on the Association for Home Care (NAHC) needle or leather punch. OSHA also OSHA 200 log of injuries from needles and stated ‘‘NAHC believes that OSHA disagrees with those commenters who other sharps potentially contaminated with should maintain consistency between believed these incidents are merely bloodborne pathogens (Senate Report 105– individual OSHA bloodborne pathogen exposure incidents roughly comparable 300). requirements and general OSHA with exposure to loud noises. These OSHA finds that these injuries are reporting requirements. Reporting of all incidents are clearly injuries, where the significant injuries because of the risk of exposure incidents is consistent with worker has experienced a cut or seroconversion, disease, and death, they OSHA’s bloodborne pathogen laceration wound. pose (see the preamble to the OSHA OSHA recognizes that these injuries regulations for health care settings Bloodborne Pathogens Standard at 56 are different from most workplace cuts which require medical follow-up of FR 64004). and lacerations, whose seriousness employees for all exposure incidents’’ OSHA recognizes that requiring the (Ex. 15: 198). depends largely on the size, location, jaggedness, or degree of contamination recording of all injuries from Several commenters suggested contaminated needles and sharps will recording all incidents as a method for of the cut, which determines the need for medical treatment, restricted work, result in more cases being recorded on masking the identity of workers who employers’ Logs and will increase the actually contract disease as a result of or time away for recuperation and thus the recordability of the incident. In number of such injuries reflected in the their injury (see, e.g., Exs. 15: 379, 380, Nation’s statistics. However, the Agency 418). The AFL–CIO (Ex. 15: 418) stated: contrast, all injuries from contaminated needles and sharps are serious because does not agree that the statistics will be The AFL–CIO believes that exposures to inappropriately inflated. Instead, OSHA bloodborne pathogens pose a unique case of the risk of contracting a potentially fatal bloodborne disease that is believes that the statistics will with respect to confidentiality and privacy henceforth include, for the first time, concerns. As the Agency has recognized in associated with them. the Bloodborne Pathogen Standard, 29 CFR Many commenters argued that cases that reflect the incidence of these 1910.1030, there are real and legitimate needlestick and sharps injuries are not significant injuries accurately. Adding concerns about discrimination against the kinds of injuries that Congress these cases to the Nation’s statistics will individuals who have tested positive for HIV intended employers to record, as create a more accurate accounting of and other bloodborne infectious diseases. To articulated in the OSH Act (see, e.g., work-related injury and illness cases, address these legitimate confidentiality Exs. 15: 239, 308, 313, 345, 352, 353, information that will be useful to concerns, the AFL–CIO believes that a 375, 395). As discussed earlier in the employers, employees, the government different approach to recording cases related and the public. In addition, the to bloodborne pathogens is required. For Legal Authority section, OSHA these cases, we recommend that the Agency disagrees, believing that Congress collection of this information at the require the recording of needlestick injuries mandated the recording of all non- establishment level will generate data and all exposures to blood or blood minor injuries and illnesses as well as employers and employees can use to contaminated body fluids on the Log 300 and all injuries resulting in medical analyze injury and illness patterns and on the 301. Cases involving actual treatment or one of the other general make improvements in work practices seroconversions should be recorded in the recording criteria. OSHA finds that and equipment. Recording these injuries confidential medical record. This approach will thus help to realize one of this would be consistent with the approach and needlestick and sharps injuries language in the bloodborne pathogen involving blood or other potentially rulemaking’s primary goals, to improve standard. It would permit the log to be used infectious materials are non-minor the utility and quality of the information to track individual cases of exposure for injuries, and therefore must be recorded. in the records. prevention purposes, while at the same time This conclusion is consistent with the If OSHA were to adopt a final rule maintaining the confidentiality of Senate Committee on Appropriations that only required the recording of individuals whose health status had changed report accompanying the fiscal year seroconversion cases and cases that met as a result of exposure. The AFL–CIO the general recording criteria, as many recognizes that this approach will require the 1999 Departments of Labor, Health and recording of exposure incidents which do not Human Services, and Education and commenters suggested (see, e.g., Exs. 15: result in the change of health status and sets Related Agencies Appropriation Bill, 52, 200. 203, 219, 260, 262, 265, 271, different criteria for recording cases related to 1999 (S. 2440) which included the 313, 329, 348, 352, 353, 401), the bloodborne pathogens. Given the unique following language: Nation’s statistics would not be as confidentiality concerns associated with this complete and accurate, and workplace Accidental injuries from contaminated set of conditions, we believe that this special records would not have the same treatment for these conditions is warranted. needles and other sharps jeopardize the well- being of our Nation’s health care workers and preventive value for employees and After a review of the many comments result in preventable transmission of employers. In addition, that approach in the record on this issue, OSHA has devastating bloodborne illnesses, including would be more complex because it
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would require employers to evaluate laceration or puncture wound is clearly indirectly discourages individuals from each case against several criteria before an injury and, if it involves exposure to seeking medical evaluation or treatment, for recording it. The approach taken in the human blood or other potentially the sake of data collection (Ex. 15: 409). final rule is considerably simpler. infectious materials, it rises to the level The AAMA proposed as an alternative Recording all such injuries also helps to of seriousness that requires recording. ‘‘to remove all personal identifiers for protect the privacy of workers who have For splashes and other exposure infectious disease cases from the OSHA been injured in this way. Needlestick incidents, the case does not rise to this log. Some type of employer created and sharps injuries raise special privacy level any more than a chemical coding system could be instituted, as concerns. The comments on this subject exposure does. If an employee who has long as the code was consistently show a universal concern for the been exposed via a splash in the eye applied. Authorized medical personnel privacy of a worker’s medical from the blood or OPIM of a person with and government representatives would information and disease status, and a bloodborne disease actually contracts be the only individuals permitted access OSHA has taken several special an illness, or seroconverts, the case to the personal identifiers and/or key to precautions, discussed elsewhere in the would be recorded (provided that it the coding system’’ (Ex. 15: 409). The preamble, to protect this privacy. meets one or more of the general Quaker Oats Company and the Ford Several commenters suggested recording recording criteria). Motor Company supported similar all needlesticks and sharps incidents as alternatives (Exs. 15: 289, 347). A a method for masking the identify of Privacy Issues number of commenters specifically workers who actually contract disease There was support in the record for supported the use of a coding system (see, e.g., Exs. 15: 379, 380, 418). OSHA OSHA’s proposal to record (see, e.g., Exs. 15: 146, 213, 260, 262, has adopted this practice in the final occupationally acquired bloodborne 265, 345, 347, 409). rule because recording all of these pathogen diseases simply as the initial OSHA shares these commenters’ injuries will help to protect the privacy bloodborne exposure incident to protect concern about the privacy of employees of individual workers as well as employee confidentiality. Eli Lilly and who seroconvert as the result of a produce higher quality data. Company (Ex. 15: 434) commented: bloodborne pathogens-related OSHA disagrees with those Lilly agrees with the Agency’s proposed needlestick or sharps incident and finds commenters who argued that the method of recording exposure incidents that that these incidents are clearly the type § 1904.8 recording requirement would result in disease. All of these recordable of non-minor occupational injury and be duplicative or redundant with the incidents should be recorded simply as the illness Congress intended to be included requirements in the Bloodborne type of bloodborne exposure incident (e.g. in the OSHA recordkeeping system. If Pathogens standard (29 CFR 1910.1030). needlestick) with no reference to the type of the Agency were to exclude these cases That standard requires the employer to disease. While Lilly is concerned about categorically from the records, it would document the route(s) of exposure and protecting the privacy of every individual not be meeting the requirements of the the circumstances under which the employee’s medical information, Lilly OSH Act to produce accurate statistics concedes that the current social stigma exposure incident occurred, but does resulting from bloodborne pathogen diseases on occupational death, injury and not require that it be recorded on the demands a more simple recordkeeping illness. Log (instead, the standard requires only requirement. The final recordkeeping rule that such documentation be maintained addresses this issue by prohibiting the Privacy issues, however, concerned with an employee’s medical records). entry of the employee’s name on the The standard also has no provisions many of the commenters to the OSHA 300 Log for injury and illness requiring an employer to aggregate such rulemaking record. Metropolitan cases involving blood and other information so that it can be analyzed Edison/Pennsylvania Electric Company potentially infectious material. Further, and used to correct hazardous (M/P), for example, was so concerned by requiring employers to record all conditions before they result in with employee privacy that ‘‘[d]ue to needlestick and sharps incidents, additional exposures and/or infections. the sensitivity of Bloodborne Pathogenic regardless of the seroconversion status The same is true for other medical diseases and related confidentiality of the employee, coworkers and records kept by employers: they do not concerns, M/P disagrees with recording representatives who have access to the substitute for the OSHA Log or meet the these types of incidents’’ (Ex. 15: 254). Log will be unable to ascertain the purposes of the Log, even though they The American Automobile disease status of the injured worker. may contain information about a case Manufacturers Association (AAMA), OSHA believes that the privacy concern that is also recorded on the Log. among others, expressed concern that case approach of the final rule obviates OSHA is requiring only that the recording requirement for the need for a coding system because lacerations and puncture wounds that bloodborne pathogen diseases would the case number assigned to the involve contact with another person’s discourage employees from reporting recorded injury will serve the purpose blood or other potentially infectious exposures and might also discourage of a code, without adding additional materials be recorded on the Log. individuals from seeking treatment. complexity or burden. A discussion of Exposure incidents involving exposure AAMA wrote: access to the records is contained in the of the eyes, mouth, other mucous [m]any individuals who contract an portion of the preamble associated with membranes or non-intact skin to another infectious disease from a workplace event or section 1904.35, Employee Involvement. person’s blood or OPIM need not be exposure will be against having their names The College of American Pathologists recorded unless they meet one or more on the OSHA log for scrutiny by any objected to the inclusion of hepatitis C of the general recording criteria, result employee or former employee of the in the list of bloodborne pathogen in a positive blood test (seroconversion), establishment. To openly list (on the OSHA diseases. They commented that ‘‘the or result in the diagnosis of a significant log) an individual with an infectious disease great majority of cases of hepatitis C will discourage some employees from illness by a health care professional. reporting exposures. It may also discourage lack any identifiable source of exposure. Otherwise, these exposure incidents are individuals from seeking treatment, which More cases of HCV infection occur considered only to involve exposure may be lifesaving or which may limit the among non-health care workers than and not to constitute an injury or spread of the disease. We oppose the among health care workers. To presume illness. In contrast, a needlestick development of any system which directly or that an individual who is infected with
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HCV acquired it on the job just because employees from one job to another to removal criteria as the correct recording they work in a health care setting is reduce exposure to hazardous level for various substances listed in unjustified’’ (Ex. 15: 37). On the other substances; job rotation is an proposed Appendix B (see, e.g., Exs. 22; hand, a commenter from Waukesha administrative method of reducing 15: 113, 155, 192, 199, 213, 242, 262, Memorial Hospital suggested that OSHA exposure that is permitted in some 272, 303, 304, 307, 326, 338, 340, 349). ‘‘should include all blood borne OSHA standards. Removal (job transfer) Many of these commenters suggested pathogen disease that develops as a of an asymptomatic employee for the medical removal criteria as a result of an exposure incident, not just administrative exposure control reasons substitute for the proposed recording HIV, Hep B, Hep C, even though those does not require the case to be recorded levels for lead and cadmium (Ex. 22; 15: are the major players in a hospital on the OSHA 300 Log because no injury 113, 155, 192, 340, 349). For example, setting. Since we must teach that there or illness—the first step in the Newport News Shipbuilding (Ex. 15: are many bloodborne pathogens, it recordkeeping process—exists. 113) said: doesn’t make sense to me to only record Paragraph 1904.9(b)(3) only applies to The proposed regulation requires recording some and not all’’ (Ex. 15: 436). OSHA those substances with OSHA mandated lead and cadmium cases based on biological believes that hepatitis C cases should, medical removal criteria. For injuries or action levels rather than on the onset of like other illness cases, be tested for illnesses caused by exposure to other illness. The purpose of the biological action recordability using the geographic substances or hazards, the employer level is to identify those employees who are presumption that provides the principal must look to the general requirements of at greater risk of reaching the limits for rationale for determining work- paragraphs 1910.7(b)(3) and (4) to medical removal, so that onset of illness may relatedness throughout this rule. OSHA determine how to record the days away be prevented. The use of biological action levels as the basis of defining and recording also agrees with the commenter from or days of restricted work. illness is inappropriate. Rather, lead and Waukesha Memorial Hospital that all The provisions of § 1904.9 are not the cadmium cases should be recorded when bloodborne pathogen diseases resulting only recording criteria for recording medical removal is required by the specific from events or exposures in the injuries and illnesses from these standard. workplace should be recorded. occupational exposures. These The Institute of Scrap Recycling Therefore, OSHA has modified the final provisions merely clarify the need to Industries, Inc. (Ex. 15: 192) added: regulatory text of paragraph record specific cases, which are often 1904.8(b)(4)(i) to reflect this decision. established with medical test results, This [proposed] statement clearly subverts that result in days away from work, the clear intent of the OSHA lead standard Section 1904.9 Additional Recording that a blood lead level of 50 µg/100 g of restricted work, or job transfer. The whole blood and not 40 µg/100 g of whole Criteria for Cases Involving Medical § 1904.9 provisions are included to Removal Under OSHA Standards blood is the criteria for medical removal and produce more consistent data and therefore also the criteria for documentation The final rule, in paragraph 1904.9(a), provide needed interpretation of the on the OSHA injury and illness log. Had the requires an employer to record an injury requirements for employers. However, if scientific evidence on which the OSHA lead or illness case on the OSHA 300 Log an injury or illness results in the other standard was based pointed clearly to 40 µg/ when the employee is medically criteria of § 1904.7 (death, medical 100 g of whole blood as the medical removal removed under the medical surveillance treatment, loss of consciousness, days standard and therefore the standard for requirements of any OSHA standard. documentation on the OSHA injury and away from work, restricted work, illness log the standard would have reflected Paragraph 1904.9(b)(1) requires each transfer to another job, or diagnosis as this. Therefore it would clearly subvert the such case to be recorded as a case a significant illness or injury by a purpose and scope of the OSHA lead involving days away from work (if the physician or other licensed health care standard, that was based on scientific employee does not work during the professional) the case must be recorded evidence and an exhaustive public comment medical removal) or as a case involving whether or not the medical removal period on the scientific data, to establish a restricted work activity (if the employee provisions of an OSHA standard have clear benchmark for a recordable event on the continues to work but in an area where been met. injury and illness log without the benefit of exposures are not present.) This The recording of OSHA mandated supporting scientific study and data and a public comment period on such information. paragraph also requires any medical medical removals was not addressed in removal related to chemical exposure to the 1996 recordkeeping proposal. OSHA The Institute of Scrap Recycling be recorded as a poisoning illness. has included the provisions of § 1904.9 Industries, Inc is incorrect about the Paragraph 1904.9(b)(2) informs in the final rule to address a deficiency lead standard’s determination of employers that some OSHA standards noted by a number of commenters, and recording criteria on the OSHA injury have medical removal provisions and as a replacement for criteria that were and illness log. The lead standard others do not. For example, the contemplated for the recording of (§ 1910.1025) does not specifically Bloodborne Pathogen Standard (29 CFR various ailments in proposed Appendix address the recording issue, but the lead 1910.1030) and the Occupational Noise B (61 FR 4063–4065). For example, R. L. standard does address the medical Standard (29 CFR 1910.95) do not Powell, Personnel Safety Manager for removal issue. The Institute points to require medical removal. Many of the Union Carbide Corporation, (Ex. 15: the benefit of using medical removal OSHA standards that contain medical 396) asked about medical removal and criteria for recording purposes, and removal provisions are related to restricted work: OSHA agrees that these criteria are specific chemical substances, such as useful for recordkeeping purposes. The How does this criteria [restricted work] lead (29 CFR 1901.1025), cadmium (29 apply to ‘‘medical removal?’’ Medical medical removal provisions of each CFR 1910.1027), methylene chloride (29 removal is sometimes mandated by other standard were set using scientific CFR 1910.1052), formaldehyde (29 CFR OSHA standards under certain conditions. A evidence established in the record 1910.1048), and benzene (29 CFR similar technique may also be used by a devoted to that rulemaking. OSHA takes 1910.1028). physician to conduct controlled tests to care when setting the medical removal Paragraph 1904.9(b)(3) addresses the assess the impact of workplace factors on a provisions of standards to ensure that issue of medical removals that are not condition such as a chemical sensitivity. these provision reflect a material harm, required by an OSHA standard. In some A number of commenters i.e., the existence of an abnormal cases employers voluntarily rotate recommended the use of medical condition that is non-minor and thus
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worthy of entry in the OSHA injury and other action levels that do not result in substantial impairment of a bodily illness records. disabling, serious or significant injuries or function. Although the medical removal Other commenters urged OSHA to use illnesses. On the other hand, Section 8(c)(3) provisions are included in OSHA’s the medical removal criteria as a does discuss—as a separate component of standards to encourage participation in replacement for all of proposed OSHA’s occupational safety and health statistics program—maintaining records of the medical program by employees and Appendix B. (see, e.g., Exs. 15: 199, 213, employee exposures to toxic materials and to prevent progression to serious and 242, 262, 303, 304, 307, 326, 338, 375). harmful physical agents pursuant to perhaps irreversible illness, they also For example, Southern Nuclear standards issued under Section 6 of the OSH reflect illnesses caused by exposures in Operating Company (Ex. 15: 242) stated Act. the workplace and are thus themselves that: This is a rulemaking about the statistical recordable. The workers are being program for tracking disabling, serious or Mercury, Lead, Cadmium, Benzene: In removed not only to prevent illness, but significant injuries and illnesses—nothing these cases, it is appropriate to distinguish to prevent further damage beyond what more and nothing less. We believe Congress between biological markers that merely point has already been done. Thus OSHA to exposure versus those that relate to illness determined that those are the criteria that does not agree that medical removal or disease. All of the recordability criteria for OSHA should utilize for this particular component of its statistical program. A measures are purely preventive in these substances are based on various nature; instead, they are also remedial ‘‘action’’ levels stated in their respective statistical program that aggregates disabling, serious or significant injuries and illnesses measures taken when specific biological OSHA regulations. Southern Nuclear test results indicate that a worker has Operating Company believes that the with other conditions and exposure appropriate criteria for recording these cases incidents, is contrary to both the been made ill by workplace exposures. as illnesses should be the ‘‘medical removal’’ congressional directive and the goal of this OSHA has therefore included section criteria stated in their respective regulations recordkeeping system. 1904.9 in the final rule to provide a coupled with a physician’s diagnosis of While these commenters are correct in uniform, simple method for recording a disease rather that the ‘‘action’’ levels as noting that the OSH Act does not variety of serious disorders that have stated in the proposal. These ‘‘medical specifically address medical removal been addressed by OSHA standards. removal’’ criteria are more indicative of levels and whether or not cases meeting The § 1904.9 provisions of the final rule disease or illness. If the ‘‘action’’ levels for these levels should be recorded, the Act cover all of the OSHA standards with these substances are used as the recording medical removal provisions, regardless criteria, the number of illnesses recorded on also does not exclude them. The Act the OSHA log would more accurately reflect does require the recording of injuries of whether or not those provisions are the numbers of workers covered by a given and illnesses that result in ‘‘restriction based on medical tests, physicians’ exposure control program as opposed to the of work or motion’’ or ‘‘transfer to opinions, or a combination of the two. number of illnesses that result from an another job.’’ OSHA finds that cases Finally, by relying on the medical inadequate program. involving a mandatory medical removal removal provisions in any OSHA The American Petroleum Institute are cases that involve serious, standard, section 1904.9 of the final rule (API) argued that: significant, disabling illnesses resulting establishes recording criteria for future standards, and avoids the need to API incorporates in its recommended in restriction of work and transfer to another job, or both. These medical amend the recordkeeping rule whenever Appendix B the recording of cases when OSHA issues a standard containing a medical removal is required by a specific restrictions result either in days away OSHA standard. API concedes this is from work (form of restriction) or days medical removal level. inconsistent with the concept of ‘‘serious or when the worker can work but is Section 1904.10 Recording Criteria for significant’’—and inconsistent with API’s restricted from performing his or her Cases Involving Occupational Hearing fundamental belief that actions by employers customary duties. Loss to prevent cases from becoming serious Other commenters objected to should not be recorded—because such The recording criteria employers recording medical removals because medical removals are by design preventive; should use to record occupational that is, intended to occur before a case they are precautionary in nature (Ex. 15: hearing loss on the OSHA becomes serious. However, API 146, 193, 258, 261, 305, 318, 346). The recordkeeping forms have been an issue acknowledges that it is extremely difficult to American Foundrymen’s Society, Inc. since OSHA first proposed to require define and get substantial agreement on any (Ex. 15: 346) argued that: straight-forward and verifiable criteria when hearing conservation programs for such cases are indeed ‘‘serious’’. Therefore, An abnormally high level of a toxic general industry employers (39 FR API has decided to recommend the medical- material in an individual’s blood (e.g., a lead 37775, October 24, 1974). Job-related removal criterion for Appendix B as the best level at or above the action level or the level hearing loss is a significant occupational on-balance solution for situations involving requiring ‘‘medical removal’’ under OSHA’s safety and health issue because millions toxic substance adsorption. (Ex. 15: 375) Lead Standard) is not and should not, in itself, be considered a recordable injury or of workers are employed in noisy A number of commenters opposed the illness. A preventive or prophylactic measure workplaces and thousands of workers use of mandatory medical removal such as medical removal (as opposed to a experience noise-induced hearing loss levels for injury and illness recording restorative or curative measure) is not and each year. Noise-induced hearing loss is purposes (see, e.g., Exs. 25; 15: 146, 193, should not be deemed medical treatment, a a serious and irreversible condition that 258, 261, 304, 305, 318, 346, 358). Many job transfer or restricted activity for purposes may affect the safety and well-being of argued that the OSH Act did not support of recordability in the absence of a diagnosis workers for the rest of their lives. of a substantial impairment of a bodily For the nation as a whole in 1997, the the use of medical removals (see, e.g., function. Exs. 25; 15: 258, 261, 304, 358). For BLS reported only 495 cases of example, the National Association of As stated previously, a ‘‘diagnosis of occupational hearing loss resulting in Manufacturers (NAM) commented: substantial impairment of a bodily days away from work (http:// function’’ is not required for a case to stats.bls.gov/case/ostb0684.txt; BLS There is no reference in Section 24(a) or meet OSHA recordkeeping criteria, nor Characteristics Data Table R15 of 04/22/ Section 8(c)(2) of the OSH Act to recording exposure incidents that do not result in is it a limitation to recordability under 1999). Hearing loss is not the type of disabling, serious or significant injuries or the OSH Act. Many injuries and occupational injury or illness that illnesses; or is there any reference in those illnesses meet the recording criteria of typically requires days away from work sections to medical removal provisions or the Act but lack diagnosis of a for recuperation, as is often the case for
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a fracture, fall, or carpal tunnel an employer in the construction attributed to noise exposure in that syndrome case. OSHA believes that industry, for example, who is aware that employer’s workplace. there are many cases of hearing loss— his or her work activities regularly If the employee has previously probably numbering in the thousands— generate high noise levels and who has experienced a recordable hearing loss, that occur every year as a result of job- audiometric data on the hearing level of the employer must compare the related noise exposure but do not result the employees exposed to those noise employee’s current audiogram with the in days away from work and are thus levels must record on the Log any STS employee’s revised baseline audiogram not captured in the BLS statistics. detected in those workers. OSHA (i.e., the audiogram reflecting the prior Because these hearing losses are often believes that this approach to the recorded hearing loss). For employees permanent, a large number of recording of work-related hearing loss who have had a previously recordable Americans, both working and retired, cases among these workers not covered hearing loss with that employer, the are currently suffering the effects of by the noise standard is appropriate final recordkeeping rule thus ensures hearing loss due to occupational because it is reasonable, protective, and that the employer does not record the exposure. administratively straightforward. same case of hearing loss twice, but that The changes being made to the OSHA Paragraph 1904.10(b)(1) of the final if a second STS occurs, the employer 300 form in the final rule will improve rule defines an STS as that term is will record that additional hearing loss. the quality of the data collected defined in the Occupational Noise Paragraphs 1904.10(b)(3) and (4) of nationally on this important Standard: as a change in an employee’s the final rule allow the employer to take occupational condition by providing hearing threshold, relative to the into account the hearing loss that occurs consistent hearing loss recording baseline audiogram for that employee, as a result of the aging process and to criteria, thus improving the consistency of an average of 10 decibels (dB) or more retest an employee who has an STS on of the hearing loss statistics generated at 2000, 3000, and 4000 hertz in one or an audiogram to ensure that the STS is by the BLS occupational injury and both ears. The Noise standard, at permanent before recording it. The illness collection program. National paragraph 1910.95(c)(1), describes the employer may correct the employee’s hearing loss statistics will also be employees in general industry who are audiogram results for aging, using the improved because OSHA has added a covered by the required hearing same methods allowed by the OSHA column to the OSHA 300 Log that will conservation program as follows: Noise standard (29 CFR 1910.95). require employers, for the first time, to Appendix F of § 1910.95 provides age separately collect and summarize data The employer shall administer a continuing, effective hearing conservation correction for presbycusis (age-induced specific to occupational hearing loss. program, as described in paragraphs (c) hearing loss) in Tables F–1 (for males) These changes mean that the BLS will through (o) of this section, whenever and F–2 (for females). Further, as collect hearing loss data in future years, employee noise exposures equal or exceed an permitted by the Noise standard, the both for cases with and without days 8-hour time-weighted average sound level employer may obtain a second away from work, which will allow for (TWA) of 85 decibels measured on the A audiogram for employees whose first more reliable published statistics scale (slow response) or, equivalently, a dose concerning this widespread of fifty percent. For purposes of the hearing audiogram registers an STS if the occupational disorder. conservation program, employee noise second audiogram is taken within 30 Paragraph 1904.10(a) of the final rule exposures shall be computed in accordance days of the first audiogram. The being published today requires an with appendix A and Table G–16a, and employer may delay recording of the without regard to any attenuation provided hearing loss case until the STS is employer to record an employee’s by the use of personal protective equipment. hearing test (audiogram) result if that confirmed by the second audiogram and result reveals that a Standard Threshold Paragraph 1904.10(b)( 2) of the final is, or course, not required to record the Shift (STS) for that employee has recordkeeping rule directs employers case if the second audiogram reveals occurred. If the employee is one who is how to determine whether a recordable that the STS was not permanent. covered by the medical surveillance STS has occurred. The paragraph deals Paragraph 1904.10(b)(5) of the final requirements of OSHA’s Occupational with two situations: (1) where the rule establishes how employers are to Noise standard (29 CFR 1910.95), employee has not previously determine the work-relatedness of compliance with the standard will experienced such a hearing loss, and (2) hearing loss cases. This paragraph generate the information necessary to where the employee has experienced a specifies that, in accordance with the make recording decisions. past recordable hearing loss. If the recordkeeping rule’s definition of work- If the employee is not covered by the employee has never previously relationship, hearing loss is presumed to 29 CFR 1910.95 noise standard, OSHA experienced a recordable hearing loss, be work-related for recordkeeping rules do not require the employer to the employer must compare the results purposes if the employee is exposed to administer baseline or periodic of the employee’s current audiogram noise in the workplace at an 8-hour audiograms, and the 1904 rule does not with the employee’s baseline time-weighted average of 85 dB(A) or impose any new requirements for audiogram, if the employee has a greater, or to a total noise dose of 50 employers to obtain baseline baseline audiogram. The employee’s percent, as defined in 29 CFR 1910.95. information where it is not already baseline audiogram could either be that (Noise dose is defined as the amount of required. However, some employers employee’s original baseline audiogram actual employee exposure to noise conduct such tests and acquire such or a revised baseline audiogram adopted relative to the permissible exposure information for other reasons. If the in accordance with paragraph (g)(9) of limit for noise; a dose greater than 100% employer’s workplace is a high noise 29 CFR 1910.95. For employees who represents exposure above the limit.) environment (i.e., has noise levels that have not previously had a recordable For hearing loss cases where the exceed 85 dBA) and the employer has hearing loss with that employer, the loss employee is not exposed to this level of the relevant audiogram information for in hearing is computed using the workplace noise, or where the employee an employee, the employer must record preemployment hearing test result so is not covered by the Occupational any identified work-related hearing loss that any hearing loss the employee may Noise standard, the employer must use equal to or greater than an OSHA- have experienced before obtaining the rules set out in § 1904.5 to defined STS on the Log. This means that employment with the employer is not determine if the hearing loss is to be
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considered work related for employers’ OSHA 200 Logs, but decided relationship if an employee was recordkeeping purposes. that the issue of the recording of hearing exposed on the job to an 8-hour time- Paragraph 1904.10(b)(6) allows the loss cases should be addressed through weighted average noise level equaling employer not to record a hearing loss notice-and-comment rulemaking at the 85 dB(A) (61 FR 4064). case if physician or other licensed time of the revision of the recordkeeping OSHA also raised several issues health care professional determines that rule. To address this topic in the interim related to hearing loss recording in the the hearing loss is not work-related or before the final recordkeeping rule was proposal (61 FR 4064): has not been aggravated by occupational issued, OSHA sent a memorandum to its The lowest action level in the noise noise exposure. This provision is field staff (June 4, 1991) to clarify its standard is an average shift of 10 decibels or consistent with the Occupational Noise enforcement policy on the recording of more at 2000, 3000 and 4000 hertz. OSHA is standard, and it allows the employer not occupational hearing loss and proposing the 15 decibel criteria for to record a hearing loss case that is not cumulative trauma disorders on the recordkeeping purposes to account for related to workplace events or OSHA 200 Log, on the grounds that variations in the reliability of individual exposures; examples of such cases are these cases ‘‘have received national audiometric testing results. hearing loss cases occurring before the OSHA asks for input on which level of a attention and require immediate shift in hearing should be used as a recording employee is hired or those unrelated to clarification.’’ The memorandum criteria; 10 decibels? 20 decibels? 25 workplace noise. specified that ‘‘OSHA will issue decibels? For each level, what baseline The recordkeeping provisions in citations to employers for failing to should be used? Preemployment (original) section 1904.10 of the final record work related shifts in hearing of baseline? Audiometric zero? Is adjusting for recordkeeping rule thus match the an average of 25 dB or more at 2000, presbycusis appropriate? provisions of the Occupational Noise 3000, and 4000 hertz (Hz) in either ear standard by (1) covering the same on the OSHA 200 Log.’’ The interim Comments on the Proposal employers and employees (with the enforcement policy was intended to OSHA’s proposed recording criterion exception of cases occurring among provide a conservative approach to the for hearing loss received more employees not covered by that standard issue until the recordkeeping comments than the proposed criterion whose employers have audiometric test rulemaking was completed. The interim for any other type of injury or illness results and high-noise workplaces); (2) policy stated that ‘‘The upcoming other than musculoskeletal disorders. using the same measurements of revision of the recordkeeping The hearing loss comments cover a wide workplace noise; (3) using a common regulations, guidelines and related variety of issues, including which definition of hearing loss, i.e., the STS; instructional materials will address the hearing test results should or should not (4) using the same hearing loss recordability criteria for all work related be considered an OSHA recordable measurement methods; (5) using the injuries and illnesses.’’ The memo also illness, the choice of baseline same definitions of baseline audiogram mentioned the use of standard threshold audiograms, retesting and persistence of and revised baseline audiogram; (6) shifts (STS) results, saying: hearing loss, determining work using the same method to account for Employers are presently required by 29 relatedness, the appropriateness of age correction in audiogram results; and correcting audiograms for aging (7) allowing certain temporary threshold CFR 1910.95 to inform employees in writing within 21 days of the determination of a (presbycusis), and the role of physicians shifts to be set aside if a subsequent Standard Threshold Shift (an average of 10 and other licensed health care audiogram demonstrates that they are dB or more at 2000, 3000 and 4000 Hz in professionals in the determination of not permanent or a physician or other either ear) and to conduct specific follow-up recordable hearing loss cases. The issues licensed health care professional finds procedures as required in paragraph (g) of the raised by commenters are organized by standard. Employers should be encouraged to they are not related to workplace noise topic and discussed below. exposure. use this information as a tracking tool for focusing noise reduction and hearing The Definition of Recordable Hearing The Former Rule protection efforts. Loss The regulatory text of OSHA’s former The Proposal There was limited support among recordkeeping rule did not specifically commenters for OSHA’s proposed 15 dB The proposed recordkeeping criterion address the recording of hearing loss shift recording criterion (see, e.g., Exs. for recording a case of hearing loss (61 cases, and the § 1910.95 Occupational 15: 50, 61, 84, 111, 113, 156, 188, 233, FR 4064) was an average shift of 15 Noise Standard does not address the 281, 289, 349, 407). However, many of decibels (dB) or more at 2000, 3000, and recording of hearing loss cases on the these commenters supported the use of 4000 hertz in one or both ears after the OSHA Log. However, the 1986 a 15 dB shift as the recording criterion employee’s hearing loss had been Recordkeeping Guidelines provided only if the final recordkeeping rule also adjusted for presbycusis (age-related clear advice to employers to the effect reflected other changes, such as hearing loss). OSHA proposed to permit that work-related hearing loss was a eliminating the correction for aging (see, employers to delete the record of the recordable disorder, that it could be e.g., Exs. 15: 50, 188, 407) or limiting hearing loss injury or illness if a retest either an injury or illness, depending on the recording of hearing loss to one case performed within 30 days indicated that the events and exposures causing the per worker per lifetime (Ex. 15: 349). the original shift was not permanent. hearing loss, and that all hearing loss For example, General Electric (Ex. 15: Once a 15 dB work-related shift had illnesses were required to be recorded, 349) suggested limiting the recording of occurred, however, OSHA proposed that regardless of the industry in which the hearing loss to one case per employee: employer worked (Ex. 2, p. 4). However, the employee’s baseline audiogram (for the Guidelines did not provide specific recordkeeping purposes) be adjusted to GE supports recording an average standard guidance on the kinds of hearing test or reflect that loss. A subsequent threshold shift of 15 decibels (dB) or more at audiogram would have to reveal an 2000, 3000, and 4000 hertz in one or both audiogram results that would constitute ears, adjusted for presbycusis and with a a recordable, work-related hearing loss. additional 15 dB shift from the new or deletion upon retest as described. The In 1990, OSHA considered issuing a revised baseline value to be considered establishment of the recording criteria at a Compliance Directive addressing the a new hearing loss injury or illness. level slightly higher than STS requiring recording of hearing loss cases on OSHA proposed to presume work- action in the noise standards allows the
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employer the opportunity to take action the onset of any disabling illness or Commenting that a 20 dB shift is two before the STS progresses to a recordable injury, and each is inconsistent with times the action level of a 10 dB shift injury. GE recommends, however, that, to OSHA’s acknowledgment in Forging prescribed by OSHA’s Occupational reduce the administrative burden, the Indus. Ass’n v. Secretary of Labor, 773 Noise standard (29 CFR 1910.95), Brown baseline not be revised after the shift, that the original baseline be maintained and the F.2d 1436, 1447 n.18 (4th Cir. 1985), and Root, Inc. suggested that this level hearing loss only be recorded on the initial that no injury results until a person ‘‘would allow for a program to be occasion of the 15 dB shift. experiences a 25 dB loss.’’ (OSHA does initiated [at the action level] and not agree with this characterization of working before a case becomes George R. Cook and Omar Jaurez, its position.) recordable. If the program, however, is occupational audiologists (Ex. 15: 50), Similarly, the Monsanto Company not as effective as desired, the supported the 15dB level only if no commented ‘‘OSHA acknowledges in recordable level would require that the adjustment for aging was allowed: the Hearing Conservation Amendment case be logged’’ (Ex. 15: 423). Finally, [t]he Noise Standard has two loopholes in Standard that STS will occur and Union Carbide Corporation argued that the identification of STS. First it allows for nothing is required to be done to using a 20 dB shift as a recording revision of baseline when the loss is prevent it from occurring. Therefore, it criterion. persistent. The Standard does not identify cannot be a measure of significantly [i]s in the direction of simplicity since this persistence and it is possible to revise a impaired functional hearing capacity. In baseline early and subsequent STSs would be is an even multiple of 10 dB, which is the postponed. The second loophole is the the preamble to this rule, OSHA cites standard threshold shift and the action level allowance of presbycusis which hides several excerpts of testimony supporting for triggering certain hearing conservation changes in hearing. Therefore, a criteria this position’’ (Ex. 15: 295). requirements. Having an even multiple which separates the recording criteria from Vulcan Chemicals commented that it makes it much easier to track two different STS and protects the required STS follow-up ‘‘believes the present requirement [of a baselines one for the hearing conservation is necessary. A 20 or 25 dB criteria is felt to hearing level shift of 25 dB for requirements and one for recordkeeping be too much change. recordkeeping] is protective and requirements. Our experience has shown that it is an administrative nightmare to track 10 Most of the commenters, however, did recommends that the recordable criteria should remain at 25 decibels’’ (Ex. 15: dB baselines for hearing conservation and 25 not support the proposed 15 dB dB baselines for recordkeeping (Ex. 15: 396). criterion (see, e.g., Exs. 22; 26; 15: 25, 171). New England Power justified its Industrial Health, Inc. (Ex. 15: 84), a 45, 108, 110, 119, 137, 146, 154, 171, support for a 25 dB shift as the mobile audiometry vendor, supported 177, 201, 203, 213, 218, 246, 251, 262, recording criteria with the comment that either a 10 dB or 15 dB persistent shift 278, 295, 310, 329, 331, 334, 343, 347, there ‘‘is far too much variability with as the recording criterion and provided 348, 350, 358, 369, 394, 396, 405, 424). an individual subject and the equipment an analysis, using their data base of over Most of these commenters to ensure accuracy’’ (Ex. 15: 170), and 4 million audiograms. Their comments recommended a recording criterion of a Tosco, arguing in a similar vein, on the merits of the 10 dB and 15 dB 25 dB shift, i.e., the criterion used in commented that the ‘‘existing 25 dB options, and whether each change is OSHA’s interim enforcement policy shift provides an easily identifiable significant and noise related, are: (see, e.g., Exs. 22; 15: 45, 119, 137, 146, measurement for determining injuries, 154, 171, 177, 201, 203, 218, 246, 262, and also provides for variation in Noise relatedness: Using the OSHA shift 278, 329, 331, 334, 343, 348, 358, 395, background noise during testing, formula across 2, 3 & 4 KHz (including 424). Con Edison wrote ‘‘[l]owering the variability of the employee’s health/ OSHA’s corrections for aging), a persistent hearing capability on the day being shift of either 10dB or 15dB shows a strong dB shift criteria to 15 dB [from 25 dB] correlation with audiogram patterns typical would result in recording cases which tested, as well as variation in the employee’s home/social lifestyle which of exposure to noise (our samples showed do not meet the clinical definition of more than 85 percent of such shifts appeared hearing loss’’ (Ex. 15: 213), and the may contribute to hearing loss’’ (Ex. 15: 246). The Can Manufacturers Institute to be noise related, and most of the Amoco Corporation testified that OSHA remainder had been flagged by the reviewing commented that a 25 dB shift criterion should ‘‘[r]aise the hearing loss limit to audiologist as either medical referrals or ‘‘would identify as consequential a more appropriate indication of cases where the employee had given a change in hearing acuity that is material impairment’’ (Ex. 22). The medically related explanation for the shift in irreversible and minimize multiple American Iron and Steel Institute (Ex. hearing). Hence, we conclude that a recording of change over time’’ (Ex. 15: persistent shift based on the OSHA shift 15: 395) commented: 331). formula with age correction, whether 10 dB The appropriate recording trigger should There was also support in the or 15 dB, is a reasonably accurate indication be the loss of hearing recognized by the rulemaking record for using a 20 dB of a hearing change due to noise exposure American Medical Association (AMA) as the shift as a criterion for recording hearing provided that medically related shifts are lowest indicator of any material impairment loss (see, e.g., Exs. 15: 108, 295, 396, excluded. to the employee’s hearing. According to the 405, 423). Most of the reasons given for Significance of change: We calculated AMA, a person has suffered material historic shifts based on both a 10 dB shift and impairment when testing reveals a 25 dB supporting this level were the same as a 15 dB shift on a sample industrial database. average hearing loss from audiometric zero at those provided as support for a 25 dB The following results are for persistent shifts 500, 1000, 2000, and 3000 hertz. OSHA itself shift recording criterion. For example, only. The results showed that 15 dB shifts has recognized that this is the lowest level of the Westinghouse Electric Corporation occurred less often than 10 dB shifts (as hearing loss that constitutes any material commented that a ‘‘20 decibel shift would be expected), with approximately 70% hearing impairment. see 46 Fed. Reg. 4083 would not only allow for variances in as many 15 dB shifts as 10 dB shifts. When (Jan. 18, 1981). Below that level, an employee individual audiometric tests, but would both shifts occurred for an employee, most has suffered no noticeable injury or illness. also allow for the fact that workplace (over 80%) of the 15 dB shifts occurred at The American Iron and Steel Institute noise levels are quite often more exactly the same test dates as did the 10 dB shifts, although in some cases (less than disagreed that a 10 or a 15 dB shift in controlled and less severe than noise 20%) the 15 dB shifts occurred at later times. hearing should be recorded, stating that levels in the home environment (e.g., In general, the agreement was surprisingly ‘‘While a 15 dB shift is arguably closer trap shooting, stereo sound levels, lawn good—much better than we had expected. In to a serious injury than a 10 dB shift, mowing, and other types of non job- most (about 80%) of the instances where a 10 neither is a principled approximation of related activities)’’ (Ex. 15: 405). dB shift occurred but a 15 dB shift did not,
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the significance of the 10 dB shift was because the ’baseline’ is revised at a 10 dB impairment should be used in recording questionable when the actual data were shift. To avoid this situation, an employer hearing losses versus a threshold shift as examined. Less than 5% of what we judged would have to establish 2 different baselines, compared to a baseline’’ (Ex. 15: 377). to be significant 10 dB shifts were missed by one for the noise standard provisions, and OSHA does not agree with this the 15 dB rule. one for the recordkeeping rule provisions. As a result, our analysis indicates the This situation is unacceptable. We commenter, however, because, as the following (based again on all shifts having recommend that standard threshold shifts of record in the Noise standard rulemaking been demonstrated to be persistent): 10 dB be used as the recordability criteria, indicates, permanent threshold shifts do a. A persistent 10 dB shift with age since it is consistent with the 1910.95 noise indicate a non-minor impairment, correction is a reasonably good yardstick for standard’’ (Ex. 15: 310). although not all STSs are disabling. significant change due to noise, although it The Coalition to Preserve OSHA and As is the case for many OSHA rules, does flag some changes which are of NIOSH and Protect Workers’ Hearing the 1981 Noise standard was challenged questionable significance (perhaps as high as in the courts, which stayed several 20% of the shifts). (Exs. 26, 42) recommended a recording policy that would capture instances of provisions. In 1983, OSHA revised the b. A persistent 15 dB shift with age hearing conservation amendment to correction is a better yardstick for significant age-corrected STS, as defined in the change due to noise. In our tests it produced OSHA noise standard, that are revoke many of the provisions stayed by the court, lift an administrative stay roughly 70 percent as many shifts as the 10 confirmed as persistent and that are implemented by OSHA, and make dB rule, but the difference was largely 10 dB determined to be work-related. The technical corrections (48 FR 9738). One shifts of questionable significance. It did Coalition’s comments are of particular report some changes later than the 10 dB rule of those provisions involved the interest because its members include and missed a few shifts (about 5%) which we definition of STS, which was renamed professional and scientific organizations judged to be of significance. a ‘‘standard’’ rather than ‘‘significant’’ dedicated to the issue of studying and threshold shift to help differentiate the Finally, there was strong support in preventing hearing loss. Member two separate methods used to calculate the rulemaking record for using a 10 dB associations include the American the STS in the 1981 and 1983 rules. shift (also identified as a standard Speech-Language-Hearing Association, Although OSHA changed the threshold shift or STS in the OSHA the American Industrial Hygiene Noise standard) as a recording criterion calculation method used to establish an Association, the National Hearing STS in 1983, the role and importance of for hearing loss (see, e.g., Exs. 26; 42; 15: Conservation Association, the 25, 110, 251, 310, 347, 350, 369, 394). the STS concept in the context of a Acoustical Society of America, the hearing conservation program was For example, the American College of Council for Accreditation in Occupational and Environmental unchanged. The main reason for Occupational Hearing Conservation, changing the definition of STS in the Medicine noted that the ‘‘STS is the Self Help for Hard of Hearing People, earliest reliable indication of 1983 standard was to simplify the Inc. and the Institute for Noise Control original calculation and address the measurable hearing loss for practical Engineering. These groups represent purposes. This is the earliest practical concerns of employers and audiology well over 100,000 audiologists, professionals who wished to avoid level of early detection and prevention acousticians, speech-language of further loss is quite possible if the using a computer to calculate an STS. pathologists, industrial hygienists, The standard requires employers to take correct measures are taken’’ (Ex. 15: safety and health professionals, and 251). The Ford Motor Company agreed. follow-up actions when an STS is persons with hearing loss (Ex. 42, page identified, notify the affected employee, Commenting that it currently records 1). any work-related hearing loss that evaluate and refit hearing protectors, The Coalition provided the following retrain the employee, and, if necessary, results in an average loss of 10 dB or reasons for relying on a 10 dB shift in more, the company noted that refer the employee for medical hearing as an OSHA recordable evaluation. ‘‘[r]ecording hearing loss in its early condition (Ex. 42, pp. 9–13). stage provides Ford the information to The arguments put forward by the correct hazardous conditions and 1. An allowance in the recording criteria Coalition to Preserve OSHA and NIOSH prevent serious impairment to an for test-retest variability is inappropriate (i.e. and Protect Workers’ Hearing (Exs. 26, OSHA proposed the 15 dB criterion rather 42) are, in OSHA’s view, compelling employee’’ (Ex. 15: 347). Ford further than the 10 dB criterion ‘‘to account for stated that its ‘‘method of recording reasons for requiring employers to variations in the reliability of individual record on their Logs any case of work- occupational hearing loss is consistent audiometric results.’’ related hearing loss that reaches the with the requirement of the Hearing 2. An age-corrected STS is a large hearing Conservation Amendment which change that can affect communicative level of an STS. OSHA is particularly requires notification to the employee.’’ competence. persuaded by the Coalition’s argument that ‘‘An age-corrected STS is a large The Laborer’s Health and Safety Fund of 3. Typical occupational noise exposures do hearing change that can affect North America also pointed out the not justify a larger shift criterion. 4. Recording OSHA STSs reduces the communicative competence’’ because inconsistency between OSHA’s recordkeeping burden to industry. an age-corrected STS represents a proposed recording criterion in the 5. Current OSHA STS rates are not high. significant amount of cumulative recordkeeping rule and the criterion in 6. Recording OSHA STSs will promote hearing change from baseline hearing OSHA’s occupational noise exposure effective hearing conservation programs. levels. In the words of the Coalition, standard. The Fund commented: Other commenters proposed still ‘‘For an individual with normal hearing ‘‘The noise standard defines a 10 dB shift other criteria for recording hearing loss. on the baseline audiogram, STS usually at 2, 3, and 4K as a standard threshold shift For example, Detroit Edison stated that involves age-corrected shifts of 15–20 and allows a revision of the baseline should a shift in hearing level should not be dB at 3000 and 4000 Hz. For an the shift persist. Along comes the used as a recording criterion for hearing individual with pre-existing high- recordkeeping rule which says that a 15 dB shift is recordable, and a baseline revision loss because this ‘‘is not indicative of an frequency hearing loss on the baseline, (for recordkeeping purposes) can be made illness or injury, but only an indication STS usually involves substantial when a 15 dB shift occurs. This situation is that someone has had a slight change in progression of the hearing loss into the an administrative nightmare. It is possible their ability to hear’’ and proposed critical speech frequencies. The absolute that a hearing loss will never be recordable instead that ‘‘the level of hearing shift values before age corrections are
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considerably larger.’’ The Coalition also shift increases the reliability of preamble to the Hearing Conservation stressed that the method of averaging audiometric measurements, OSHA has Amendment, OSHA found that a 10 dB hearing loss at several frequencies, as is not adopted NIOSH’s recommendation shift in hearing threshold is significant required to determine an STS under the that the hearing loss criterion should be because it is outside the range of OSHA Noise standard, tends to a 15 dB shift at any frequency (Ex. 15: audiometric error and ‘‘it is serious ‘‘obscure the large hearing shifts at 407). Single frequency calculations are enough to warrant prompt attention’’ individual frequencies which usually less reliable and may therefore lead to (46 FR 4144). The 1983 preamble occur before the average changes by a the under- or over-recording of hearing reinforces these findings. It states that: specified amount’’ (Ex. 42, p. 10). loss cases compared with the STS Correctly identifying standard threshold OSHA has rejected, for recordkeeping method of averaging loss over several shifts will enable employers and employees purposes, the use of the 25 dB shift from frequencies. to take corrective action so that the audiometric zero prescribed by the In the final recordkeeping rule, OSHA progression of hearing loss may be stopped American Medical Association has chosen to use the Occupational before it becomes handicapping. Moreover, a Guidelines for Material Impairment. The Noise standard’s STS—an average shift standardized definition of STS will ensure AMA’s 25 dB criterion is intended to be in either ear of 10 dB or more at 2000, that the protection afforded to exposed used to determine the level at which the 3000, and 4000 hertz—as the shift in employees is uniform in regard to follow-up employee should be compensated for hearing that must be recorded by an procedures. * * * OSHA reaffirms its position on the ideal hearing loss-related medical bills or lost employer on the OSHA log as a hearing time. In the context of occupational criterion for STS which was articulated in loss case. An STS clearly represents a the January 16, 1981 promulgation (see 46 FR noise exposure, hearing loss of this non-minor injury or illness of the type 4144). The criterion must be sensitive enough magnitude reflects a serious impairment Congress identified as appropriate for to identify meaningful changes in hearing of health or functional capacity. As recordkeeping purposes. The final rule level so that follow-up procedures can be discussed in the Legal Authority allows the employer to adjust an implemented to prevent further deterioration section, however, the Congress intended employee’s hearing test results for of hearing but must not be so sensitive as to the OSHA recordkeeping system to presbycusis (age), to retest within 30 pick up spurious shifts (sometimes referred capture all non-minor occupational days (the employer is not required to to as ‘‘false positives’’). In other words, the injuries and illnesses, and OSHA criterion selected must be outside the range record if there is a retest within 30 days of audiometric error (48 FR 9760). believes that an STS loss of hearing and the retest refutes the original test), represents such an injury. An STS is an and to have the test results evaluated by The Fourth Circuit rejected an abnormal condition that should be a physician or other licensed health care employer’s argument that a 10 dB shift recorded because it represents a professional. Using the STS as the in hearing threshold is insignificant. In material loss in hearing ability, beyond recording criterion also meets one of the its decision upholding OSHA’s use of a the normal effects of aging. primary purposes of this rulemaking, to 10 dB STS as an action level in the OSHA has also rejected the 15 dB and improve the simplicity of the overall Hearing Conservation Amendment, the 20 dB shift recording options, for recordkeeping system. Relying on the court found that: several reasons. First, although OSHA Noise standard’s STS shifts avoids the [t]he amendment is concerned with suggested in the proposal that an complexity referred to by many protecting workers before they sustain an additional 5 dB beyond the 10-dB STS commenters (see, e.g., Exs. 15: 310, 396) irreversible shift. Consequently, it was shift was needed to account for of maintaining multiple baselines for incumbent upon the Agency to select a variability in testing, this has not been the Noise standard and the OSHA trigger level that would protect workers by supported by the record. As the Medical recordkeeping rule. As the Laborers’ providing an early warning yet not to be so Educational Development Institute (Ex. low as to be insignificant or within the range Health & Safety Fund of North America of audiometric error. We find that the Agency 15: 25) stated: ‘‘[t]est/re-test reliability of (Ex. 15: 310) commented: 5 dB is well established in hearing struck a reasonable balance between those testing. For example, the Council on The noise standard defines a 10 dB shift at concerns. * * * Accrediting Occupational Hearing 2,3, and 4K as a standard threshold shift and Forging Indus. Ass’n v. Secretary of allows a revision of the baseline should the Conservationists maintain this range of shift persist. Along comes the recordkeeping Labor, 773 F.2d 1436, 1450 (1985)(en reliability in their training guidelines rule which says that a 15 dB shift is banc). and this is recognized in American recordable, and a baseline revision (for OSHA believes that many of the National Standard Method for Manual recordkeeping purposes) can be made when reasons stated in the 1983 preamble Pure-Tone Threshold Audiometry, a 15 dB shift occurs. This situation is an make the STS an appropriate recording S3.21—1978 (R1992).’’ administrative nightmare. It is possible that criterion for recordkeeping purposes. The Coalition to Preserve OSHA and a hearing loss will never be recordable For example, employers are familiar NIOSH and Protect Workers’ Hearing because the baseline is revised at a 10 dB with the STS definition, which is also (Ex. 26) provided additional shift. To avoid this situation, an employer would have to establish 2 different baselines, sensitive enough to identify a non- justification for dropping the proposed one for the noise standard provisions, and minor change in hearing. Use of the STS rule’s 5 dB reliability margin: ‘‘The one for the recordkeeping rule provisions. also reduces the confusion that would allowance for a retest (or even multiple This situation is unacceptable. We arise were OSHA to require employers retests) should largely eliminate recommend that standard threshold shifts of to maintain two baselines: one required spurious shifts due to measurement 10 dB be used as the recordability criteria, by the Occupational Noise standard and error in audiometry. In fact, one of since it is consistent with the 1910.95 noise one required for recordkeeping OSHA’s original reasons for choosing a standard. purposes. frequency-averaged shift (the OSHA Several commenters (see, e.g., Exs. 15: STS) as a trigger level for employee 295, 395) argued that OSHA itself had Baseline Audiogram follow-up was that the frequency discounted the significance of the 10 dB In its proposal, OSHA also asked for averaging process reduces the influence STS during the 29 CFR 1910.95 comment on which baseline should be of random audiometric variability.’’ rulemaking. OSHA disagrees with this used as the starting point in determining Because reliance on a frequency- assessment of the Agency’s position on recordable hearing loss. There was averaged rather than single frequency the importance of an STS. In the 1981 strong support in the record for using
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the preemployment or original baseline recent recorded hearing loss if the loss noted in serial audiograms, there is no for this purpose (see, e.g., Exs. 26; 15: worker has experienced a prior recorded scientifically valid way to correct the data for 25, 50, 78, 108, 110, 111, 113, 146, 154, hearing loss case. non occupational hearing loss. * * * It is 163, 181, 188, 218, 233, 262, 281, 295, inappropriate use of statistics to apply Correction for Aging median values from one population on a 308, 348, 354, 402, 405), although a few different population when no foundation has commenters proposed using In its proposal, OSHA included been developed to justify such manipulation audiometric zero (see, e.g., Ex. 15: 395). provisions allowing the employer to of data. One commenter proposed that the adjust the results of audiograms for OSHA recognizes that using the reviewing professional should presbycusis (age-related hearing loss), correction for presbycusis when determine the appropriate baseline on a and asked for comment on whether an interpreting audiogram results is case-by-case basis (Ex. 15: 175), and age correction is appropriate. The vast controversial among experts in the field another proposed that an audiologist majority of commenters agreed that it of audiology and that NIOSH has should determine when a change in was (see, e.g., Exs. 26; 42; 15: 39, 45, 84, developed a new criteria document on baseline audiograms is warranted (Ex. 113, 137, 163, 175, 201, 203, 262, 278, occupational noise exposure (‘‘Criteria 15: 203). Some commenters supported 281, 283, 331, 347, 348, 396, 405). As for a Recommended Standard; adjusting the employee’s baseline the Westinghouse Hanford Company Occupational Noise Exposure, Revised audiogram when a recordable hearing commented, ‘‘[t]he adjusting for loss case has been identified (see, e.g., presbycusis is appropriate as the Criteria, 1998; U.S. Department of Exs. 26; 15: 25, 108, 111, 146, 163, 290, deterioration of the hearing related to Health and Human Services, Centers for 354, 405, 407). age is an important factor in Disease Control and Prevention, OSHA agrees with those commenters determining the amount of hearing loss National Institute for Occupational who argued that the preemployment or related to workplace hazards’’ (Ex. 15: Safety and Health; June 1998) which at original baseline should be used as the 108). Julia Royster, Ph.D. CC-A/SLP, present does not recommend applying benchmark from which to determine agreed with this view, stating that ‘‘Age- presbycusis correction values to actual recordable hearing loss. Using the related hearing loss is inevitable. There employee audiometric data. However, preemployment or original baseline are individual differences in the rate of since the Occupational Noise standard automatically corrects for any hearing age-related hearing change and the itself permits employers to adjust the loss that may have occurred before the amount of hearing loss eventually interpretation of audiograms for the worker was employed with his or her shown due to presbycusis. However, effects of aging, it would be inconsistent current employer and will prevent the most people will eventually develop and administratively complex to recording of cases of nonoccupational age-related hearing changes equivalent prohibit this practice in the hearing loss. This policy is also to one or more OSHA STSs. Therefore, recordkeeping rule. Accordingly, consistent with OSHA’s Occupational presbycusis corrections are necessary to § 1904.10(b)(3) allows the employer to Noise standard and therefore increases avoid attributing age-related hearing adjust for aging when determining the the simplicity of the recording system. change to occupational causes’’ (Ex. 26, recordability of hearing loss. The OSHA also agrees that an employee’s Appendix C). adjustment is made using Tables F–1 or baseline audiogram should be adjusted However, some commenters did not F–2, as appropriate (table F–1 applies to if that employee experiences a agree that the use of age corrections was men and F–2 applies to women), in recordable hearing loss. Revising the appropriate (see, e.g., Exs. 15: 50, 110, Appendix F of 29 CFR 1910.95. baseline by substituting the revised 188, 233, 407). For example, However, use of the correction for aging audiogram for the original audiogram Occupational Audiologists (Ex. 15: 50) is not mandatory, just as it is not after an STS has occurred will avoid a pointed out that ‘‘[w]hen the tables [in mandatory in the Noise standard itself. second or third recording of the same 29 CFR 1910.95] are applied they ignore Persistence of Hearing Loss STS. On the other hand, recording any hearing loss that may be present as hearing loss in a given worker only once a result of medical pathology or noise Yet another issue surrounding the would overlook the additional hearing exposure prior to the baseline hearing recording of hearing loss involves the loss that may occur, either in the same test,’’ and therefore the ‘‘use of the timing of the recording of a case on the or the other ear, and would not be presbycusis tables hides significant OSHA forms when an audiogram has consistent with the definition of a changes in hearing thus delaying the been performed on an employee. The ‘‘new’’ case in Section 1904.6 of this STS required procedures of follow-up, issue is whether the results of an rule, which requires employers to notification, fitting/re-fitting, educating audiogram should be recorded within evaluate any ‘‘new’’ case that results and requiring the wearing of hearing the interval for recording all cases, or from exposure in the workplace for protection for some individuals.’’ whether the audiogram should be recordability. Subsequent STS findings, Similarly, John P. Barry (Ex. 15: 110), verified with a retest before recording is i.e., further 10-dB shifts in hearing level, commented: required. The proposed rule would have are more serious events than the first required the recording of hearing loss STS, because of the nonlinearity of the At the 4000 Hz test frequency where cases within 7 calendar days of the first occupational hearing loss first occurs, audiogram, but then would have dB rating system and the progressive application of the presbycusis correction may severity of increasing hearing loss. A significantly reduce the noted threshold shift permitted employers to remove, or line second or third STS in a given worker relative to the employee’s baseline out, a hearing loss case on the Log if a is therefore also treated under the audiogram. However, the changes at 2000 second audiogram taken on that recordkeeping system as a recordable and 3000 Hz often are equal to or less than employee within 30 days failed to show illness on the OSHA 300 Log. The final the presbycusis corrections. When these that the STS was persistent. Several rule makes this clear by requiring the corrections are applied to actual audiometric commenters supported immediate employee’s audiogram to be compared data, they mask the effects of occupational recording with the 30 day retest noise and hinder early detection of noise- to the preemployment baseline induced hearing loss. While hearing loss due provision (see, e.g., Exs. 15: 295, 350, audiogram when the worker has not to aging (presbycusis) and hearing loss due 394, 407). The Building and experienced a recordable hearing loss, to the non occupational environment Construction Trades Department of the and to the audiogram reflecting the most (sociocusis) may account for some of hearing AFL–CIO (Ex. 15: 394) noted that if a
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retest was not performed the case would in recording unconfirmed shifts does not paragraph 1904.10(b)(4), employers are never be recorded: appear justified and creates additional permitted, if they choose, to retest the burdens for the employer. The coalition employee to confirm or disprove that an We support OSHA, however, on requiring recommends the following more efficient and cases to be recorded and then lined out later STS reflected on the first audiogram was suitably protective approach: attributable to a cold or some other if the loss does not persist. In construction, —Only confirmed (i.e., persistent) work- where a worker may never get a follow-up related STSs are to be recorded on Form extraneous factor and was not test because they have moved to a different 300, unless a follow-up audiogram is not persistent. If the employer elects to worksite, the case needs to be recorded and administered. retest, the employer need not record the presumed work-related. For construction —If a follow-up audiogram is not case until the retest is completed. If the workers that is a very good presumption to administered within 30 days of the initial make. These changes should lead to more retest confirms the hearing loss results, determination of STS, or if the follow-up accurate reporting of hearing loss among the case must be recorded within 7 construction workers. audiogram confirms the STS, then the shift calendar days. If the retest refutes the is considered persistent, and if determined original test, the case is not recordable, Other commenters, however, did not to be work-related, must be recorded on and the employer does not have to take agree with OSHA’s proposal and Form 300. * * * further action for OSHA recordkeeping believed the shifts should be confirmed —If a follow-up audiogram given within 30 days of the initial determination of the STS purposes. The 30 day limit in the final before recording on the Log is required recordkeeping rule is consistent with (see, e.g., Exs. 26; 42; 15: 50, 84, 175, does not confirm the STS, nothing is to be recorded on Form 300. the 30 day retest provision of 181, 188, 201, 203, 331). Impact Health § 1910.95(g)(5)(ii), which allows the The Coalition also recommended that Services (Ex. 15: 175) expressed its employer to obtain a retest within 30 employers be allowed to remove, or opinion that days and consider the results of the line-out, recorded hearing losses that are The new hearing loss criterion should retest as the annual audiogram if the require recording of only confirmed work- not confirmed by subsequent retesting, STS recorded on the first test is related shifts in hearing. * * * There is no or are found not to be work-related, determined not to persist. question that it is in the best interest of the within 15 months of the initial STS OSHA believes that the 30 day retest hearing conservation program to identify identification, at the discretion of the shifts in hearing while they are still option allows the employer to exclude reviewing professional. Such a false positive results and temporary temporary so that follow-up action can be provision would allow employers to taken immediately to prevent permanent threshold shifts from the data while hearing loss. * * * However, requiring remove cases if the next annual ensuring the timely and appropriate companies to record all shifts (both audiogram showed an improvement in recording of true positive results. temporary and persistent) within six hearing (Exs. 26; 42). Adding language to the final (proposed seven) days may have an Several commenters discussed the recordkeeping rule to specify different unintended punitive effect. Companies are length of time OSHA should allow procedures, depending on whether the usually hesitant to record any incidents on between the audiogram on which the Form 200 (proposed Form 300), even if employer chooses to conduct a re-test STS was first detected and the within 30 days, adds some complexity lining-out the event at a later date is an confirmatory retest. The International option. Therefore, disallowing the OSHA 30- to the final rule, but OSHA finds that day retest for recording purposes may have Dairy Food Association suggested that this added complexity is appropriate a negative impact on programs which are allowing only a 30-day period ‘‘may not because it will reduce burden for some designed to prevent hearing loss. By be feasible in many situations where employers and improve the accuracy of requiring recording of all shifts within seven mobile van testing is utilized. * * * the hearing loss data. days, companies may actually discontinue Thirty days are easily consumed during programs of conducting annual testing during the compiling, mailing, interpreting, Work-Relationship the work shift, due to a reluctance to identify mailing, evaluation process’’ (Ex. 15: One of the greatest sources of (and record) temporary threshold shift. 203). The Association recommended controversy in the record concerning To address the problem identified by instead that ‘‘OSHA increase the current OSHA’s proposed criterion for recording the Building and Construction Trades requirement of 30 days to 45 days to hearing loss relates to the presumption Department of the AFL–CIO, Impact allow employers and employees to of work-relationship in cases where an Health Services recommended that ‘‘[i]f obtain a re-test following an annual employee is exposed to an 8-hour time- a follow-up audiogram is not audiogram’’ (Ex. 15: 403). For the same weighted average sound level of noise administered within 30 days of reasons, the Can Manufacturers Institute equaling or exceeding 85 dB(A) (61 FR determination, or if the follow-up recommended that retests be permitted 4064). One commenter supported the audiogram confirms the shift, then the within 90 days of the original test, recordkeeping proposal’s approach on shift is considered persistent and if noting that ‘‘[t]here is no magic this matter. NIOSH (Ex. 15: 407) determined to be work related, must be regarding the current 30 day span’’ (Ex. recommended that work-relationship be recorded on Form 300’’ (Ex. 15: 175). 15: 331). Industrial Health Inc. presumed ‘‘if an employee is exposed to The American Association of commented that ‘‘there’s no rush’’ to an 8-hour time-weighted sound level of Occupational Health Nurses (Ex. 15: retest and stated its preference for a time noise equaling or exceeding 85 dB(A) or 181) noted that it ‘‘would require less lapse longer than 30 days ‘‘[i]n order to to peak sound levels equaling or paperwork to record the hearing loss allow temporary [hearing loss] effects to exceeding 115 dB(A) regardless of after confirmation by a re-test in thirty subside’’ (Ex. 15: 84). NIOSH (Ex. 15: brevity or infrequency.’’ Several days, rather that recording the initial 407) proposed that a confirmatory retest commenters advocated presuming work- shift and then having to ‘line out’ the be permitted at any time provided that relatedness if the employee experienced entry if the re-test was not indicative of the retest was preceded by a 14-hour occupational exposures to 85 dB unless any hearing loss.’’ period of quiet. medical evidence showed that the The Coalition to Preserve OSHA and After a review of the record on this hearing loss was not related to work NIOSH and Protect Workers’ Hearing point, OSHA has decided to require that (see, e.g., Exs. 15: 39, 50, 146, 171, 188). (Exs. 26; 42) stated: any retest the employer chooses to For example, BF Goodrich (Ex. 15: 146) This urgency [as reflected in the proposal’s perform be conducted within 30 days. asked that ‘‘[O]SHA give employers the provision requiring recording within 7 days] Accordingly, in the final rule, at opportunity to refute the work
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relationship for employees found to to an 8-hour time-weighted sound level separately for recording purposes. have other than noise-induced hearing of noise equaling or exceeding 85 dB(A) Impact Health Services, Inc. (Ex. 15: loss. If the employee is examined by an or to peak sound levels equaling or 175) recommended that proposed otolaryngologist or other qualified exceeding 115 dB(A) regardless of Appendix B specify that shifts in health professional and found to have a brevity or infrequency’’ (Ex. 15: 407). hearing be calculated separately for each medical condition that causes hearing In the final rule, OSHA has continued ear: loss, the case should not be recordable.’’ to rely on a presumption of work- Because an individual’s left and right ears Several commenters objected to the relationship for workers who are may be affected differently by noise or other proposed presumption of work- exposed to noise at or above the action occupational injury, it is important that relationship (see, e.g., Exs.15: 201, 263, levels specified in the Occupational Appendix B specifies that shifts in hearing 283, 289, 305, 318, 334, 390). The Noise standard (29 CFR 1910.95). In line are to be calculated separately for each ear. National Association of Manufacturers with the overall concept of work Arguing along similar lines, the commented that ‘‘There is no relationship adopted in this final rule Chevron Companies raised the issue of justification for presuming that hearing for all conditions, an injury or illness is revising baselines for both ears when a loss is work-related simply because an considered work related if it occurs in standard threshold shift is recorded in employee is exposed to an 8-hour time the work environment. For workers who only one ear. They commented: weighted average sound level of noise of are exposed to the noise levels that 85 dB(A) or higher, even if it were a require medical surveillance under The proposed rule discusses an average shift in one or both ears and establishing a daily exposure and particularly where it § 1910.95 (an 8-hour time-weighted new or revised baseline for future tests to be could be as infrequent as once per year’’ average of 85 dB(A) or greater, or a total evaluated against. In discussing the new or (Ex. 15: 305). Many commenters agreed noise dose of 50 percent), it is highly revised baseline however the proposed rule with Mississippi Power, which wrote likely that workplace noise is the cause does not give guidance on revision when ‘‘[t]he presumption of work relationship of or, at a minimum, has contributed to only one ear meets the revision criteria (15 does not consider other potentially the observed STS. It is not necessary for dB or 25 dB or whatever the final rule states). significant noise exposures such as the workplace to be the sole cause, or Are the baselines for both ears revised or noisy hobbies, or other noisy activities even the predominant cause, of the only the ear meeting the criteria? This issue should be clearly addressed in the final rule. not associated with occupational noise hearing loss in order for it to be work- Usually noise induced hearing loss is a exposures’’ (Ex. 15: 263). Deere & related. Because the final recordkeeping symmetrical event so it would be reasonable Company argued that ‘‘OSHA is not rule relies upon the coverage of the to revise the baselines for both ears. If the taking into account the noise-reducing Occupational Noise standard, it is also baselines are to be revised individually one effect of an effective hearing not necessary for OSHA to include a could anticipate more hearing losses being conservation program nor does it take minimum time of exposure provision. recorded than if they are revised in unison. into account the often significant noise The Occupational Noise standard does Therefore, for Hearing Conservation Program exposure that many employees have not require a baseline audiogram to be statistics to be meaningful and comparable, baseline revision must be handled the same away from the workplace ’’ (Ex. 15: taken for up to six months after the across industries (Ex. 15: 343). 283). employee is first exposed to noise in the There are numerous suggestions in workplace, and the next annual Shifts in hearing must be calculated the record on how best to deal with the audiogram would not be taken until a separately for each ear, in accordance presumption of work-relationship. year after that. For any worker to have with the requirements of § 1910.95. Impact Health Services Inc., and others an applicable change in audiogram However, if a single audiogram reflects suggested that a case be considered results under the Occupational Noise a loss of hearing in both ears, only one work-related ‘‘when in the judgement of standard, the worker would have been hearing loss case must be entered into the supervising audiologist or exposed to levels of noise exceeding 85 the records. The issue of revising physician, the shift is due in full or in dB(A) for at least a year, and possibly baseline audiograms to evaluate the part to excessive noise exposure in the even for 18 months. extent of future hearing loss pertains to workplace’’ (Ex. 15: 175). Akzo Nobel In addition, the provisions allowing a hearing loss case that has been entered Chemicals proposed that work- for review by a physician or other on the Log. If a single-ear STS loss has relationship be presumed when ‘‘there licensed health care professional allow been recorded on the Log, then the is no other reasonable non-work related for the exclusion of hearing loss cases baseline audiogram should be adjusted explanation’’ (Ex. 37), and the National that are not caused by noise exposure, for that ear, and that ear only. If an STS Grain and Feed Association suggested such as off the job traumatic injury to affecting both ears has been recorded on ‘‘that if an employer has an active and the ear, infections, and the like. OSHA the Log, then the baseline audiogram an enforceable hearing conservation notes that this presumption is consistent may be revised and applied to both ears. program in place, the presumption with a similar presumption in OSHA’s This means that there should be no should be that any hearing loss Occupational Noise standard (in both cases where the baseline audiogram has experienced by an employee is not work cases, an employer is permitted to rebut been adjusted and the case has not been related unless it can be shown to be this presumption if he or she suspects recorded on the Log. otherwise’’ (Ex. 15: 119). A number of that the hearing loss shown on an The Medical Educational commenters agreed with the comment employer’s audiogram in fact has a Development Institute (Ex. 15: 25) made of the Edison Electric Group that medical etiology and this is confirmed several recommendations for changing ‘‘OSHA should also establish a criteria by a physician or other licensed health OSHA’s noise standard, 29 CFR of exposure to noise at or above the 85 care professional). 1910.95, to add specific steps to be dB(a) TWA action level of 30 or more taken when a 10 dB STS occurs, such days per year before the case is Miscellaneous Issues as employee interviews, reevaluations recordable’’ because ‘‘[a] single day’s Other issues addressed by with medical personnel, physician exposure at or below the PEL will not commenters to the rulemaking record on referral, labeling of revised baseline cause hearing loss’’ (Ex. 15: 401), and OSHA’s proposed criterion for recording audiograms, and reassignment to quieter NIOSH proposed that work-relationship hearing loss included whether OSHA work for workers with a second or be presumed ‘‘if an employee is exposed should treat hearing levels for each ear subsequent STS. These are interesting
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recommendations, but they address infection from their clients or patients, other words, the proposal contained a issues that are beyond the scope of this and some workers are at greatly ‘‘special industries’’ presumption for rulemaking. This rulemaking is increased risk, such as workers exposed those industries known to have higher concerned only with the Part 1904 to TB patients in health care settings. rates of occupational TB transmission. requirements for recording occupational Outbreaks have also occurred in a OSHA proposed to allow employers to hearing loss on the OSHA 300 Log, and variety of workplaces, including rebut the presumption of work- does not affect any provision of the hospitals, prisons, homeless shelters, relatedness if they could provide OSHA Occupational Noise standard. nursing homes, and manufacturing evidence that the employee had been Phillips Petroleum (Ex. 15: 354) raised facilities (62 FR 54159). exposed to active TB outside the work another miscellaneous issue when it The text of § 1904.11 of the final rule environment. Examples of such suggested that OSHA phase in the states: evidence would have included (1) the recording of audiometric tests if a more (a) Basic requirement. If any of your employee was living in a household protective definition of hearing loss was employees has been occupationally with a person who had been diagnosed adopted in the final rule: exposed to anyone with a known case with active TB, or (2) the Public Health of active tuberculosis (TB), and that [i]f OSHA insists on the recording of Department had identified the employee hearing loss at the 15 dB, it would artificially employee subsequently develops a as a contact of an individual with a case inflate the number of recordable hearing-loss tuberculosis infection, as evidenced by of active TB. For employees working in cases and have a similar effect as that of the a positive skin test or diagnosis by a industries other than the ‘‘special’’ severity issue. We recommend that if the physician or other licensed health care industries, OSHA proposed that a recordability bar is lowered from 25 dB], professional, you must record the case positive skin test result be considered OSHA allow a transition period where a 15 on the OSHA 300 Log by checking the work-related when the employee had dB shift is listed on the log, but is not ‘‘respiratory condition’’ column. been exposed to a person within the counted in the recordable total. This should (b) Implementation. work environment who was known to continue for a transition period of three years (1) Do I have to record, on the Log, a have TB disease. Under the proposal, an to allow facilities to identify all employees positive TB skin test result obtained at affected. Any employees who were not employee exhibiting a positive skin test identified during the transition period would a pre-employment physical? and working in industries other than become recordables with a 15 dB hearing loss No, because the employee was not those listed would otherwise not be after the transition period. occupationally exposed to a known case presumed to have acquired the infection of active tuberculosis in your in the work environment (61 FR 4041). OSHA does not believe that a workplace. transition period is needed for the As noted in the proposal, these (2) May I line-out or erase a recorded recording criteria for TB were consistent recording of occupational hearing loss TB case if I obtain evidence that the case or any other type of injury or illness with those published previously in was not caused by occupational OSHA directives to the field (February included in the records. Adding such a exposure? provision would add unnecessary 26, 1993 memo to Regional Yes. you may line-out or erase the Administrators). The final rule permits complexity to the rule, and would also case from the Log under the following create an additional change in the data employers to rebut the presumption of circumstances: work-relatedness in cases of TB that would make it difficult to compare (i) The worker is living in a household infection among employees but does not data between the two years at the end with a person who has been diagnosed rely on the ‘‘special industries’’ of the transition. OSHA finds that it is with active TB; approach taken by OSHA in the better to implement the recordkeeping (ii) The Public Health Department has proposal, for reasons explained below. changes as a single event and reduce the identified the worker as a contact of an impacts on the data in future years. individual with a case of active TB Positive Skin Tests As noted previously, OSHA is not unrelated to the workplace; or Several comments in the record making any changes to its noise (iii) A medical investigation shows supported OSHA’s proposed recording standards in this Part 1904 rulemaking, that the employee’s infection was criteria for occupational TB cases (see, and thus no additional protections are caused by exposure to TB away from e.g., Exs. 15: 72, 133, 198). A number of being provided in this final rule. work, or proves that the case was not commenters, however, questioned Section 1904.11 Additional Recording related to the workplace TB exposure. whether a positive tuberculin skin test Criteria for Work-Related Tuberculosis The Proposal reaction should be considered a Cases The proposed rule included criteria recordable occupational illness (Ex. 15: Section 1904.11 of the final rule being for the recording of TB cases in 146, 188, 200). For example, BF published today addresses the recording proposed Appendix B. In that appendix, Goodrich wrote: of tuberculosis (TB) infections that may OSHA proposed to require the recording We disagree with a positive skin test occur to workers occupationally of cases of TB infection or disease at the reaction as the criterion for recording a TB exposed to TB. TB is a major health time an employee first had a positive case. Such tests are only indicative of a past exposure, not necessarily an illness or a concern, and nearly one-third of the tuberculin skin test, except in those condition. OSHA should allow diagnosing world’s population may be infected cases where the skin test result occurred medical professionals to use their with the TB bacterium at the present before the employee was assigned to professional judgement to confirm active TB time. There are two general stages of TB, work with patients or clients. The cases and restrict recordability to those cases tuberculosis infection and active proposal stated that cases of TB disease (Ex. 15: 146). tuberculosis disease. Individuals with or TB infection would be presumed to Kaiser Permanente (Ex. 15: 200) tuberculosis infection and no active be work-related if they occurred in an argued: disease are not infectious; tuberculosis employee employed in one of the The presumption that an initial positive infections are asymptomatic and are following industries: correctional skin test result or diagnosed tuberculosis in only detected by a positive response to facilities, health care facilities, homeless a health care employee is occupationally a tuberculin skin test. Workers in many shelters, long-term care facilities for the based is not warranted. While there have settings are at risk of contracting TB elderly, and drug treatment centers. In been outbreaks in health care facilities
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documented in the literature, and while skin statistics and important information tuberculosis. To record personal test conversion does occur in health care would be lost. Thus, requiring the transmission from one employee to workers and may in given cases be recording of a case at the infection stage another goes beyond the scope of work occupationally related, the Kaiser will create more accurate, complete and relatedness.’’ Other commenters agreed Permanente experience has not been characterized by outbreaks or significant useful statistics, one of the major goals with OSHA that, at least under certain rates of skin test conversion. Diagnosed cases of this rulemaking. circumstances, employee-to-employee of tuberculosis among Kaiser Permanente Several commenters suggested that TB transmission should be considered health care workers are extremely rare. should not be recorded at all because, in work-related (see, e.g., Exs. 15: 78, 218, OSHA views the situation differently. their view, acquiring TB infection is not 361, 398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated that ‘‘[i]f A positive tuberculin skin test indicates within the control of the employer and a worker with infectious tuberculosis that the employee has been exposed to is not amenable to control by an disease infected their co-worker, the co- Mycobacterium tuberculosis and has employer’s safety and health program workers’ infection/disease would be been infected with the bacterium. (see, e.g., Exs. 15: 316, 348, 414, 423). For example, Raytheon Engineers & recordable.’’ Although the worker may or may not Again, as discussed above, OSHA have active tuberculosis disease, the Constructors (Ex. 15: 414) argued that TB infection and disease should not be believes, under the positional theory of worker has become infected. Otherwise, causality, that non-minor illnesses his or her body would not have formed recorded because it ‘‘is not due to a condition of the work environment resulting from an exposure in the work antibodies against these pathogens. environment are work-related and (OSHA is aware that, in rare situations, under the control of the employer.’’ Dupont argued along similar lines: therefore recordable unless a specific a positive skin test result may indicate exemption to the presumption applies. a prior inoculation against TB rather It does not make sense to record tuberculosis cases where an infectious Infection from exposure to another than an infection.) employee at work is no different, in OSHA believes that TB infection is a worker infects co-workers. That has nothing to do with job activity or with the workplace terms of the geographic presumption, significant change in the health status of from infection resulting from exposure an individual, and, if occupational in except as an accidental exposure. The same type of thinking could apply to flu to a client, patient, or any other person origin, is precisely the type of illness symptoms, ‘‘colds’’, conjunctivitis, etc., who is present in the workplace. The Congress envisioned including in the where lack of personal hygiene or a strong transmission of TB infection from one OSHA injury and illness statistics. ‘‘germ’’ migrated through the workplace. If employee to another person at work, Contracting a TB infection from a the exposure is not part of the job activity, including a co-worker, clearly is non- patient, client, detainee, or other person none of the cases mentioned, including minor and is squarely within the tuberculosis, should be recorded (Ex. 15: in the workplace would cause serious presumption. concern, in OSHA’s view, in any 348). reasonable person. Once a worker has As discussed elsewhere in this Special Industry Presumptions contracted the TB infection, he or she document (see the Legal Authority Many of the commenters supported will harbor the infection for life. At section above), Congress did not intend OSHA’s proposed approach of assuming some time in the future, the infection OSHA’s recordkeeping system only to work-relatedness for TB cases if the can progress to become active disease, capture conditions over which the infection occurred in workers employed with pulmonary infiltration, cavitation, employer has complete control or the in certain special industries (see, e.g., and fibrosis, and may lead to permanent ability to prevent the condition. The Act Exs. 24, 15: 78, 345, 376, 407). Other lung damage and death. An employee thus supports a presumption of work- commenters suggested that OSHA harboring TB infection is particularly relatedness for illnesses resulting from abandon the proposed special industry likely to develop the full-blown disease exposure in the workplace, and the presumption (see, e.g., Exs. 15: 197, 200, if he or she must undergo OSHA recordkeeping system has always 225, 259, 279, 302, 341, 431, 436). In the chemotherapy, contracts another reflected this position (although a few proposed rule, OSHA proposed different disease, or experiences poor health. specific exceptions to that presumption work-relatedness criteria for different According to OSHA’s proposed TB rule are permitted, including an exception work environments, i.e., in industries in (62 FR 54159), approximately 10% of all for common colds and flu). In which published reports of TB TB infections progress at some point to accordance with that presumption, outbreaks were available from the active disease, and it is not possible to when an employee is exposed to an Centers for Disease Control and predict in advance which individuals infectious agent in the workplace, such Prevention (CDC), a special will do so. as TB, chicken pox, etc., either by a co- presumption would prevail, while in OSHA also believes that it is worker, client, patient, or any other industries in which occupational important to require employers to person, and the employee becomes ill, transmission had not been documented record TB cases when an employee workplace conditions have either it would not. experiences a positive skin test because caused or contributed to the illness and Kaiser Permanente commented that doing so will create more timely and it is therefore work-related. Since, as the CDC ‘‘Guidelines for Preventing the complete statistics. If, for example, discussed above, TB infection is clearly Transmission of Mycobacterium OSHA were to require recording only a serious condition, it is non-minor and Tuberculosis in Health-Care Facilities when the worker develops active TB, must be recorded. establish facility risk levels for many cases that were in fact occupational transmission of occupational in origin would go Employee-to-Employee Transmission tuberculosis based upon assessment of a unrecorded. In such cases, if the worker Two commenters argued that range of relevant criteria such as job had retired or moved on to other transmission from employee to duties, incidence of TB patients treated, employment, the employer would employee should not be considered and community TB rates’’ and urged generally not know that the employee work-related (Exs. 15: 39, 348). The RR OSHA to follow these in the final rule had contracted active TB disease, and Donnelley & Sons Company (Ex. 15: 39) (Ex. 15: 200). the case would never be included in the pointed out that an employer ‘‘may Two commenters objected to the Nation’s occupational injury and illness never know that a fellow employee has inclusion of nursing homes in the list of
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industries in which the special industry not mean that carpenters’ injuries from example, the worker is not as likely to presumption would apply (Exs. 15: 259, such falls should not be recorded. know whether a co-worker, patient, 341). For example, the American Health Congress clearly intended information client, or other work contact has an Care Association (AHCA) suggested: such as this to be used by individual active TB case. To determine whether [i]t should not be presumed that exposure employers and to be captured in the exposure to an active case of TB has is work-related in all long term care facilities national statistical program. Again, occurred at work, the employer may for the elderly. Depending upon the facility because TB infection is a significant interview the employee to obtain and/or its location, the incidence of TB illness wherever in the workplace it additional information, or initiate a infection/disease in the facility may be less occurs, and because no exemption medical investigation of the case, but it than that of the general public. The Centers applies, it must be recorded in all would be inappropriate to place the for Disease Control and Prevention covered workplaces. Accordingly, in the burden of providing evidence of work- recognizes that even within certain settings, final rule being published today, TB relationship on the employee. there are varying levels of risk (minimal to cases are recordable without regard to high). TB linkage to the facility should be The American Ambulance based on the level of risk using the CDC the relative risk present in a given Association (Ex. 15: 226) did not assessment system, with work relatedness industry, providing only that the support the proposed approach of assigned to facilities within the moderate to employee with the infection has been reporting an employee’s positive high risk classification (Ex. 15: 341). occupationally exposed to someone tuberculin skin test reaction ‘‘unless Two commenters suggested OSHA with a known case of active there has [also] been documentation of add more industries to the proposed list tuberculosis. Employers may rebut the a work-related exposure.’’ The of industries to which the special presumption only if a medical American Network of Community industry presumption would apply. The investigation or other special Options and Resources (ANCOR) argued American Nurses Association (ANA) circumstances reveal that the case is not ‘‘ANCOR strongly opposes the inclusion told the Agency that ‘‘There should be work-related. of tuberculosis unless the infection is In the final rule, OSHA has not no question on the inclusion of the known to have been caused at work due adopted the ‘‘special industries’’ home health arena under the rubric of to a known, active carrier’’ (Ex. 15: 393). presumption, for several reasons. First, health care facilities. The risk of The American Association of doing so would be inconsistent with the transmission exists in all health care Occupational Health Nurses (AAOHN) approach taken by the Agency in other work sites including home health sites proposed that the criteria for recording parts of the rule, i.e., specific industries and must not be limited to traditional TB infection or illness be ‘‘[a]n have not been singled out for special health care facilities’ (Ex. 15: 376). employee tests positive for tuberculosis treatment elsewhere. Second, a ‘‘special Alliant Techsystems (Ex. 15: 78) infection after being exposed to a person industries’’ presumption is not needed suggested adding ‘‘Industries that causes within the work environment known to because the approach OSHA has taken exposure outside the United States such have tuberculosis disease and the in this section will provide employers as the airline sector.’’ positive test results are determined to be Some commenters argued that with better ways of rebutting work- caused by the person in the workplace recording should be limited only to TB relatedness when that is appropriate. with tuberculosis disease’’ (Ex. 15: 188). cases occurring in workers in specific Finally, the special industries approach Several commenters suggested that industries, i.e., that no case of TB in is not sufficiently accurate or well the first case of TB occurring in the other industries, no matter how enough targeted to achieve the intended workplace should not be recordable transmitted or when diagnosed, should goal. Many cases of occupationally (see, e.g., Exs. 15: 218, 361, 398). In two be recordable (see, e.g., Exs. 15: 351, transmitted TB occur among employees separate comments, the Association for 378, 396). Westinghouse Electric in industries other than the ‘‘special Professionals in Infection Control Corporation recommended that industries,’’ and evidence shows that (APIC) recommended: the risk of TB infection varies greatly ‘‘Tuberculosis exposure or disease cases [a]s an acceptable rebuttal to the outside of listed industries where cases among facilities in the special presumption of work relationship when an would be prevalent (such as health care industries. employee is found to be infected with facilities, long-term care facilities, etc.) Other Suggestions for Determining the tuberculosis or to have active disease. The should not be recordable as an Work-Relatedness of TB Cases employer is able to demonstrate that no other occupational illness. The logical source employee with similar duties and patient A number of commenters provided assignments as the infected employee was of exposure would be non work-related other suggestions for determining the found to have tuberculosis infection or active and outside the premises of the work-relatedness of TB cases (see, e.g., disease (Exs. 15: 361, 398). employer’s establishment.’’ Likewise, Exs. 15: 39, 154, 181, 188, 200, 218, 226, In addition, Bell Atlantic (Ex. 15: 218) the Air Transport Association (Ex. 15: 335, 393, 407, 431, 436). 378) suggested that TB recording proposed that public health agencies be The Society for Human Resource charged with determining the work- ‘‘[s]hould be limited to medical work Management stated: environments rather than general relationship of cases of TB in the industry. The administrative burden far Workers are exposed to tuberculosis in workplace. Bell Atlantic’s comments to many places other than the work site: it the rulemaking record were as follows: exceeds the expected benefits.’’ would be unduly burdensome to require OSHA is aware that the relative risk employers to provide evidence that the Bell Atlantic does not agree that of TB, and of all occupational injuries employee has had non-work exposure. Since tuberculosis cases should be inherently and illnesses, varies widely from the employee is in the best position to retrace reported. The first identified incidence of industry to industry and from his or her activities, he or she should be tuberculosis in an employee group probably occupation to occupation. However, required to provide evidence to establish was not contracted in the workplace. work-relatedness (Ex. 15: 431). However, if Public Health Officials deem it OSHA does not consider this necessary to require TB testing in the facility circumstance relevant for recordkeeping OSHA does not agree that the as a preventive measure, and new cases are purposes. The fact that ironworkers employee is in a better position than the found, these may be recordable. The criteria experience a higher incidence of falls employer to know whether an employee here is one of public health, and where the from elevation than do carpenters does has been exposed to TB at work. For disease initiated. The Public Health Agencies
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would be charged with investigation of employee who has a positive skin test chosen not to include this criterion in family members, friends, and the community and who is exposed at work if (1) the the final rule because in NIOSH’s away from work. worker is living in a household with a example the case would previously have A number of commenters person who has been diagnosed with been entered into the records as a case misunderstood the proposal as allowing active TB, (2) the Public Health of silicosis. Adopting the NIOSH the geographic presumption of work- Department has identified the worker as criterion would result in the same relationship only to be rebutted in a contact of a case of active TB illness being recorded twice. certain ‘‘high risk’’ industries. For unrelated to the workplace, or (3) a Kaiser Permanente recommended that example, Alcoa commented that ‘‘OSHA medical investigation shows that the OSHA adopt a method for determining seems to conclude * * * that if employee’s infection was caused by the work relationship of TB cases that someone in your workforce has TB then exposure to TB away from work or Kaiser Permanente currently uses in each person in the workplace who tests proves that the case was not related to California to evaluate whether cases are positive is now considered as having the workplace TB exposure. recordable, in accordance with an work-related TB due to the incidental The final rule thus envisions a special agreement with the California Division exposure potential’’ (Ex. 15: 65). role for public health departments that of Occupational Safety and Health (Ex. ALCOA suggested that the final rule may investigate TB outbreaks but does 15: 200): not permit employers to wait to record allow the geographic presumption of 1. The employer shall promptly investigate work-relationship to be rebutted for ‘‘all a case until a public health department all tuberculin skin test conversions according other industries.’’ confirms the work-relatedness of the to the ‘‘Guidelines for Preventing the OSHA agrees that a case of TB should case. In addition, the final rule’s Transmission of Mycobacterium tuberculosis be recorded only when an employee has provisions for excluding cases apply in in Health-Care Facilities’’ published by the been exposed to TB in the workplace all industries covered by the Centers for Disease Control and Prevention (i.e., that the positional theory of recordkeeping rule, just as the recording (CDC Guidelines). causation applies to these cases just as requirements apply to all industries. 2. Probable exposure to Mycobacterium The final rule thus does not include the tuberculosis unrelated to work environment. it does to all others). OSHA has added The conversion shall not be recorded on the an additional recording criterion in this ‘‘special industries’’ approach of the log if, after investigation, the employer case: for a TB case occurring in an proposal. As discussed above, the reasonably determines that the employee employee to be recordable, that Agency has rejected this proposed probably converted as a result of exposure employee must have been exposed at approach because it would not have unrelated to the employee’s work duties. work to someone with a known case of been consistent with the approach 3. Probable exposure to Mycobacterium active tuberculosis. The language of the OSHA has taken elsewhere in the rule, tuberculosis related to work environment. final rule addresses these concerns: ‘‘If which is not industry-specific; it is not The conversion shall be recorded on the log necessary to attain the intended goal; if, after investigation, the employer any of your employees has been reasonably determines that the employee occupationally exposed to anyone with and it would not, in any case, have probably converted as a result of exposure a known case of active tuberculosis, achieved that goal with the appropriate related to the employee’s work duties. ***’’ Under the final rule, if a worker degree of accuracy or specificity. 4. Inability to determine probable cause of reports a case of TB but the worker has A few commenters stressed that exposure. If, after reasonably thorough not been exposed to an active case of the employers should not be required to investigation, the employer is unable to disease at work, the case is not record cases where the employee was determine whether the employee probably recordable. However, OSHA sees no infected with TB before employment converted as a result of exposure related to (see, e.g., Exs. 15: 65, 407, 414). For the employee’s work duties, the following need for the employer to document such shall be done: workplace exposure, or for the Agency example, Alcoa (Ex. 15: 65) proposed a. The conversion shall not be recorded on to require a higher level of proof that that employers not be required to the log if the employee was, at all times workplace exposure has occurred in consider as work-related any case where during which the conversion could have these compared with other cases. ‘‘the employee has previously had a occurred, assigned to a unit or job Further, OSHA knows of no justification positive PPD [Purified Protein classification, which met the minimal risk, for excluding cases simply because they Derivative] test result.’’ In response to low risk, or very low risk criteria specified are the first or only case discovered in this suggestion, OSHA has added an in the CDC Guidelines. implementation question to the final b. In all other cases, the conversion shall the workplace. If a worker contracted be recorded on the log. the disease from contact with a co- rule to make sure that employers worker, patient, client, customer or understand that pre-employment skin As an initial matter, OSHA notes that other work contact, the case would be test results for TB are not work-related the States are not authorized to provide work-related, even though it was the and do not have to be recorded. These employers with variances to the Part first case detected. Many work-related results are not considered work-related 1904 regulations, under either the rule injury and illness cases would be for the purposes of the current being published today or the former excluded from the recordkeeping system employer’s Log because the test result rule. The issuing of such variances is if cases were only considered to be cannot be the result of an event or exclusively reserved to Federal OSHA, work-related when they occurred in exposure in the current employer’s work to help ensure the consistency of the clusters or epidemics. This was clearly environment. data nationwide and to make the data not Congress’s intent. NIOSH proposed to expand the comparable from state-to-state. OSHA The final rule’s criteria for recording recording criteria for TB infection or has not adopted the approach suggested TB cases include three provisions disease to include the criterion that by Kaiser Permanente because the designed to help employers rule out ‘‘regardless of the industry or source of approach is too complex, does not apply cases where occupational exposure is infection, a case of active TB disease is equally to health care and non-health not the cause of the infection in the presumed to be work-related if the care settings, and does not provide the employee (i.e., where the infection was affected employee has silicosis clear guidance needed for a regulatory caused by exposure outside the work attributable to crystalline silica requirement. However, because the final environment). An employer is not exposure in the employer’s rule allows employers to rebut the required to record a case involving an establishment’’ (Ex. 15: 407). OSHA has presumption of work-relatedness if a
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medical evaluation concludes that the from repeated biomechanical stress due trips, falls, or other similar accidents.’’ TB infection did not arise as a result of to ergonomic hazards.’’ (Ex. 11 at p. 20.) This language clarifies that, for occupational exposure, a physician or Appendix B to the recordkeeping rule recordkeeping purposes, OSHA is not other licensed health care professional proposed requirements for employers to defining MSDs as injuries or disorders could use the CDC Guidelines or follow when recording MSDs. The caused by particular risk factors in the another method to investigate the origin proposed requirements would have workplace. Instead, the Agency defines of the case. If such an investigation required recording: (1) whenever an MSDs as including all injuries to the resulted in information that MSD was diagnosed by a health care listed soft tissues and structures of the demonstrates that the case is not related provider, or (2) whenever an employee body regardless of physical cause, to a workplace exposure, the employer presented with one or more of the unless those injuries resulted from slips, need not record the case. For example, objective signs of such disorders, such trips, falls, motor vehicle accidents, or such an investigation might reveal that as swelling, redness indicative of similar accidents. To provide examples the employee had been vaccinated in inflammation, or deformity. When of injuries and disorders that are childhood with the BCG vaccine. The either of these two criteria was met, or included in the definition of MSD used employer may wish, in such cases, to when an employee experienced in the final rule, Section 1904.12(b)(1) keep records of the investigation and subjective symptoms, such as pain, and contains a list of examples of MSDs; determination. one or more of the general criteria for however, musculoskeletal conditions recording injuries and illnesses (i.e., not on this list may also meet the final Section 1904.12 Recording Criteria for death, loss of consciousness, days away rule’s definition of MSD. Cases Involving Work-Related from work, restricted work, job transfer, Musculoskeletal Disorders or medical treatment) were met, an MSD Determining the Work-Relatedness of MSDs Section 1904.12, entitled ‘‘Recording case would have been recordable under criteria for cases involving work-related the proposal. Section 1904.12(b)(2) provides that musculoskeletal disorders,’’ provides The proposal also contained special ‘‘[t]here are no special criteria for determining which musculoskeletal requirements for recording work-related provisions for determining whether hot disorders to record. An MSD case is musculoskeletal disorders (MSDs). and cold treatments administered to recorded using the same process you MSDs are defined in the final alleviate the signs and symptoms of MSDs would be considered first aid or would use for any other injury or recordkeeping rule as ‘‘injuries and medical treatment. Under the former illness.’’ This means that employers disorders of the muscles, nerves, recordkeeping rule, the application of must apply the criteria set out in tendons, ligaments, joints, cartilage, and hot and cold treatment on the first visit sections 1904.5–1904.7 of the final rule spinal discs.’’ to medical personnel was considered to determine whether a reported MSD is Paragraph 1904.12(a) establishes the first aid, while the application of such ‘‘work-related,’’ is a ‘‘new case,’’ and employer’s basic obligation to enter treatment on the second or subsequent then meets one or more of the general recordable musculoskeletal disorders on visit was considered to constitute recording criteria. The following the Log and to check the medical treatment. OSHA proposed to discussion supplements the information musculoskeletal disorder column on the revise this provision to consider hot or provided in the summary and right side of the Log when such a case cold therapy to be first aid for all explanation accompanying section occurs. The paragraph states that, ‘‘[i]f injuries and illnesses except MSDs, but 1904.5, to assist employers in deciding any of your employees experiences a to consider two or more applications of which MSDs are work-related. recordable work-related musculoskeletal such therapy medical treatment if used For MSDs, as for all other types of disorder (MSD), you must record it on for an MSD case (61 FR 4064). Whether injuries and illnesses, the threshold the OSHA 300 Log by checking the hot and cold therapies constitute first question is whether the geographic ‘‘musculoskeletal disorder’’ column.’’ aid or medical treatment is addressed in presumption established in paragraph Paragraph 1904.12(b)(1) contains the detail in section 1904.7 of the final 1904.5(a) applies. The presumption definition of ‘musculoskeletal disorder’ recordkeeping rule. As discussed in that applies whenever an MSD or other type used for recordkeeping purposes. section, under the final rule, hot and of injury or illness ‘‘results from an Paragraphs 1904.12(b)(2) and cold therapies are considered first aid, event or exposure in the work 1904.12(b)(3) provide answers to regardless of the type of injury or illness environment.’’ For recordkeeping questions that may arise in to which they are applied or the number purposes, an ‘‘event’’ or ‘‘exposure’’ implementing the basic requirement, of times such therapy is applied. includes any identifiable incident, including questions on the work- occurrence, activity, or bodily relatedness of MSDs. The Final Rule’s Definition of movement that occurs in the work Musculoskeletal Disorder The Proposal environment. If an MSD can be The preamble to the proposal attributed to such an event or exposure, The proposal defined MSDs as described an MSD as an injury or the case is work related, regardless of ‘‘injuries and illnesses * * * result[ing] disorder ‘‘resulting from’’ ergonomic the nature or extent of the ergonomic from ergonomic hazards,’’ such as hazards. However, OSHA has not risk factors present in the workplace or lifting, repeated motion, and repetitive carried this approach forward in the the worker’s job. strain and stress on the musculoskeletal final rule because it would rely on an This position is not new to the final system. (61 FR 4046) This language was assessment of the cause of the injury, rule; it is clearly reflected in the 1986 derived, in part, from the definition of rather than the nature of the injury or BLS Recordkeeping Guidelines. The the term ‘‘cumulative trauma disorders illness itself. Guidelines contain the following (CTDs),’’ used in OSHA’s Ergonomics Paragraph 1904.12(b)(1) of the final discussion of the applicability of the Program Management Guidelines For rule therefore states, in pertinent part, work-relatedness presumption to back Meatpacking Plants (hereafter that MSDs ‘‘are injuries and disorders of injuries and hernia cases, which reflects ‘‘Meatpacking Guidelines’’). The 1990 the muscles, nerves, tendons, ligaments, OSHA’s position under this final rule: Meatpacking Guidelines used the term joints, cartilage and spinal discs. MSDs Back and hernia cases should be evaluated CTDs to cover ‘‘health disorders arising do not include injuries caused by slips, in the same manner as any other case.
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Questions concerning the recordability of evidence, available industry guidelines, representative of these views: ‘‘The these cases usually revolve around: (1) The and other pertinent sources. This final system for evaluating all cases should be impact of a previous back or hernia condition rule does not establish new or different consistent. When evaluating on the recordability of the case, or (2) musculoskeletal disorders, the normal whether or not the back injury or hernia was criteria for determining whether an work-related. MSD is more likely than not to have recordkeeping criteria should be used.’’ Preexisting conditions generally do not resulted from work activities or job The Voluntary Protection Programs impact the recordability of cases under the conditions, i.e., from exposure to Participants’ Association (VPPPA) also OSHA system. * * * For a back or hernia ergonomic risk factors at work. As is the recommended that ‘‘MSDs should be case to be considered work-related, it must case for all injuries and illnesses, the treated as any other injury or illness. If have resulted from a work-related event or employer must make a good faith the problem arises to the level of exposure in the work environment. determination about work-relatedness in seriousness that it is a recordable injury Employers may sometimes be able to or illness, then it should be recorded on distinguish between back injuries that result each case, based on the available from an event in the work environment, and evidence. the log’’ (Ex. 15: 425). The National back injuries that are caused elsewhere and The preamble discussion for Safety Council (Ex. 15: 359) merely surface in the work environment. The paragraph 1904.5(b)(3) contains some recommended that ‘‘if an employee has former are recordable; the latter are not. This examples to assist employers in making pain, he or she should report it. It then test should be applied to all injuries and this determination. In addition, the BLS becomes recordable or not recordable illnesses, not just back and hernia cases. Guidelines contain the following based on the usual criteria. The Guidelines at p. 32 (emphasis in original). examples: employer makes a decision on a case by The Guidelines provide the following case basis.’’ Q. Must there be an identifiable event or OSHA agrees with these commenters question and answer to illustrate that exposure in the work environment for there MSDs may be attributable to events or to be a recordable case? What if someone that MSD cases should be recorded in exposures in the work environment that experiences a backache, but cannot identify the same way as other injuries and pose little apparent ergonomic risk: the particular movement which caused the illnesses, and should not have separate injury? recordability criteria. Using the same B–16 Q. An employee’s back goes out while performing routine activity at work. A. Usually, there will be an identifiable criteria for these cases, which constitute Assuming the employee was not involved in event or exposure to which the employer or one-third of all occupational injuries any stressful activity, such as lifting a heavy employee can attribute the injury or illness. and illnesses, simplifies the final rule object, is the case recordable? However, this is not necessary for and makes the system easier for A. Particularly stressful activity is not recordkeeping purposes. If it seems likely employers and employees to use. required. If an event (such as a * * * sharp that an event or exposure in the work Employing consistent recording criteria environment either caused or contributed to twist, etc.) occurred in the work environment thus helps to achieve one of OSHA’s that caused or contributed to the injury, the the case, the case is recordable, even though the exact time or location of the particular major goals in this rulemaking, case would be recordable, assuming it meets simplification. Section 1904.12 has been the other requirements for recordability. event or exposure cannot be identified. Guidelines at p. 32 (emphasis in original). If the backache is known to result from included in the final rule not to impose some nonwork-related activity outside the different recording criteria on MSDs, but OSHA believes that, in most cases, an work environment and merely surfaces at to emphasize that employers are to employee who reports an MSD at work work, then the employer need not record the record MSD cases like all other injuries will be able to identify the activity or case. In these situations, employers may want and illnesses. OSHA believes that this bodily movements (such as lifting, to document the reasons they feel the case is approach to the recording of MSDs will twisting, or repetitive motions) that not work related. (BLS Guidelines, p. 32.) yield statistics on musculoskeletal produced the MSD. If the activity or disorders that are reliable and complete. movements that precipitated the Comments on Other Approaches to disorder occurred at work, the Recording MSDs Requiring Diagnosis by a Health Care presumption of work-relatedness is Commenters provided OSHA with Professional established without the need for further several suggestions for recording A number of commenters analysis. However, cases may arise in musculoskeletal disorders: requiring recommended that OSHA require the which it is unclear whether the MSD diagnosis by a health care professional, recording of musculoskeletal disorders results from an event or exposure in the recording symptoms lasting seven days, only when they are diagnosed by a work environment. In these cases, and eliminating special criteria for health care professional or identified by paragraph 1904.5(b)(3) of the final rule recording MSD cases. These are a medical test result (see, e.g., Exs. 15: directs the employer to evaluate the discussed below. 20, 22, 39, 42, 44, 57, 60, 78, 82, 121, employee’s work activities to determine 126, 146, 173, 199, 201, 218, 225, 242, whether it is likely that one or more Eliminating Special Criteria for 246, 247, 248, 259, 272, 288, 289, 303, events or exposures in the work Recording MSD Cases 318, 324, 332, 335, 341, 342, 348, 351, environment caused or contributed to A large number of commenters 355, 356, 357, 364, 366, 378, 384, 397, the disorder. In this situation the suggested that the recordkeeping rule 414, 424, 440, 441). The National employer would consider the employee should not contain criteria for recording Electrical Contractors Association report, the ergonomic risk factors MSD cases that were different from (NECA) requested that ‘‘OSHA modify present in the employee’s job, and other those for recording all injuries and the current criteria to state ‘‘Positive x- available information to determine illnesses, arguing that they should be ray showing broken bones or fracture, work-relationship. captured using the criteria for all other diagnosis of broken teeth, or diagnosis In evaluating job activities and work types of injuries and illnesses (see, e.g., of acute soft tissue damages’’ (Ex. 15: conditions to identify whether Exs. 15: 9, 44, 76, 109, 122, 123, 130, 126). The United Technologies ergonomic risk factors are present, 145, 146, 176, 188, 199, 201, 218, 235, Company (UTC) agreed that ‘‘MSDs employers may turn to readily available 272, 273, 288, 289, 301, 303, 304, 347, should only be recorded if the diagnosis sources of information for assistance, 351, 359, 368, 386, 392, 395, 396, 409, is made by a health care provider such as materials made available by 425, 427). The comments of PPG operating within the scope of his or her OSHA on its web site, current scientific Industries, Inc. (Ex. 15: 109) are specialty’’ (Ex. 15: 440). The National
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Coalition on Ergonomics (Ex. 15: 366) 363, 409). For example, the American In most situations, an evaluation by a urged OSHA to limit the recording of Automobile Manufacturers Association physician or other licensed health care MSD cases to those diagnosed by highly (AAMA) remarked that ‘‘[w]e strongly professional is simply not needed in qualified health care professionals: oppose the recording of a order to make a recording decision. For [O]SHA should not encourage unqualified musculoskeletal disorder based solely example, if a worker strains a muscle in individuals to ‘‘diagnose’’ musculoskeletal on the diagnosis by a health care his or her back lifting a heavy object, disorders given the present state of medical provider. A diagnosis, in and of itself, and the back injury results in days away knowledge of their causes and cures. * * * does not reflect whether a from work, there is no doubt either Therefore, OSHA should limit in the musculoskeletal disorder is significant about the work-relationship of the case definition of musculoskeletal disorders the or serious in nature. Health care or its meeting of the recording criteria. diagnosis to qualified and trained physicians, providers record a description or and such other practitioners as are accepted Similarly, if a worker performing a job by the medical community as having the diagnosis of an employee’s complaint that has resulted in MSDs of the wrist training and skill necessary to adequately whether minor or serious.’’ On the other in other employees reports wrist pain and appropriately treat these cases. hand, the American Federation of State, and restricted motion, and the employer County, and Municipal Employees (Ex. Other commenters expressed similar places the employee on restricted work, 15: 362) argued that ‘‘[w]orkers may not opinions, arguing that the work the case is recordable and there is no see a health care professional until after relationship of a given case should be need to await a clinical diagnosis. they have endured symptoms for an determined by a health care professional extended period * * * The reality of Recording of MSD Symptoms (see, e.g., Exs. 15: 9, 105, 248, 249, 250, the situation is that a great number of In the preamble to the proposed rule 262, 272, 288, 303, 304, 324, 366, 397, workers who suffer from symptoms will (61 FR 4047), OSHA asked: 408, 440). The Footwear Industries of not be diagnosed by a health care There is a concern that the proposed America (Ex. 15: 249) recommended provider unless or until their condition that ‘‘An MSD should be recordable criteria [for recording MSDs] will result in a becomes severe and/or disabling.’’ situation where workers could be working only if it is diagnosed by a health-care As discussed in the preamble to the with significant pain for an extended period provider based on a determination that work relationship section of the final of time, without their case being entered into the MSD is clearly work-related—that is, rule (§ 1904.5), an employer is always the records. OSHA has been asked to caused by the work environment.’’ The free to consult a physician or other consider an additional recording criterion for American Dental Association (Ex. 15: licensed health care professional to these cases: record when the employee reports symptoms (pain, tingling, numbness, 408) suggested that ‘‘OSHA should not assist in making the determination of require employers to keep records of etc.) persisting for at least 7 calendar days work relationship in individual injury from the date of onset. OSHA asks for input musculoskeletal disorders unless and or illness cases, including on this criterion. until a physician identifies work as the musculoskeletal disorders. If a Some commenters urged OSHA to ‘‘predominant cause’’ in a given case.’’ physician or other licensed health care require employers to record MSD cases United Technologies Company professional has knowledge of the where an employee reports symptoms recommended that the health care employee’s current job activities and that have persisted for at least 7 provider use a check list to make this work conditions, work history, and the calendar days (see, e.g., Exs. 15: 87, 129, determination: ‘‘UTC also believes that work environment, he or she can often the provider should be required to use that information, along with the 186, 362, 369, 371, 374, 380). The complete a check list regarding work results of a medical evaluation of the American Federation of State County relatedness with the language changed worker, to reach a conclusion about the and Municipal Employees, AFL–CIO to include predominantly caused by the work-relatedness of the condition. (AFSCME) recommended: work environment and the submittal of Relying on the expertise of a Under-reporting of MSDs will increase if information by the employer’’ (Ex. 15: knowledgeable health care professional OSHA adopts this proposal. It has been 440). can be invaluable to the employer in AFSCME’s experience that workers The Northrop Grumman Association those infrequent cases for which it is not experiencing pain, soreness, tenderness, numbness, tingling and other sensations in (Ex. 15: 42) suggested that clear whether workplace events or ‘‘Recordability should only be based on their extremities or back do not immediately exposures caused or contributed to the report these symptoms to their employer. objective, documented findings by a MSD or significantly aggravated pre- Rather, most employees first attempt to licensed physician. In [proposed] existing symptoms. Employers may also alleviate their symptoms on their own: they mandatory Appendix B, recordability is obtain useful information from ingest medications, use topical solutions, defined as diagnosis by a health care ergonomists, industrial engineers, or apply heat or cold to affected areas, or utilize provider and/or objective findings. The other safety and health professionals other remedies in their attempt to relieve ‘or’ should be deleted. Only positive test who have training and experience in pain, aches, stiffness, or other symptoms. findings should denote recordability. relevant fields and can evaluate the OSHA should require that these cases be There are physicians who diagnose recorded when symptoms last for seven workplace for the presence of ergonomic consecutive days. cases without any objective tests to risk factors. Investigations conducted by AFSCME confirm their diagnosis.’’ Other However, OSHA does not require repeatedly demonstrate that inclusion of the commenters (see, e.g., Exs. 15: 44, 386, employers to consult with a physician additional criterion is necessary in order to 330, 332) recommended that MSD cases or other licensed health care ascertain accurately the number of work- be recorded only when they are professional or to have the employee related MSDs. Employer records typically diagnosed by a health care provider undergo medical tests when making show MSD rates at or even well below ten and/or are identified by a positive test work-relationship determinations. The percent of employees at risk for these result and meet the general recording Agency finds that doing so would be injuries. However, results of AFSCME- conducted symptom surveys show that it is criteria. both unnecessary and impractical in the common for a third or more of the employees A few commenters argued that a great majority of cases and would result to respond that they have felt pain, health care professional’s diagnosis both in delaying the recording of numbness, tingling, or other symptoms that should not be considered evidence of occupational MSD cases and increasing have persisted for more than seven work-relatedness (see, e.g., Exs. 15: 347, medical costs for employers. days.* * *
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AFSCME wishes to emphasize that either. As we discuss below, individual few illustrative examples of ICD illness accurate and complete recording of MSDs is symptoms are not illnesses; symptoms, in codes for pain-related disorders that critically important. Early detection, proper conjunction with appropriate signs and/or would be considered MSD cases under medical intervention, and appropriate laboratory results are essential to diagnose OSHA’s definition and would thus measures to address ergonomic risk factors in specific conditions. the workplace are all necessary to prevent Since symptoms do not define cases, warrant an evaluation of work- and manage MSDs (Ex. 15: 362). OSHA cannot—indeed, should not—require relatedness by the employer. employers to record complaints of uncertain Many commenters objected to the validity and non-specific origin. It is perhaps ICD code Name and description proposed 7-day symptom recording true that such employees should see a trained concept (see, e.g., Exs. 15: 9, 20, 39, 122, physician or other practitioner, but only after 723.1 ...... Cervicalgia—Pain in neck. 127, 128, 170, 230, 246, 248, 281, 289, this event will there be a case to record, if 724.1 ...... Pain in thoracic spine. 324, 330, 332, 341, 359, 378, 397, 406, one exists at all. 724.2 ...... Lumbago—Low back pain. 724.5 ...... Backache, unspecified. 434). David E. Jones of the law firm of Linda Ballas & Associates (Ex. 15: 31) Ogletree, Deakins, Nash, Smoak & expressed a different concern, namely (NCHS Internet home page, http:// Stewart (Ex. 15: 406) stated that this that ‘‘[i]f an employee is experiencing www.cdc.gov/nchswww/about/ provision was unnecessary because pain, or reports symptoms—the clock otheract/icd9) ‘‘[t]he prevalent experience has shown should not have to click to 7 days before Pain is a symptom that generally that employers typically record those the case is recordable. This will lead to indicates the existence of some symptoms when they result in medical under recording and under reporting underlying physiological condition, treatment, restricted work activity, or *** .’’ days away from work.’’ The Eli Lilly In response to the comments on this such as inflammation, damage to a Company (Ex. 15: 434) also observed issue, OSHA finds that pain and/or spinal disc, or other biomechanical that ‘‘[b]ased on input from [our] other MSD symptoms, of and by damage. The occurrence of pain or other occupational health physicians, the vast themselves, may indicate an injury or symptoms (such as, in the case of MSDs, majority of MSD-type cases would illness. In this regard, MSD cases are not tingling, burning, numbness, etc.) is manifest into objective findings or a different from other types of injury or thus indicative of an incident that MSD diagnosis after 7 calendar days of illness. As discussed in the preamble to warrants investigation by the employer legitimate subjective symptoms.’’ the definitions section of the final rule for work-relatedness, the first step in the Other objections to the proposal’s 7- (Subpart G), symptoms such as pain are injury and illness reporting and day symptom trigger were based on one of the primary ways that injuries recording process. The occurrence of practical considerations. Many and illnesses manifest themselves. If an pain or other symptoms, however, is not commenters were opposed to recording employee reports pain or other enough, in the absence of an injury or undiagnosed conditions that persist for symptoms affecting the muscles, nerves, illness that meets one or more of the seven days on the grounds that the tendons, etc., the incident must be recording criteria, to make any injury or seriousness or veracity of the complaint evaluated for work-relatedness, and, if illness (including an MSD case) of pain or other symptoms could not be determined by the employer to be work- recordable under Part 1904. Employers established by the employer (see, e.g., related, must be tested against the are not required to record symptoms Exs. 15: 9, 20, 39, 121, 122, 127, 128, recording criteria to determine its unless they are work-related and the 170, 218, 230, 246, 248, 281, 289, 359, recordability. If it is determined by the injury or illness reaches the seriousness 366, 397). For example, the Dayton employer to be recordable, it must be indicated by the general recording Hudson Corporation (Ex. 15: 121) stated: recorded as an MSD on the OSHA 300 criteria, which for MSD cases will ‘‘[s]elf-reporting of symptoms with no Log. almost always be days away from work, medical findings or evaluation is an The ICD–9–CM manual, the restricted work, medical treatment, or invitation for abuse. Are these cases International Classification of Diseases, job transfer. Thus, the requirements work-related or serious? Are they even Clinical Modification (ICD–CM), the governing the recording of all injuries real?’’ Clariant Corporation held the official system of assigning codes to and illnesses will work to ensure that view that ‘‘[d]isgruntled employees diagnoses of disease, injury and illness, symptoms such as the aches and pains could use subjective findings as a means lists several MSD conditions that consist that most people experience from time of avoidance. It could be used to prevent only of pain. That is, when health care to time during their lives, are not them from doing a job or task they do professionals diagnose these disease automatically recorded on the OSHA not like’’ (Ex. 15: 217). The National states, they do so on the basis of Log. These same recording requirements Coalition on Ergonomics (Ex. 15: 366) employee-reported pain (health care will also ensure that those MSDs that opposed any recordation based on professionals often evaluate and confirm are determined by the employer to be symptoms alone, stating: such reports by physical examination work-related and that also meet one or when making a diagnosis). According to more of the recording criteria will be First, persistent pain is a symptom, not a the National Center for Health Statistics captured in the national statistics. disorder, and therefore cannot be a case. There is often no indication that persistent (NCHS), the agency responsible for the If the employer is concerned that the pain is work-related, except that as the coordination of all official disease case is not work-related, he or she can person becomes more fatigued, the pain may classification activities in the United refer the employee to a health care appear or become more intense. Further, States relating to the International professional for a determination, because pain is subjective, there is no way to Classification of Diseases (ICD), the evaluation, or treatment. In this quantify it so as to focus only on serious ICD–CM is the official system of situation, or when the employee has cases. Finally, pain can exist without an assigning codes to diagnoses and already obtained medical attention, the underlying pathology. Pain in and of itself procedures associated with hospital physician or other licensed health care cannot be a case in the absence of a diagnosis professional can help to differentiate by a qualified medical practitioner, provided utilization in the United States, and is that the case is serious, disabling or used to code and classify morbidity data between work-related and non-work- significant. from inpatient and outpatient records, related cases, minor aches and pains, or Second, other symptoms mentioned in physicians’ offices, and most NCHS inappropriate employee reports. This is OSHA’s question do not represent cases surveys. The following table includes a no different for MSD cases than for
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other types of injuries and illnesses, and MSDs occurring in the workplace, and cases that are serious, have progressed and does not represent a new problem in the that an additional ‘‘persistent pain’’ become debilitating. Only those cases with determination of work-related injury criterion is unnecessary for purposes of serious medical findings, lost workdays, and illness. There have always been restricted days and those receiving medical the recordkeeping system. treatment are currently recordable—not those disputes between workers and New hires with fleeting pain that goes away with a good employers over the existence of an nights rest (Ex. 15: 371). injury or illness and whether it is work- Some commenters encouraged OSHA related. If an employer subsequently to find a way to exclude MSD cases that After a review of the record on this demonstrates that a worker is involve minor muscle soreness in newly topic, OSHA finds that no special malingering or determines that an injury hired employees, i.e., to allow provision for newly hired or transferred or illness or is not work-related (using employers to not record MSDs occurring workers should be included in the final OSHA’s definition of work-related), the during a ‘‘break-in’’ period (see, e.g., rule. As the National Safety Council employer may remove the recorded Exs. 15: 27, 31, 39, 82, 87, 105, 186, 198, stated, it would be very difficult to entry from the OSHA 300 Log. 204, 221, 239, 272, 283, 289, 303, 330, identify a single industry-wide method Although OSHA believes that pain or 359, 374, 412, 440). For example, the for dealing with break-in or work other symptoms indicate an injury or American Meat Institute (Ex. 15: 330) conditioning periods. Any method of illness that warrants additional analysis, remarked: ‘‘Employees returning from exempting such cases would risk the final rule has not adopted persistent vacation, or other extended break excluding legitimate work-related, symptoms alone, whether lasting for 7 periods from the job function, could serious MSD cases. A newly hired days or any other set time period, as an have normal muscle aches to which hot/ employee can be injured just as easily automatic recording criterion. OSHA is cold packs could provide relief. as a worker who has been on the job for concerned about workers who Recording such cases would not meet many years. In fact, inexperience on the experience persistent pain for any the purpose [of the OSHA Act] either.’’ job may contribute to an MSD injury or reason, and such pain, if work-related, On the same topic, the National Safety illness. For example, a new worker who may well warrant an inquiry into the Council (Ex. 15: 359) wrote: is not aware of the need to get assistance employee’s work conditions and the to move a heavy load or perform a The concept of forgiveness for a short taking of administrative actions. strenuous function may attempt to do period of adjustment to return to work makes the task without help and be hurt in the However, pain or other symptoms, good sense in industries that are traditionally standing alone, have not ordinarily been very resistant to early return to work process. Cases of this type, if captured by the OSHA recordkeeping programs. If allowing for a short ‘‘break-in’’ determined to be work-related, are system, and OSHA has accordingly not period helps get workers safely and appropriately included in national adopted persistent musculoskeletal pain comfortably back to full productivity and statistics on occupational injuries and as a recording criterion, for the earning capacity it should be seriously illnesses. following reasons. considered. The Council recommends, OSHA notes that minor muscle First, as discussed earlier, OSHA does however, that no specific method be soreness, aches, or pains that do not not believe that MSD cases should developed in the proposed rule because meet one or more of the general receive differential treatment for situations may vary greatly from industry to recording criteria will not be recorded industry. recording purposes, and the final rule on the OSHA 300 Log. Therefore, the does not contain different criteria for The Harsco Corporation (Ex. 15: 105) system already excludes minor aches recording MSD cases; instead, it relies suggested ‘‘Construction activities can and pains that may occur when on the general criteria of § 1904.7 to be a physically demanding occupation. employees are newly hired, change jobs, capture MSD cases. OSHA finds that, for If a person hasn’t worked in a period of or return from an extended absence. recordkeeping purposes, MSD pain is no time, the first couple of days can be very These cases will be recorded only if different in nature than the pain caused tough. To transfer a person to a different they reach the level of seriousness that by a bruise, cut, burn or any other type task which would allow for the affected requires recording. The final rule’s of occupational injury or illness. For body part to rest should have no bearing definition of first aid includes hot/cold example, the OSHA rule does not on recordability if no other treatment is treatments and the administration of contain a criterion requiring that if a required.’’ non-prescription strength analgesics, burn, cut or bruise results in pain for Other commenters disagreed, two of the most common and seven days it is automatically however, that a recording exemption for conservative methods for treating minor recordable. Creating a special provision injuries occurring during a break-in muscle soreness. Thus, the final rule for MSD pain would create an period was appropriate (see, e.g., Exs. allows newly hired workers to receive inconsistency in the rule. 15: 68, 359, 371). For example, the State these first aid treatments for minor Further, OSHA believes that the of New York Workers’ Compensation soreness without the case being provisions of the final recordkeeping Board (Ex. 15: 68) stated that: recordable. rule, taken together will appropriately As to the exclusion of minor soreness The Ergonomics Rulemaking capture reliable, consistent, and commonly occurring to newly hired accurate data on MSD cases. employees or employees on a rehab Many of the comments OSHA Incorporating a clear definition of assignment during a ‘‘break-in stage’’, we do received on the proposed recordkeeping MSDs, clarifying the rule’s requirements not envision any reason to exclude reporting rule referred to OSHA’s efforts to for determining work-relatedness; and solely on this basis. The criteria should not develop an ergonomics standard. refining the definitions of restricted be to whom the injury happens, but rather Several commenters argued that OSHA work, first aid and medical treatment; whether the injury would otherwise be was trying, through the recordkeeping will all work together to improve the reportable regardless of who is injured. rule, to collect data to support an quality of the Log data on MSDs. OSHA The United Food and Commercial ergonomics standard (see, e.g., Exs. 22, concludes, based on an analysis of the Workers Union (UFCW) argued: 183, 215, 304, 346, 397). Typical of record evidence on MSDs, that the We could not disagree more with the these views was that of the National general recording criteria will enhance agency. The current proposal in fact screens Beer Wholesalers Association (NBWA) the data on work-related, non-minor out all fleeting cases, and includes only those (Ex. 15: 215):
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NBWA is especially troubled by the contained in this recordkeeping rule Section 1904.29 Forms likelihood that the new definitions of what would conflict in any way with OSHA’s injuries must be recorded and reported in the Section 1904.29, titled ‘‘Forms,’’ ergonomics rulemaking. Unlike the establishes the requirements for the current proposed rule are intended proposed ergonomics standard, the final artificially to inflate the number of reported forms (OSHA 300 Log, OSHA 300A musculoskeletal disorders, whether work- ergonomics standard does not use an Annual Summary, and OSHA 301 related or not. Such a surge in MSDs could OSHA recordable case as a ‘‘trigger’’ that Incident Report) an employer must use be used to justify additional work on a would require an employer to to keep OSHA Part 1904 injury and workplace ergonomics rule despite the implement an ergonomics program. As illness records, the time limit for notable lack of a scientific basis for a result, a recordable musculoskeletal recording an injury or illness case, the regulation in this area. disorder does not necessarily mean that use of substitute forms, the use of Other commenters believed that the employer is required to implement computer equipment to keep the OSHA was using the recordkeeping rule an ergonomics program. The records, and privacy protections for to conduct a ‘‘backdoor rulemaking’’ to recordkeeping rule’s provisions on the certain information recorded on the control ergonomics hazards in the reporting of MSDs simply address the OSHA 300 Log. workplace (see, e.g., Exs. 15: 86, 215, most consistent and appropriate way to Paragraph 1904.29(a) sets out the 287, 304, 404, 412, 426). For example, record injury and illness data on these basic requirements of this section. It the Reynolds Aluminum Company disorders. MSDs, like all other injuries directs the employer to use the OSHA stated that: and illnesses, must be evaluated for 300 (Log), 300A (Summary), and 301 Reynolds supports the inclusion of their work-relatedness and their (Incident Report) forms, or equivalent musculo-skeletal disorders (MSDs) on the recordability under the recordkeeping forms, to record all recordable OSHA log, but does not support the industry- rule’s general recording criteria; only if occupational injuries and illnesses. wide application of the Ergonomics Program the MSD meets these tests is the case Paragraph 1904.29(b) contains Management Guidelines For Meatpacking recordable. Additionally, OSHA has requirements in the form of questions Plants as the criteria for determining required the recording of MSDs for and answers to explain how employers recordability. By incorporating these many years. guidelines into Appendix B, OSHA would be are to implement this basic requirement. implementing an ergonomics program. It The recordkeeping rule and the Paragraph 1904.29(b)(1) states the would be inappropriate and without legal or ergonomics standard treat MSDs requirements for: (1) Completing the scientific basis to burden all industries with somewhat differently because the establishment information at the top of ergonomic guidelines designed for a specific, purpose of the two rules is different. the OSHA 300 Log, (2) making a one- or unique industry (Ex. 15: 426). Thus, although many of the two-line entry for each recordable injury Several commenters stated that the requirements in the two rules are the and illness case, and (3) summarizing injury and illness recordkeeping rules same, some requirements reflect the the data at the end of the year. should not address musculoskeletal different purposes of the two Paragraph 1904.29(b)(2) sets out the disorders until after an ergonomics rulemakings. For example, the requirements for employers to complete standard has been completed (see, e.g., recordkeeping rule defines MSDs more the OSHA 301 Incident Report form (or Exs. 15: 13, 95, 393). For example, broadly than the ergonomics rule equivalent) for each recordable case Entergy Services, Inc. (Ex. 15: 13) because one of the purposes of the Part entered on the OSHA 300 Log. The expressed the following concerns: 1904 recordkeeping system is to gather requirements for completing the annual broad information about injuries and This area is of concern since there is no summary on the Form 300A are found standard that really covers this issue except illnesses; the ergonomics standard, in at Section 1904.32 of the final rule. contrast, is designed to protect workers the meat packers standard * * * It is Required Forms believed that to record this type case, a from those MSD hazards the employer standard should be in place or language has identified in their job. Another OSHA proposed to continue to should be written to look at true disorders difference between the two rules is that require employers to keep both a Log with long term effect as compared to short the ergonomics standard requires (Form 300) and an Incident Report form term symptoms. employers to evaluate employee reports (Form 301) for recordkeeping purposes, Many commenters also made of MSD signs and symptoms that last for just as they have been doing under the comments on the overall debate about seven consecutive days, although the former rule. OSHA received no ergonomics, i.e., that the medical recordkeeping rule does not require comments on the use of two forms for community has not reached consensus employers to record signs and recordkeeping purposes, i.e., a Log with on what constitutes an MSD (see, e.g., symptoms that last for seven a one-line entry for each case and a Exs. 15: 116, 1267, 323, 355), that there consecutive days unless such signs or supplemental report that requires is too much scientific uncertainty about symptoms involve medical treatment, greater detail about each injury or the issue of ergonomics (see, e.g., Exs. days of restricted work, or days away illness case. OSHA has therefore 15: 57, 215, 304, 312, 342, 344, 355, 393, from work. The record in the continued to require two recordkeeping 397, 412, 424), that science and ergonomics rulemaking strongly forms in the final rule, although these medicine cannot tell what is work- supported early reporting of MSD signs have been renumbered (they were related and what is not (see, e.g., Exs. and symptoms because such early formerly designated as the OSHA 200 15: 204, 207, 218, 323, 341, 342, 3546, reporting reduces disability, medical Log and the OSHA 101 Supplementary 408, 412, 424, 443), that OSHA needs to costs, and lost productivity. However, Report). do more research before issuing a rule evidence in the recordkeeping In addition to establishing the basic (Ex. 15: 234), that ‘‘musculoskeletal rulemaking did not support a requirements for employers to keep disorder’’ is a vague category (Ex. 15: requirement that persistent signs and records on the OSHA 300 Log and 393), and that OSHA should drop the symptoms of all occupational injuries OSHA 301 Incident Report and issue until the science is better (Ex. 15: and illnesses be recorded on the OSHA providing basic instructions on how to 204). Log, and the final recordkeeping rule complete these forms, this section of the OSHA does not agree that the accordingly contains no such rule states that employers may use two provisions on the recording of MSDs requirement. lines of the OSHA 300 Log to describe
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an injury or illness, if necessary. One commenter urged OSHA to adopt provided that the electronic record or Permitting employers to use two lines a 21-day period because conducting a paper forms are equivalent to the OSHA when they need more space and thorough investigation to determine 300 Log. A form is deemed to be specifying this information in the rule whether a case is work-related or a ‘‘equivalent’’ to the OSHA 300 Log if it and on the Log responds to several recurrence of an old case can sometimes can be read and understood as easily as comments (see, e.g., Exs. 37; 15: 138, take longer than 7 or even 10 days (Ex. the OSHA form and contains at least as 389) about the lack of adequate space for 15: 184). In the final rule, OSHA is much information as the OSHA 300 Log. descriptive information on the proposed adopting a 7 calendar-day time limit for In addition, the equivalent form must be OSHA 300 Log form. OSHA believes the recording of an injury or illness that completed in accordance with the that most injury and illness cases can be meets the rule’s recording criteria. For instructions used to complete the OSHA recorded using only one line of the Log. many employers, the 7 day calendar 300 Log. These provisions are intended However, for those cases requiring more period will be longer than the former 6 to balance OSHA’s obligation, as set space, this addition to the Log makes it working day period. Although it is true forth in Section 8(d) of the OSH Act, to clear that two lines may be used to that, in other cases, a 7 calendar-day reduce information collection burdens describe the case. The OSHA 300 Log is limit may be slightly shorter than the on employers as much as possible, on designed to be a scannable document former rule’s 6 working-day limit, the the one hand, with the need, on the that employers, employees and Agency believes that the 7 calendar-day other hand, to maintain uniformity of government representatives can use to rule will provide employers sufficient the data recorded and provide review a fairly large number of cases in time to receive information and record employers flexibility in meeting OSHA’s a brief time, and OSHA believes that the case. In addition, a simple ‘‘within recordkeeping requirements. These employers will not need more than two a week’’ rule will be easier for provisions also help to achieve one of lines to describe a given case. employers to remember and apply, and OSHA’s goals for this rulemaking: to Employers should enter more detailed is consistent with OSHA’s decision, in allow employers to take full advantage information about each case on the this rule, to move from workdays to of modern technology and computers to OSHA 301 form, which is designed to calendar days whenever possible. The meet their OSHA recordkeeping accommodate lengthier information. Agency believes that 7 calendar days is obligations. Deadline for Entering a Case ample time for recording, particularly Several commenters were concerned since the final rule, like the former rule, that computerized records would make Paragraph 1904.29(b)(3) establishes allows employers to revise an entry it more difficult for employees to access the requirement for how quickly each simply by lining it out or amending it the records (see, e.g., Exs. 15:379, 380, recordable injury or illness must be if further information justifying the 418, 438). Representative of these views recorded into the records. It states that revision becomes available. The final is a comment from the United Auto the employer must enter each case on rule does contain one exception for the Workers (UAW): the OSHA 300 Log and OSHA 301 Form 7 day recording period: if an employee within 7 calendar days of receiving Electronic data collection is an essential experiences a recordable hearing loss, information that a recordable injury or step to moving forward, especially regarding and the employer elects to retest the data analysis for large worksites. However, as illness has occurred. In the vast majority employee’s hearing within 30 days, the it works today electronic collection can also of cases, employers know immediately employer can wait for the results of the be an obstacle to prompt availability to or within a short time that a recordable retest before recording. persons without direct access to the case has occurred. In a few cases, computer system. For this reason, OSHA however, it may be several days before Equivalent Forms and Computerized should require the availability of electronic the employer is informed that an Records information to employees and employee employee’s injury or illness meets one representatives in the same time interval as Commenters were unanimous in hard copy information, regardless of whether or more of the recording criteria. urging OSHA to facilitate the use of The former recordkeeping rule the computer system is maintained at the site computers and to allow the use of required each injury or illness to be (Ex. 15: 438). alternative forms in OSHA entered on the OSHA Log and Summary OSHA does not believe that recordkeeping (see, e.g., Exs. 21, 22, no later than six working days after the computerization of the records will 15:9, 11, 45, 72, 95, 111, 184, 262, 271, employer received information about compromise timely employee, employer 288, 305, 318, 341, 346, 389, 390, 396, the case. OSHA proposed to change this or government representative access to 405, 424, 434, 438). The comments of interval to 7 calendar days. Several the records. To ensure that this is the the U.S. West Company (Ex. 15:184) are commenters agreed that allowing 7 case, paragraph § 1904.29(b)(5) of the representative of these views: calendar days would simplify the final rule allows the employer to keep reporting time requirement and reduce U S WEST strongly supports provisions in records on computer equipment only if confusion for employers (see, e.g., Exs. the proposed rule that allow ‘‘equivalent’’ the computer system can produce paper 36; 15: 9, 36, 65, 107, 154, 179, 181, 203, forms instead of the OSHA Forms 300 and copies of equivalent forms when access 301. U S WEST also supports the provisions 332, 369, 387). Other commenters (see, that would allow use of data processing to them is needed by a government e.g., Exs. 15: 46, 60, 82, 89, 184, 204, equipment and computer printouts of representative, an employee or former 225, 230, 239, 283, 288, 305, 348, 375, equivalent forms. These provisions allow employee, or an employee 390, 346, 347, 348, 358, 389, 409, 423, employers considerable flexibility and representative, as required by 424, 431) objected to the proposed 7 greatly reduced paperwork burdens and §§ 1904.35 or 1904.40, respectively. Of calendar-day requirement, principally costs, especially for larger multi-site course, if the employee requesting on the grounds that the proposed 7 employers. access to the information agrees to calendar-day time limit would actually Accordingly, paragraphs 1904.29(b)(4) receive it by e-mail, this is acceptable be shorter than the former rule’s 6 and (b)(5) of the final rule make clear under the 1904 rule. working-day limit in some situations, that employers are permitted to record OSHA also proposed specifically to such as if a long holiday weekend the required information on electronic require that, on any equivalent form, intervened (see, e.g., Exs. 15: 9, 60, 230, media or on paper forms that are three of the questions on the form 272, 375). different from the OSHA 300 Log, asking for details of the injury or illness
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(proposed questions 16, 17, and 18) be compensation agencies outweighs this consider privacy concern cases for positioned on the form in the same consideration. recordkeeping purposes. order and be phrased in identical OSHA has revised the wording of Paragraph 1904.29(b)(9) permits language to that used on the OSHA 301 these three questions on the final OSHA employers discretion in recording case Incident Report. The three questions 301 form to match the phraseology used information if the employer believes were all designed to obtain more by the Bureau of Labor Statistics (BLS) that doing so could compromise the detailed information about how the in its Annual Survey of Occupational privacy of the employee’s identity, even injury or illness occurred, what Injuries and Illnesses. By ensuring though the employee’s name has not equipment or materials the employee consistency across both the BLS and been entered. This clause has been was using at the time of the injury or OSHA forms, this change will help added because OSHA recognizes that, illness, and the activity the employee those employers who respond both to for specific situations, coworkers who was engaged in at the time of the injury the BLS Annual Survey and keep OSHA are allowed to access the log may be or illness. records. able to deduce the identity of the injured or ill worker and obtain A number of commenters objected to Handling of Privacy Concern Cases innapropriate knowledge of a privacy- the proposed requirement that, on any Paragraphs 1904.29(b)(6) through equivalent form, these three questions sensitive injury or illness. OSHA (b)(10) of the final rule are new and are believes that these situations are be asked in the same order and be designed to address privacy concerns phrased in the same language as on the relatively infrequent, but still exist. For raised by many commenters to the example, if knowing the department in OSHA Incident Report (see, e.g., Exs. 33; record. Paragraph 1904.29(b)(6) requires which the employee works would 37; 15: 9, 41, 44, 59, 60, 119, 132, 156, the employer to withhold the injured or inadvertently divulge the person’s 176, 201, 231, 281, 283, 301, 312, 318, ill employee’s name from the OSHA 300 identity, or recording the gender of the 322, 329, 334, 335, 346). In addition to Log for injuries and illnesses defined by injured employee would identifying that arguing that such a requirement would the rule as ‘‘privacy concern cases’’ and person (because, for example, only one be burdensome and prescriptive, these instead to enter ‘‘privacy concern case’’ woman works at the plant), the commenters pointed out that the in the space where the employee’s name employer has discretion to mask or proposed OSHA recordkeeping form would normally be entered if an injury withhold this information both on the was not identical to many State workers’ or illness meeting the definition of a Log and Incident Report. compensation forms (the forms most privacy concern case occurs. This The rule requires the employer to often used as alternatives to the OSHA approach will allow the employer to enter enough information to identify the forms), which would mean that provide OSHA 300 Log data to cause of the incident and the general employers in these States would, in employees, former employees and severity of the injury or illness, but effect, be forced to use the OSHA forms employee representatives, as required allows the employer to exclude details (Ex. 15: 334). Other commenters argued by § 1904.35, while at the same time of an intimate or private nature. The that being required to use a certain protecting the privacy of workers who rule includes two examples; a sexual format would hamper employers’ have experienced occupational injuries assault case could be described simply internal accident investigations (see, and illnesses that raise privacy as ‘‘injury from assault,’’ or an injury to e.g., Exs. 15: 44, 176, 322). For example, concerns. The employer must also keep a reproductive organ could be described the Kodak Company remarked: a separate, confidential list of these as ‘‘lower abdominal injury.’’ Likewise, In [proposed] section 1904.5(b)(2)— privacy concern cases, and the list must a work-related diagnosis of post ‘‘Questions 16, 17 & 18 must be asked in the include the employee’s name and the traumatic stress disorder could be same order and using identical language from case number from the OSHA 300 Log. described as ‘‘emotional difficulty.’’ the Form 301.’’ Companies, like Kodak, have This separate listing is needed to allow Reproductive disorders, certain cancers, well established techniques to ascertain the a government representative to obtain contagious diseases and other disorders cause of the injury and illness. This the employee’s name during a that are intimate and private in nature requirement would actually hamper our workplace inspection in case further ability to find the root cause of an accident. may also be described in a general way This requirement should be eliminated from investigation is warranted and to assist to avoid privacy concerns. This allows the rule. (Ex. 15: 322) employers to keep track of such cases in the employer to avoid overly graphic the event that future revisions to the descriptions that may be offensive, The final rule does not include a entry become necessary. without sacrificing the descriptive value requirement that certain questions on an Paragraph 1904.29(b)(7) defines of the recorded information. equivalent form be asked in the same ‘‘privacy concern cases’’ as those Paragraph 1904.29(b)(10) protects order and be phrased in language involving: (i) An injury or illness to an employee privacy if the employer identical to that used on the OSHA 301 intimate body part or the reproductive decides voluntarily to disclose the form. Instead, OSHA has decided, based system; (ii) an injury or illness resulting OSHA 300 and 301 forms to persons on a review of the record evidence, that from a sexual assault; (iii) a mental other than those who have a mandatory employers may use any substitute form illness; (iv) a work-related HIV right of access under the final rule. The that contains the same information and infection, hepatitis case, or tuberculosis paragraph requires the employer to follows the same recording directions as case; (v) needlestick injuries and cuts remove or hide employees’ names or the OSHA 301 form, and the final rule from sharp objects that are other personally identifying information clearly allows this. Although the contaminated with another person’s before disclosing the forms to persons consistency of the data on the OSHA blood or other potentially infectious other than government representatives, 301 form might be improved somewhat material, or (vi) any other illness, if the employees, former employees or if the questions asking for further details employee independently and authorized representatives, as required were phrased and positioned in an voluntarily requests that his or her name by paragraphs 1904.40 and 1904.35, identical way on all employers’ forms, not be entered on the log. Paragraph except in three cases. The employer may OSHA has concluded that the additional 1904.29(b)(8) establishes that these are disclose the forms, complete with burden such a requirement would the only types of occupational injuries personally identifying information, (2) impose on employers and workers’ and illnesses that the employer may only: (i) to an auditor or consultant
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hired by the employer to evaluate the April 30 of the following year so that establishment and its employees, and safety and health program; (ii) to the employees can be aware of the the dual certifications required by extent necessary for processing a claim occupational injury and illness § 1904.32 of the rule. Finally, a separate for workers’ compensation or other experience of the establishment in 300A Form makes it easier to attach to insurance benefits; or (iii) to a public which they work. The form contains the reverse side of the form worksheets health authority or law enforcement space for entries for each of the columns that are designed to help the employer agency for uses and disclosures for from the Form 300, along with calculate the average number of which consent , an authorization, or information about the establishment, employees and hours worked by all opportunity to agree or object is not and the average number of employees employees during the year. required under section 164.512 of the who worked there the previous year, The majority of the changes to the final rule on Standards for Privacy of and the recordkeeper’s and corporate final forms (compared with the forms Individually Identifiable Health officer’s certification of the accuracy of used with the former rule and the Information, 45 CFR 164.512. the data recorded on the summary. proposed forms) have been made to These requirements have been (These requirements are addressed reflect the requirements of the final rule included in § 1904.29 rather than in further in Section 1904.32 of the final and are needed to align the forms with § 1904.35, which establishes rule and its associated preamble.) the final regulatory requirements. All of requirements for records access, because 3. The OSHA Form 301, Injury and the other changes to the forms reflect waiting until access is requested to Illness Report, replaces the former formatting and editorial changes made remove identifying information from the OSHA 101 Form. Covered employers are to simplify the forms, make them easier OSHA 300 Log could unwittingly required to fill out a one-page form for to understand and complete, and compromise the injured or ill worker’s each injury and illness recorded on the facilitate use of the data. The forms have privacy and result in unnecessary Form 300. The form contains space for been incorporated into an information delays. The final rule’s overall approach more detailed information about the package that provides individual to handling privacy issues is discussed injured or ill employee, the physician or employers with several copies of the more fully in the preamble discussion of other health care professional who cared OSHA 300, 300A, and 301 forms; the employee access provisions in for the employee (if medical treatment general instructions for filling out the § 1904.35. was necessary), the treatment (if any) of forms and definitions of key terms; an the employee at an emergency room or example showing how to fill out the 300 The Treatment of Occupational Illness hospital, and descriptive information Log; a worksheet to assist employers in and Injury Data on the Forms telling what the employee was doing computing the average number of The treatment of occupational injury when injured or ill, how the incident employees and the total number of and illness data on the OSHA forms is occurred, the specific details of the hours worked by employees at the a key issue in this rulemaking. Although injury or illness, and the object or establishment in the previous year; a the forms themselves are not printed in substance that harmed the employee. non-mandatory worksheet to help the the Code of Federal Regulations (CFR), (Most employers use a workers’ employer compute an occupational they are the method OSHA’s compensation form as a replacement for injury and illness rate; and instructions recordkeeping regulation uses to meet the OSHA 301 Incident Report.) telling an employer how to get the Agency’s goal of tracking and The use of a three-form system for additional help by (1) accessing the reporting occupational injury and recordkeeping is not a new concept. The OSHA Internet home page, or (2) by illness data. As such, the forms are a OSHA recordkeeping system used a calling the appropriate Federal OSHA central component of the recordkeeping separate summary form from 1972 to regional office or the OSHA approved system and mirror the requirements of 1977, when the Log and Summary forms State-Plan with jurisdiction. The the Part 1904 regulation. The final Part were combined into the former OSHA package is included in final rule Section 1904 rule requires employers to use Form 200 (42 FR 65165). OSHA has VI, Forms, later in this preamble. three forms to track occupational decided that the three-form system (the injuries and illnesses: the OSHA 300, 300 Log, the 300A summary, and the The Size of the OSHA Recordkeeping 300A, and 301 forms, which replace the 301 Incident Report) has several Forms OSHA 200 and 101 forms called for advantages. First, it provides space for The OSHA recordkeeping forms under the former recordkeeping rule, as more cases to be entered on the Log but required by the final Part 1904 follows: keeps the Log to a manageable size. recordkeeping rule are printed on legal 1. The OSHA Form 300, Log of Work- Second, it helps to ensure that an size paper (81⁄2″ x 14″). The former Related Injuries and Illnesses, replaces injured or ill employee’s name is not rule’s Log was an 11 by 17-inch form, the Log portion of the former OSHA posted in a public place. When the the equivalent of two standard 81⁄2 by Form 200 Log and Summary of forms were combined in 1977 into a 11-inch pages. The former 200 Log was Occupational Injuries and Illnesses. The single form, employers occasionally criticized because it was unwieldy to OSHA 300 Log contains space for a neglected to shield an employee’s name copy and file and contained 12 columns description of the establishment name, on the final sheet of the 200 Log, even for recording occupational injury and city and state, followed by a one-line though the annual summary form was occupational illness cases. The space for the entry for each recordable designed to mask personal identifiers. proposed OSHA 300 Log and Summary injury and illness. The use of a separate 300A summary would have fit on a single 81⁄2 by 11- 2. The OSHA Form 300A, Summary of form precludes this possibility. Third, inch sheet of paper (61 FR 4050), a Work-Related Injuries and Illnesses, the use of a separate summary form (the change that would have been made replaces the Summary portion of the final rule’s Form 300A) allows the data possible by the proposed elimination of former OSHA Form 200 Log and to be posted in a user-friendly format redundancies on the former 200 Log and Summary of Occupational Injuries and that will be easy for employees and of certain data elements that provided Illnesses. The Form 300A is used to employers to use. Fourth, a separate counts of restricted workdays and summarize the entries from the Form 300A Form provides extra space for separate data on occupational injury 300 Log at the end of the year and is information about an employee’s right and illness cases. The proposed OSHA then posted from February 1 through to access the Log, information about the 300 Form was favorably received by a
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large number of commenters (see, e.g., easier to manage, OSHA has concluded under the lost time umbrella. They Exs. 19, 44, 15: 48, 157, 246, 307, 347, that a form of that size is too small to never really belonged there.’’ William K. 351, 373, 374, 378, 384, 391, 395, 396, accommodate the data fields required Principe of the law firm of Constangy, 427, 434, 441, 443). For example, the for complete and accurate reporting. Brooks & Smith, LLC, stated that: National Association of Plumbing- Accordingly, OSHA has redesigned The elimination of the term ‘‘lost work Heating-Cooling Contractors (NAPHCC) the OSHA 300 Log to fit on a legal size days’’ is a good idea, because its use under stated: (81⁄2 x 14 inches) piece of paper and to the existing recordkeeping regulations has NAPHCC applauds the Agency’s efforts to clarify that employers may use two lines been confusing. Recordkeepers have equated simplify the Injury and Illness Log and to enter a case if the information does ‘‘lost work days’’ with ‘‘days away from Summary in the form of a new Form 300 and not fit easily on one line. The OSHA work,’’ but have not thought that ‘‘lost work Form 301. Employers will be more forms 300A and 301, and the remainder days’’ included days of ‘‘restricted work comfortable with the one-page forms—they of the recordkeeping package, have also activity.’’ Thus, the elimination of ‘‘lost work appear less ominous than the oversized 200 days’’ will result in more understandable been designed to fit on the same-size terminology. Form and therefore have a better chance of paper as the OSHA 300 Log. For those being completed in a timely and accurate employers who use computerized The Hoffman-La Roche, Inc. company manner (Ex. 15: 443, p. 6). systems (where handwriting space is not agreed with OSHA’s proposal to A number of commenters were as important) equivalent computer- eliminate the term lost workdays from concerned that proposed the 300 form generated forms can be printed out on the system, stating that ‘‘[t]he term ‘‘lost would fail to capture important data and 81⁄2 x 11 sheets of paper if the printed workdays’’ is confusing and does not argued that the former Log should be copies are legible and are as readable as clearly define whether the case involved retained (see, e.g., Exs. 15:15, 47, 283, the OSHA forms. days away from work or restricted days. 369, 429, 438). The primary argument of Commenters raised four major issues However, the term ‘‘lost workday case’’ this group of commenters was that the concerning the OSHA 300 Log: (1) still has a place in defining a case that size of the form should not determine Defining lost workdays (discussed has either days away from work or which data elements were included on below); (2) collecting separate data on restricted days.’’ The Jewel Coal and the Log and which were not. The occupational injury and occupational Coke Company (Ex. 15: 281) remarked comment of the International Union, illness (discussed below); (3) collecting that: United Automobile, Aerospace & separate data on musculoskeletal [w]e believe that the listing of restricted Agricultural Implement Workers of disorders (discussed below and in the work injuries/illnesses has its purpose as to America—UAW summed up this summary and explanation associated the consideration of the seriousness of the position: ‘‘The UAW uses this data on with § 1904.12; and (4) recurrences injury or illness. However, we believe that a yearly basis when it becomes available (discussed in the summary and restricted work duty injuries/illnesses should at the national level, and on a daily be placed in a separate category from days explanation associated with § 1904.6, away from work and should not be basis at the plant level. Compared to the Determination of new cases). In considered as serious as accidents with days value of the summary data and data addition, commenters raised numerous away from work but are in fact more serious series, the goal of reducing the size of minor issues concerning the 300 Log than first Aid cases or other medically the form to something easily Xeroxed is data elements and forms design; these reportable cases. We believe that the listing silly’’ (Ex. 15: 438, p. 2). The are discussed later in this section. of the date of return of the employee to full International Brotherhood of Teamsters work activities may very well have it’s place commented ‘‘OSHA believes the change Defining Lost Workdays on the OSHA Form 301 or other results in a simplified form that fits on OSHA proposed to eliminate the term supplemental forms. a standard sheet of paper that can be ‘‘lost workdays,’’ by replacing it with In the final rule, OSHA has easily copied and kept on a personal ‘‘days away from work’’ (61 FR 4033). eliminated the term ‘‘lost workdays’’ on computer. * * * The storage capacity of The OSHA recordkeeping system has the forms and in the regulatory text. The an additional page in a personal historically defined lost workdays as use of the term has been confusing for computer is hardly burdensome. The including both days away from work many years because many people amount of information that can be and days of restricted work activity, and equated the terms ‘‘lost workday’’ with collected should always be need based, the Recordkeeping Guidelines discussed ‘‘days away from work’’ and failed to and never be limited to what an 81⁄2″ x how to properly record lost workday recognize that the former OSHA term 11″ sheet of paper can hold’’ (Ex. 15: cases with days away from work and included restricted days. OSHA finds 369, p. 49). lost workday cases with days of that deleting this term from the final OSHA agrees that the proposed Log restricted work activity (Ex. 2, p. 47, 48). rule and the forms will improve clarity would have resulted in a significant loss However, many use the term ‘‘lost and the consistency of the data. of useful data and has therefore workday’’ in a manner that is The 300 Log has four check boxes to maintained several data fields on the synonymous with ‘‘day away from be used to classify the case: death, final OSHA 300 Log to capture counts work,’’ and the term has been used day(s) away from work, days of of restricted work days and collect inconsistently for many years. Many restricted work or job transfer; and case separate data on occupational injuries commenters on the proposal agreed that meeting other recording criteria. The and several types of occupational the term ‘‘lost workday’’ should be employer must check the single box that illness. However, there is a limit to the deleted from the forms and the reflects the most severe outcome information that can be collected by any recordkeeping system because of this associated with a given injury or illness. one form. OSHA wishes to continue to confusion (see, e.g., Exs. 33; 37; 15: 9, Thus, for an injury or illness where the make it possible for those employers, 26, 69, 70, 105, 107, 136, 137, 141, 146, injured worker first stayed home to especially smaller employers, who wish 176, 184, 204, 224, 231, 266, 271, 272, recuperate and then was assigned to to keep records in paper form to do so. 273, 278, 281, 287, 288, 301, 303, 305, restricted work for several days, the It is also important that the Log be user- 347, 384, 414, 428). The Akzo Nobel employer is required only to check the friendly, easily copied and filed, and Chemicals Company (Ex. 37) simply box for days away from work (column otherwise manageable. Although a form commented ‘‘[a] big ATTA BOY for I). For a case with only job transfer or 81⁄2 x 11 inches in size would be even removing restricted work cases from restriction, the employer must check the
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box for days of restricted work or job Elimination of the term ‘‘lost workdays’’ in record, thereby, not providing a good transfer (Column H). However, the final regard to restricted workdays would surely data base for comparison.’’ Log still allows employers to calculate be a step in the direction of simplicity and However, a number of commenters the incidence rate formerly referred to focus. The severity of an injury/illness is opposed the proposal to eliminate the as a ‘‘lost workday injury and illness more clearly indicated by the number of days counting of restricted days (see, e.g., away from work than by any other means. rate’’ despite the fact that it separates The inclusion of cases involving restricted Exs. 35; 15: 31, 34, 41, 61, 72, 74, 181, the data formerly captured under this work only clouds the issue. 186, 281, 310, 350, 359, 369, 371, 380, heading into two separate categories. 438). For example, Linda Ballas & Because the OSHA Form 300 has The Monsanto Corporation (Ex. 28) Associates (Ex. 15: 31) argued that: separate check boxes for days away from urged the Agency to do away with all day counts, noting that Monsanto: [r]estricted work days should be counted. work cases and cases where the A restricted case with 1 restricted day would employee remained at work but was [u]ses the recordable case as the basis of be less severe than a restricted work case temporarily transferred to another job or our performance measurement system. We with 30 days. The elimination of the assigned to restricted duty, it is easy to measure the number of days away and restricted work activity day count will add the totals from these two columns restricted but rarely look at them. We agree provide an incentive for employers to together to obtain a single total to use that OSHA should eliminate the number of temporarily assign injured or ill workers to days of restricted work from the requirements jobs with little or no productive value to in calculating an injury and illness but we would also delete the number of days incidence rate for total days away from avoid recording a case as one involving days away as well. While the number of days are away from work.* * * work and restricted work cases. some measure of ‘‘severity’’, we think a better Most of these commenters argued that Counting Days of Restricted Work or Job and simpler measure is just the cases rate for fatalities and/or days away cases. restricted work day data are needed to Transfer gauge the severity of an occupational The commenters who argued for Although the final rule does not use injury or illness (see, e.g., Exs. 15: 31, eliminating the counting of restricted the term ‘‘lost workday’’ (which 34, 41, 181, 186, 310, 369, 371, 438) or workdays offered several reasons: (1) formerly applied both to days away that such data are a measure of lost Doing away with the counting would from work and days of restricted or productivity (see, e.g., Exs. 15: 41, 61, simplify the recordkeeping system and transferred work), the rule continues 281). The American Association of reduce burden on employers (see, e.g., OSHA’s longstanding practice of Occupational Health Nurses stated that Exs. 33; 15: 69, 105, 136, 137, 141, 146, requiring employers to keep track of the ‘‘[O]SHA should be aware that 156, 176, 184, 188, 203, 224, 231, 239, number of days on which an employee modifications to recording restricted 266, 272, 273, 278, 288, 289, 301, 303, is placed on restricted work or is on job work days will result in the loss of 304, 336, 337, 345, 346, 347, 390, 391, transfer because of an injury or illness. valuable information related to the 409, 424, 426, 428, 430, 442); (2) OSHA proposed to eliminate the severity of the injuries/illnesses.’’ The eliminating the day counts would make counting of the number of days of Jewel Coal and Coke Company (Ex. 15: it easier to computerize the records (see, restricted work from the proposed 300 281) stated that: Log (61 FR 4046). The proposal also e.g., Exs. 15: 136, 137, 141, 224, 266, 278); (3) limiting counts of restricted We believe that the listing of restricted asked whether the elimination of the work injuries/illnesses has its purpose as to restricted work day count would work would match workers’ compensation insurance requirements, the consideration of the seriousness of the provide an incentive for employers to injury or illness. However, we believe that temporarily assign injured or ill workers which typically count only days away restricted work duty injuries/illnesses should to jobs with little or no productive value from work (see, e.g., Exs. 15: 225, 336); be placed in a separate category from days to avoid recording a case as one (4) counts of restricted work have little away from work and should not be involving days away from work (61 FR or no value (see, e.g., Exs. 21; 15: 65, considered as serious as accidents with days 4046). 105, 119, 154, 170, 203, 205, 235, 260, away from work but are in fact more serious A large number of commenters 262, 265, 332, 347, 391, 401, 405, 409, than first Aid cases or other medically reportable cases.* * * supported OSHA’s proposal to eliminate 430); (5) restricted workday counts are the counting of restricted work days not used in safety and health programs The North Carolina Department of (see, e.g., Exs. 21; 26; 27; 28; 33; 37; 51; and their evaluation (see, e.g., Exs. 15: Labor (Ex. 15: 186) recommended that: 65, 119, 154, 159, 194, 239, 271, 347, 15: 9, 19, 26, 39, 44, 60, 65, 67, 69, 70, [r]estricted work day counts as well as lost 76, 79, 82, 83, 85, 87, 100, 105, 107, 111, 409, 426, 428); (6) restricted workday work day counts can be measures of the 119, 121, 123, 136, 137, 141, 145, 146, counts are not a good measure of injury severity of individual illnesses/injuries. In 154, 156, 159, 170, 171, 173, 176, 184, and illness severity (see, e.g., Exs. 15: addition through trend analysis lost work day 188, 194, 199, 203, 204, 205, 218, 224, 336, 345); and (7) restricted workday rates and restricted work day rates may be 225, 229, 230, 231, 234, 235, 239, 246, counts are not a uniform or consistent calculated by job, department, etc. to identify 247, 260, 262, 265, 266, 271, 272, 273, measure (see, e.g., Exs. 15: 235, 288, higher risk jobs, departments, etc. and/or measure the effectiveness of interventions 278, 281, 283, 287, 288, 289, 298, 301, 289, 347, 409, 442). For example, the National Grain and and progress in the development of a 303, 304, 305, 307, 317, 321, 332, 334, comprehensive ergonomics program. 336, 337, 341, 345, 346, 347, 351, 364, Feed Association (Ex. 15: 119) argued 368, 373, 384, 390, 391, 392, 401, 405, that ‘‘[t]here is no evidence that the As to OSHA’s question in the 409, 413, 414, 423, 424, 426, 427, 428, current restricted work activity day proposal about the incentive for 430, 434, 437, 440, 442). For example, counts are being used in safety and employers to offer restricted work to the Union Carbide Corporation (Ex. 15: health programs and there is no purpose employee’s in order to avoid recording 391) argued that their: in continuing the restricted work a case with days away from work, a activity count requirement.’’ The number of commenters questioned [e]xperience with tracking lost or restricted Tennessee Valley Authority (Ex. 15: whether such an incentive exists (see, workdays the way it is being done today indicates that it is fruitless. The interest is in 235) argued that ‘‘[o]nly days away from e.g., Exs. 15: 13, 26, 27, 39, 79, 136, 137, the number of lost workday or restricted work or death should be recorded on the 141, 156, 181, 199, 218, 224, 229, 242, workday cases with only minor attention 300 log. Recording of restricted work- 263, 266, 269, 270, 278, 283, 341, 364, being given to the number of days involved. day cases is difficult to consistently 377, 409, 426, 434, 440). For example,
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the United Technologies Company counts of days away from work and Many commenters also criticized (UTC) stated that ‘‘[U]TC does not days of job transfer or restriction. OSHA’s proposal to delete from the Log believe that the recording or not The final rule thus carries forward the separate columns for 7 categories of recording of restricted days will OSHA’s longstanding requirement for occupational illnesses (see, e.g., Exs. 20, influence management’s decision to employers to count and record the 35, 15: 27, 283, 371). These commenters temporarily assign employees to number of restricted days on the OSHA pointed out that these categories of restricted work. The decision to place Log. On the Log, restricted work counts illnesses have been part of the an employee on restricted work is are separated from days away from work recordkeeping system for many years driven by workers’ compensation costs counts, and the term ‘‘lost workday’’ is and that they captured data on illness rather than OSHA incidence rates’’ (Ex. no longer used. OSHA believes that the cases in 7 categories: occupational skin 15: 440). The American Textile burden on employers of counting these diseases or disorders, dust diseases of Manufacturers Association (ATMI) days will be reduced somewhat by the the lungs, respiratory conditions due to agreed: simplified definition of restricted work, toxic agents, poisoning (systemic effects the counting of calendar days rather of toxic materials), disorders due to [A]TMI believes that this will not provide than work days, capping of the counts an incentive for employers to temporarily physical agents, disorders associated assign injured or ill workers to jobs with little at 180 days, and allowing the employer with repeated trauma, and all other or no productive value to avoid recording a to stop counting restricted days when occupational illnesses. Typical of the case as one involving days away from work. the employees job has been permanently views of commenters concerned about The restricted work activity day count is in modified to eliminate the routine job the proposal to delete these columns no way related to an employer wanting to functions being restricted (see the from the Log was the comment of the avoid having days away from work. Workers’ preamble discussion for 1904.7 General United Auto Workers: ‘‘OSHA should compensation claims and, for the most part, Recording Criteria). abandon the plan to change the OSHA company safety awards are based on the Separate 300 Log Data on Occupational 200 form to eliminate illness categories. number of ‘‘lost-time accidents.’’ The The illness categories in the summary counting of restricted work days has never Injury and Occupational Illness presently provide critically necessary been an incentive or disincentive for these OSHA proposed (61 FR 4036–4037) to information about cumulative trauma two key employer safety measures and ATMI eliminate any differences in the way disorders, and useful information about believes that this will not change. (Ex. 15: occupational injuries, as opposed to respiratory conditions’’ (Ex: 15: 348). 156) occupational illnesses, were recorded Several commenters supported the on the forms. The proposed approach Other commenters, however, believed proposed concept of adding a single would not, as many commenters there could be incentive effects (see, column to the form on which employers believed, have made it impossible to e.g., Exs. 15: 13, 31, 74, 111, 359, 369). would enter illness codes that would determine the types and number of correspond to the illness conditions In the final rule, OSHA has decided cases of occupational illnesses at the listed in proposed Appendix B, which to require employers to record the aggregated national level, although it could then be decoded by government number of days of restriction or transfer would have eliminated the distinction classifiers to project national illness on the OSHA 300 Log. From the between injuries and illnesses at the comments received, and based on individual establishment level. In other incidence rates for coded conditions OSHA’s own experience, the Agency words, the proposed approach would (see, e.g., Exs. 20, 15: 27, 369, 371). For finds that counts of restricted days are have involved a coding system that the example, the United Brotherhood of a useful and needed measure of injury BLS could use to project the incidences Carpenters and Joiners of America and illness severity. OSHA’s decision to of several types of occupational stated: require the recording of restricted and illnesses nationally, but would not have The UBC would recommend [that].* * * A transferred work cases on the Log was permitted individual employers to column should be added for an identification also influenced by the trend toward calculate the incidence of illness cases code for recordable conditions from restricted work and away from days at their establishments. Appendix B. (Eg. 1 = hearings loss, 2 = away from work. In a recent article, the Many commenters reacted with CTD’s. 3 = blood lead. Etc.) (Ex. 20). BLS noted that occupational injuries concern to the proposal to eliminate, for After a thorough review of the and illnesses are more likely to result in recording purposes, the distinction comments in the record, however, days of restricted work than was the between occupational injuries and OSHA has concluded that the proposed case in the past. From 1978 to 1986, the occupational illnesses, and to delete the approach, which would have annual rate in private industry for cases columns on the Log used to record eliminated, for recording purposes, the involving only restricted work remained specific categories of illnesses (see, e.g., distinction between work-related constant, at 0.3 cases per 100 full-time Exs. 15: 213, 288, 359, 369, 407, 418, injuries and illnesses, is not workable in workers. Since 1986, the rate has risen 429, 438). For example, Con Edison the final rule. The Agency finds that steadily to 1.2 cases per 100 workers in stated that ‘‘Distinguishing between there is a continuing need for separately 1997, a fourfold increase. At the same injuries and illness is a fundamental identifiable information on occupational time, cases with days away from work and essential part of recordkeeping’’ illnesses and injuries, as well as on declined from 3.3 in 1986 to 2.1 in 1997 (Ex. 15: 21), and the National Institute certain specific categories of (Monthly Labor Review, June 1999, Vol. for Occupational Safety and Health occupational illnesses. The published 122. No. 6, pp. 11–17). It is clear that (NIOSH) discussed the potentially BLS statistics have included separate employers have caused this shift by detrimental effects on the Nation’s estimates of the rate and number of modifying their return-to-work policies occupational injury and illness statistics occupational injuries and illnesses for and offering more restricted work of such a move, stating ‘‘For many years, as well as the rate and opportunities to injured or ill occupational health surveillance number of different types of employees. Therefore, in order to get an purposes * * * NIOSH recommends occupational illnesses, and employers, accurate picture of the extent of that entries on the OSHA log continue employees, the government, and the occupational injuries and illnesses, it is to be categorized separately as illnesses public have found this information necessary for the OSHA Log to capture and injuries’’ (Ex. 15: 407). useful and worthwhile. Separate illness
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and injury data are particularly useful at hyperbaric effects, such as caisson These conditions have been called by the establishment level, where disease; and the effects of radiation, many names, including repetitive stress employers and employees can use them including occupational illnesses caused injuries, cumulative trauma disorders, to evaluate the establishment’s health by x-ray exposure, sun exposure and and overuse injuries. OSHA has decided experience and compare it to the welder’s flash. Because space on the to include a separate column on the Log national experience or to the experience form is at a premium, and because for musculoskeletal disorders (MSDs), of other employers in their industry or column 7e was not used extensively in the preferred term for injuries and their own prior experience. The data are the past (recorded column 7e cases illnesses of the muscles, nerves, also useful to OSHA personnel accounted only for approximately five tendons, ligaments, joints, cartilage and performing worksite inspections, who percent of all occupational illness spinal discs, including those of the can use this information to identify cases), OSHA has not continued this upper extremities, lower extremities, potential health hazards at the column on the new OSHA 300 Log. and back. Many MSDs are caused by establishment. OSHA has, however, added a new workplace risk factors, such as lifting, Under the final rule, the OSHA 300 column specifically to capture hearing repetitive motion, vibration, form has therefore been modified loss cases on the OSHA 300 Log. The overexertion, contact stress, awkward or specifically to collect information on former Log included a column devoted static postures, and/or excessive force. five types of occupational health to repeated trauma cases, which were The repeated trauma column on the conditions: musculoskeletal disorders, defined as including noise-induced former OSHA Log did not permit an skin diseases or disorders, respiratory hearing loss cases as well as cases accurate count of musculoskeletal conditions, poisoning, and hearing loss. involving a variety of other conditions, disorders, both because other There is also an ‘‘all other illness’’ including certain musculoskeletal conditions, such as occupational column on the Log. To record cases disorders. Several commenters hearing loss, were included in the falling into one of these categories, the recommended that separate data be definition of repeated trauma and employer simply enters a check mark in collected on hearing loss (see, e.g., Exs. because many musculoskeletal the appropriate column, which will 20, 53X, p.76, 15: 31). Dedicating a disorders—including lower back allow these cases to be separately column to occupational hearing loss injuries—were excluded. The column counted to generate establishment-level cases will provide a valuable new was limited to disorders classified as summary information at the end of the source of information on this prevalent illnesses, but OSHA instructed year. and often disabling condition. Although employers to record all back cases as OSHA rejected the option suggested precise estimates of the number of injuries rather than illnesses, even by the UBC and others (see, e.g., Exs. 20, noise-exposed workers vary widely by though back disorders are frequently 15: 27, 369, 371)—to add a single industry and the definition of noise associated with exposure to column that would include a code for dose used, the EPA estimated in 1981 occupational stresses over time (Ex. 2, p. different types of conditions—because that about 9 million workers in the 38). such an approach could require manufacturing sector alone were employers to scan and separately tally occupationally exposed to noise levels In its proposal, OSHA asked for entries from the column to determine above 85 dBA. Recent risk estimates comment on the need for a separate the total number of each kind of illness suggest that exposure to this level of column containing information on case, an additional step that OSHA noise over a working lifetime would musculoskeletal disorder (MSD) cases believes would be unduly burdensome. cause material hearing impairment in such as low back pain, tendinitis and Because the scanning and tallying are about 9 percent, or approximately carpal tunnel syndrome. OSHA received complex, this approach also would be 720,000, U.S. workers (NIOSH, 1998). A numerous comments opposing the likely to result in computational errors. separate column for occupational addition of an MSD column to the Log In the final rule, two of the illness hearing loss is also appropriate because (see, e.g., Exs. 15: 9, 60, 78, 105, 122, case columns on the OSHA 300 Log are the BLS occupational injury and illness 136, 137, 141, 201, 218, 221, 224, 266, identical to those on the former OSHA statistics only report detailed injury 278, 305, 308, 318, 346, 395, 397, 406, Log: a column to capture cases of skin characteristics information for those 414, 430). These commenters objected diseases or disorders and one to capture illness cases that result in days away on several grounds: because they cases of systemic poisoning. The single from work. Because most hearing loss believed that including such a column column for respiratory conditions on the cases do not result in time off the job, would make the forms more complex new OSHA Form 300 will capture data the extent of occupational hearing loss (Ex. 15: 414), because the column would on respiratory conditions that were has not previously been accurately have ‘‘no utility’’ (Ex. 15: 397), or formerly captured in two separate reflected in the national statistics. By because the column would only capture columns, i.e., the columns for creating a separate column for a small percentage of total MSD cases respiratory conditions due to toxic occupational hearing loss cases, and (Ex. 15: 210). Several commenters agents (formerly column 7c) and for clearly articulating in section 1904.10 of objected because they believed that an dust diseases of the lungs (formerly the final rule the level of hearing loss MSD column would duplicate column 7b). Column 7g of the former that must be recorded, OSHA believes information already obtained through OSHA Log provided space for data on that the recordkeeping system will, in the case description (see, e.g., Exs. 15: all other occupational illnesses, and that the future, provide accurate estimates of 9, 105, 210, 221, 406). For example, the column has also been continued on the the incidence of work-related loss of law firm of Ogletree, Deakins, Nash, new OSHA 300 Log. On the other hand, hearing among America’s workers. Smoak & Stewart offered comments on column 7e from the former OSHA Log, behalf of a group of employers known which captured cases of disorders due Column on the Log for Musculoskeletal as the ODNSS Coalition, remarking that to physical agents, is not included on Disorders ‘‘The log and system of OSHA the new OSHA Log form. The cases Column 7f of the former Log also was recordkeeping would not benefit from a recorded in former column 7e primarily intended to capture cases involving separate column for musculoskeletal addressed heat and cold disorders, such repetitive motion conditions, such as disorders. The proposed rules for as heat stroke and hypothermia; carpal tunnel syndrome, tendinitis, etc. recording these disorders are clear, and
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the revisions to the ‘‘case description’’ OSHA) (see on the Internet at ftp:// purposes. For example, OSHA column appearing on the OSHA Form 146.142.4.23/pub/special.requests/ envisioned that an employer could enter 300 provide for the ample identification ocwc/osh/). OSHA believes that such a codes in this column to collect data on of the disorders, which will enable all column on the OSHA 300 Log will not occupational injuries and illnesses interested parties to track and analyze only permit more complete and accurate beyond what is required by the OSHA entries of that nature’’ (Ex. 15: 406). reporting of these disorders and provide Part 1904 regulation, such as the results Another group of commenters information on the overall incidence of of accident investigations, whether the contended that a separate MSD column MSDs in the workplace, it will provide case was accepted by workers’ would result in an inaccurate picture of a useful analytical tool at the compensation, or whether or not the MSD incidence because the numbers establishment level. OSHA recognizes employee was hospitalized for recorded would increase as a result of that the column will add some treatment. complexity to the form, but believes that the inclusion of lower back MSDs in the A number of commenters supported the additional complexity will be more cases to be entered in the column (see, the proposed Employer Use column e.g., Exs. 15: 305, 308, 318, 346). than offset by the fact that all recordable MSDs will be captured in a single entry (see, e.g., Exs. 15: 87, 136, 137, 141, 170, Representative of these comments is one 224, 266, 278, 359). Some stated that from the National Association of on the Log. Thus, the total count of employers could utilize the column to Manufacturers (NAM): cases in the MSD column will allow employers, employees, authorized identify cases based on specific criteria Given the over-inclusive definitions of the representatives, and government that could be used in their internal terms ‘‘work-related,’’ ‘‘injury or illness,’’ safety and health evaluations (see, e.g., ‘‘medical treatment’’ and ‘‘MSDs’’ (in representatives to determine, at a Appendix B), and the fact that, for the first glance, what the incidence of these Exs. 15: 136, 137, 141, 170, 224, 266, time, back injuries would be included as disorders in the establishment is. OSHA 278, 359). For example, the National MSDs, we strongly objected to that idea. does not agree with those commenters Safety Council stated ‘‘The Council Under that approach, the MSD numbers who stated that entries in the MSD believes that adding the employer use probably would have been huge, would have column will duplicate information column to the log will effectively reduce painted a grossly inaccurate and misleading recorded in the injury/illness the adverse effects of accountability picture as to the current prevalence of MSDs, systems. This will allow employers to and would have been cited as justification for description; the case description an ergonomics standard. Unless and until column will include additional identify cases for which supervisors and those deficiencies are completely eliminated, information, e.g., on the particular type managers should be held accountable, the NAM remains unalterably opposed to the of MSD (back strain, carpal tunnel using company specific criteria’’ (Ex. 15: inclusion of an MSD column on the OSHA syndrome, wrist pain, tendinitis, etc.). 359, p. 14). Another commenter, Kathy Form 300 (Ex. 15: 305). OSHA also does not agree with those Mull, stated ‘‘The comment on possible OSHA also received numerous commenters who argued that including use of the ‘employer use column’ to note comments supporting the addition of a a separate column for MSDs would cases not included in internal safety separate MSD column on the Log (see, introduce error into the national statistics is a possible mechanism to e.g., Exs. 35; 15: 32, 156, 371, 379, 380, statistics on the incidence of MSDs. The defer pressures on internal performance 415, 418, 438). For example, the United views of these commenters are not measures as tied strictly to OSHA Food and Commercial Workers stated persuasive because the number of recordkeeping’’ (Ex. 15: 278, p. 4). that: reportable lost-workday MSDs is already Several commenters opposed the being captured in national statistics, addition to the Log of an Employer Use Of key concern to our membership is the albeit under two categories (‘‘injuries’’ lack of any categorization for musculoskeletal column, however (see, e.g., Exs. 15: 28, disorders (MSD). A major concern in and ‘‘illnesses’’) that are difficult to 82, 109, 132, 375). Among these was the meatpacking and poultry plants, our interpret. In response to comments that American Petroleum Institute, which committees will now be forced to spend including a separate column on the Log stated ‘‘If the revised regulation meets endless hours poring over the logs, reading will provide OSHA with ‘‘justification API’s recommended system objectives, each individual definition and deciding for an ergonomics standard,’’ the the ‘employer use’ column would not be whether it is a MSD. The logs are often hand Agency notes that it has already written and xerox copies of these are difficult needed. Cases recorded would then be developed and proposed an ergonomics credible, reasonable and meaningful to to read. This is a real burden for workers, standard despite the absence of a single employers, employees (and to OSHA). companies, joint committees and anyone MSD column on employers’ Logs. using the logs (Ex. 15: 371). * * * OSHA should consider the After a thorough review of the record, Miscellaneous 300 Form Issues employer as the primary user of the and extensive consultation with NIOSH The proposed OSHA Form 300 system’’ (Ex. 15: 375A, p. 55). and the BLS to establish the need for contained a column designated as the Commenters also expressed concern such statistics, OSHA has concluded ‘‘Employer Use’’ column. Many that an Employer Use column could that including a separate column on the employers keep two sets of injury and have a negative effect on the use of the final OSHA 300 Log for MSD cases is illness records; one for OSHA Part 1904 data. For example, the Sherman essential to obtain an accurate picture of purposes and another for internal safety Williams Company stated ‘‘It is not the MSD problem in the United States. management system purposes. OSHA necessary to provide column j, for In 1997, more than 600,000 MSDs envisioned that the proposed Employer ‘‘other’’ information that may be resulting in days away from work were Use column would be used to tailor the provided by the employer. It will lead reported to the BLS by employers, Log to meet the needs of the to inconsistent utilization of the although determining this number has establishment’s particular safety and proposed form. Delete column j of the required close cooperation between health program and reduce the practice proposed Form 300’’ (Ex. 15: 132, p. 1). OSHA and the BLS and several ‘‘special some employers have adopted of Several other commenters argued for runs’’ by the BLS (i.e., computer keeping multiple sets of occupational the addition of new data requirements analyses performed especially for injury and illness records for various to the OSHA 300 Log, as follows:
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Commenter Suggested addition to the 300 Log
G. Neil Companies (Ex. 15: 29) ...... Information explaining which employers must keep the Log should be added to the form. Atlantic Dry Dock Corp. (Ex. 15: 179) ...... A line to carry over the totals from previous page should be added at the top of the form. Maine Department of Labor (Ex. 15: 41) ...... The form should include three columns for case type: a column for days away only, a column for days away and restricted, and a column for restricted only to differentiate the three dif- ferent types of cases. Ford Motor Company (Ex. 15: 347) ...... ‘‘To facilitate identification, Ford proposes that the employee’s last four numbers of his or her social security number be included on the OSHA 300 and 301 Forms * * * The last four numbers of the social security number will greatly assist in employee identification and at the same time offer some measure of confidentiality.’’ American Trucking Associations (Ex. 15: 397) .. ‘‘OSHA should add a new column to the proposed OSHA 300 form allowing employers to indi- cate whether an injury occurred off-site. This recommendation is not novel [ ] the current OSHA 101 form asks if the injury or illness occurred on the employer’s premises * * * the inclusion of the ‘off-site’ column is crucial in determining which fixed facilities maintain ab- normally high rates of workplace injuries/illnesses. In addition, this recommendation furthers the goal of requiring motor carriers to record injuries and illnesses to their employees as well as provides valuable information to OSHA and others regarding the employer’s lack of control over the site of the injury.’’
OSHA has not added the fields or —Department where employee normally reworded somewhat from those columns suggested by commenters to works; contained on the former OSHA No. 101, the final 300 or 301 forms because the —Place of accident; but do not require employers or available space on the form has been —Whether the accident occurred on the employees to provide additional allocated to other data that OSHA employer’s premises; and information. considers more valuable. In addition, —Name and address of hospital. Proposed Form 301 there is no requirement in the final rule OSHA’s reasons for deleting these for employers to enter any part of an data items from the final 301 form is The proposed OSHA 301 Injury and employee’s social security number that most are included on the OSHA Illness Incident Record differed in because of the special privacy concerns Form 300 and are therefore not minor respects from the former OSHA that would be associated with that entry necessary on the 301 form. Eliminating 101. For example, a number of fields and employee access to the forms. duplicate information between the two would have been eliminated to reduce However, employers are, of course, free forms decreases the redundancy of the redundancy between the Log and the to collect additional data on data collected and the burden on Incident Report, and several items occupational injury and illness beyond employers of recording the data twice. would have been added to the Incident the data required by the Agency’s Part The employee social security number Report to obtain additional information 1904 regulation. has been removed for privacy reasons. about occupational injuries and illnesses. OSHA proposed to add to the The OSHA 301 Form OSHA believes that the information found in several other data fields on the Form 301 the following: Although the final OSHA 300 Log 301 Form (e.g., the employee’s name, —The date the employee was hired; presents information on injuries and address, and date of birth) provides —The time the employee began work; illnesses in a condensed format, the sufficient information to identify —The time the event occurred; —Whether the employee was treated at final OSHA 301 Incident Record allows injured or ill individuals while an emergency room; space for employers to provide more protecting the confidentiality of social —Whether the employee was detailed information about the affected security numbers. hospitalized overnight as an in- worker, the injury or illness, the OSHA has also added several items to patient; workplace factors associated with the the OSHA Form 301 that were not on accident, and a brief description of how —The equipment, materials or the former OSHA No. 101: chemicals the employee was using the injury or illness occurred. Many —The date the employee was hired; employers use an equivalent workers’ when the event occurred; and —The time the employee began work; —The activity the employee was compensation form or internal reporting —The time the event occurred; engaged in when the event occurred. form for the purpose of recording more —Whether the employee was treated at detailed information on each case, and In addition, the proposed regulation an emergency room; and would have required the employer to this practice is allowed under paragraph —Whether the employee was 1904.29(b)(4) of the final rule. ask several questions (questions 16 hospitalized overnight as an in- through 18) in the same order and using The OSHA Form 301 differs in several patient (the form now requires a the same language as used on the OSHA ways from the former OSHA 101 form check box entry rather than the name forms, in order to obtain more it replaces, although much of the and address of the hospital). consistent and accurate data about these information is the same as the OSHA concludes that these data fields data items. information on the former 101 Form, will provide safety and health A number of commenters approved of although it has been reworded and professionals and researchers with the proposed Form 301 (see, e.g., Exs. reformatted for clarity and simplicity. important information regarding the 21; 15: 32, 153, 246, 324, 369, 374, 380, The final Form 301 does not require the occurrence of occupational injuries and 396, 427, 441). For example, the following data items that were included illnesses. The questions pertaining to International Brotherhood of Teamsters on the former OSHA 101 to be recorded: what the employee was doing, how the (Ex. 15: 369) stated that the union —The employer name and address; injury or illness occurred, what the ‘‘[s]upports the [proposed] —Employee social security number; injury or illness was, and what object or modifications of the OSHA Injury and —Employee occupation; substance was involved have been Illness Incident Record (OSHA Form
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301) to collect more useful OSHA received only one comment these questions to collect data for many information.’’ Other commenters about the contents of the proposed years. The BLS has found that the order preferred the former OSHA 101 form questions: George R. Cook, Jr., of the in which these questions are presented and urged OSHA to retain it (see, e.g., Hearing Conservation Services and the wording of the questions on the Exs. 15: 47, 48, 122, 242). For example, Company, stated: survey form elicit the most complete the Boiling Springs Fire District (Ex. 15: Questions 9, 10, and 16 on the OSHA 301 answers to the relevant questions. 47) opposed any changes to the Log or form should be worded so that the OSHA believes that using the time- 101 forms, stating ‘‘[W]e like the forms combination of the answers to these three tested language and ordering of these we are presently using and feel that the questions could be used as the answer to four questions will have the same information in these forms is adequate. Question F. on the OSHA 300. Therefore, if benefits for employers using the OSHA I am a great believer in the old saying a form 301 is filled out in computerized form, Form 301 as they have had for ‘if it is not broke—why fix it’?’’ that information could then be carried over employers responding to the BLS Many of the commenters who to the form 300 thus eliminating the need for Annual Survey. Matching the BLS specifically addressed the proposed 301 duplicate entry (Ex. 15: 188). wording and order will also result in form were concerned about the privacy As discussed above, final Form 301 benefits for those employers selected to implications of providing employees, no longer requires the employer to participate in the BLS Annual Survey. former employees, and employee include these questions on any To complete the BLS survey forms, representatives with access to the OSHA equivalent form in the same format or employers will only need to copy 301 forms. These concerns are language as that used by the OSHA 301 information from the OSHA Injury and addressed in detail in the section of this form. However, any employer wishing Illness Incident Report to the BLS summary and explanation associated to take the approach suggested by Mr. survey form. This should be easier and with section 1904.35, Employee Cook is free to do so. less confusing than researching and involvement. Many other commenters Several commenters objected to rewording responses to the questions on were concerned with the use of proposed question 16 and questioned two separate forms. equivalent forms (discussed above) and why information on all of the materials, with the requirement to ask certain The Data Fields OSHA Proposed to equipment or chemicals the employee Change on the Proposed 301 Form questions in the same order and using was using when the event occurred was the same language (also discussed needed (see, e.g., Exs. 15: 35, 205, 318, Proposed field 5, Date hired. OSHA above). The remaining comments 334, 375, 424). For example, the proposed to add this data field to collect relating to the proposed forms are Chocolate Manufacturers Association additional data about the work grouped into three categories: comments and the National Confectioners experience of the injured or ill worker. about the proposed case detail questions Association, in a joint comment (Ex. 15: Such data can be very useful for (proposed questions 9, 10, 16, 17 and18) 318, p. 9) , stated: employers, employees, and OSHA and the data they would collect; the because it enables researchers to [W]e strongly disagree with the approach discover, for example, whether newly other fields OSHA proposed to add to reflected in Question 16. We believe the the form 101/301; and comments urging additional information sought by Question 16 hired or inexperienced workers the Agency to place additional data (and not by Question 18) is irrelevant and experience relatively more injuries and fields on the 301 form. would not, in any event, justify a second set illnesses than more experienced of reporting forms for every recordable workers. Several commenters Rewording of the Proposed Case Detail incident subject to federal or state OSHA questioned the value of the data OSHA Questions (questions 9, 10, 16, 17, and jurisdiction. Requiring a listing of ‘‘all’’ proposed to collect in field 5 (see, e.g., 18) equipment, materials or chemicals an Exs. 15: 151, 152, 179, 180, 201, 347, OSHA proposed to include five employee might have been using—without 409). For example, Caterpillar Inc. (Ex. questions on the final OSHA 301 form regard to whether they contributed to the 15: 201) recommended that ‘‘[i]tem 5 of to gather information about the details injury or illness—would serve no useful Form 301 be deleted. The date hired is purpose. of each work-related injury or illness not a significant factor in analyzing case: OSHA agrees with this assessment injury causation. If any similar data is —Proposed question 9 asked for and has not included this question from necessary, it should be the time on the information about the specific injury the final 301 form. current job, which is a better indicator or illness (e.g., second degree burn or The final form solicits information of relative job skills or work toxic hepatitis); only on the object or substance that experience.’’ Several commenters asked —Proposed question 10 asked for directly harmed the employee. The final for clarification of the ‘‘date hired’’ information on the body part or parts 301 form contains four questions phrase (see, e.g., Exs. 15: 151, 152, 179, affected (e.g., lower right forearm); eliciting case detail information (i.e., 180). For example, Atlantic Marine, Inc. —Proposed question 16 asked for what was the employee doing just (Ex. 15: 180) asked ‘‘What date shall be information on all equipment, before the incident occurred?, what recorded as the ‘‘Date Hired’’ if an materials or chemicals the employee happened?, what was the injury or employee is laid off, is terminated, or was using when the event occurred; illness?, and what object or substance resigns and then is rehired? Should the —Proposed question 17 asked for directly harmed the employee?). The date of initial hire or the date of rehire information on the specific activity language of these questions on the final be recorded?’ the employee was engaged in when 301 form has been modified slightly OSHA continues to believe that the the event occurred; from that used in the proposed data gathered by means of the ‘‘date —Proposed question 18 asked for questions to be consistent with the hired’’ field will have value for information on how the injury or language used on the BLS Survey of analyzing occupational injury and illness occurred, including a Occupational Injuries and Illnesses illness data and has therefore included description of the sequence of events collection form. The BLS performed this data field on the final OSHA 301 that led up to the incident and the extensive testing of the language used in form. These data are useful for objects or substances that directly these questions while developing its analyzing the incidence of occupational injured or made the employee ill. survey form and has subsequently used injury and illness among newly hired
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workers and those with longer tenure. information. The criteria for OSHA room?, and Was employee hospitalized OSHA is aware that the data collected recordability focuses on the care provided, overnight as an in-patient? are not a perfect measure of job and not on the individual providing the care. Proposed question 13, date of return experience because, for example, an Item 7, ‘‘If treated off-site, facility name to work at full capacity: The proposed and address’’ requires more specific Injury and Illness Incident Report (Form employee may have years of experience instructions as to when this field must be doing the same type of work for a completed. Is this to be completed if the 301) contained a data field requiring the previous employer, and that prior employee is referred to an outside provider date the employee returned to work at experience will not be captured by this on the initial visit, or is this to be completed full capacity if the case involved data field. Another case where this data should the individual be referred out later in restricted work activity or days away field may fail to capture perfect data the course of the injury or illness? We feel from work. This field was included to could occur in the case of an employee that the former is the correct response. We provide information regarding the who has worked for the same employer also question the benefit of providing this length of time the employee was for many years but was only recently information. partially or fully incapacitated by the reassigned to new duties. Despite cases OSHA has decided to continue to injury or illness. However, because the such as these, inclusion of this data collect information on final Form 301 final rule requires employers to record field on the Form 301 will allow the concerning the treatment provided to day counts both for cases involving days Agency to collect valid data on length the employee (proposed data field 7). away from work and cases involving job of time on the job for most employment OSHA’s experience indicates that transfer or restriction (see discussion situations. employers have not generally had above), the date at which an employee For the relatively infrequent situation difficulty in providing this information, returned to work at full capacity field is where employees are hired, terminated, either in the longshoring or any other no longer necessary and does not appear and then rehired, the employer can, at industry. The data in this field is on the final form. his or her discretion, enter the date the particularly useful to an OSHA Proposed questions 14, Time of event employee was originally hired, or the inspector needing additional and 15, Time employee began work: No commenter objected to the inclusion of date of rehire. information about the medical condition proposed data field 14, Time of event, Proposed field 6, Name of health care of injured or ill employees. (OSHA does and only two commenters objected to provider; proposed field 7, If treatment not request this medical information proposed data field 15, Time employee off site, facility name and address; and without first obtaining a medical access began work (see, e.g., Exs. 15: 347, 409). proposed field 8, Hospitalized overnight order under the provisions of 29 CFR Both of these commenters, the Ford as in-patient? The former OSHA Form part 1913, Rules Concerning OSHA Motor Company and the American 101 included similar data fields: former Access to Employee Medical Records.) Automobile Manufacturers Association, field 18 collected the ‘‘name and The final OSHA 301 Form therefore stated that: address of physician,’’ while former includes a data field for information on field 19 collected data on ‘‘if the off-site treating facility. ‘‘Time employee began work,’’ is of hospitalized, name and address of The final 301 Form also includes a questionable benefit. Many employees perform a variety of jobs during the day or hospital.’’ Several commenters data field requesting the name of the discussed these data fields and may have their job changed during the day health care professional seen by the (work added or subtracted). This question is questioned their usefulness for injured or ill employee. The employer burdensome and offers little benefit for data analytical purposes (see, e.g., Exs. 15: may enter the name either of the analysis. 95, 151, 152, 179, 180, 347, 409). The physician or other health care Several commenters discussed the Pacific Maritime Association (Ex. 15: professional who provided the initial 95) noted the difficulty of collecting the way the proposed form collected the treatment or the off-site treatment. If new information on the time of the data requested by proposed data fields OSHA needs additional data on this accident (see, e.g., Exs. 15: 151, 152, 5, 6, 7, and 13 as they pertain to point, the records of the health care 179, 180, 260, 262, 265, 347, 401, 409). longshoremen: professional listed will include both the Several of these commenters suggested Items 5, 6, 7, and 13 on the OSHA Form name of the referring physician or other that OSHA do away with the am/pm 301 presents problems for direct employers health care professional as well as the designation and use a 24-hour clock of longshoremen. Longshoremen are hired on name of the health care professional to instead (see, e.g., Exs. 15: 151, 152, 179, a daily basis, select their own health care whom the employee was referred for 180). The comments of Atlantic Marine provider; may be treated at a facility of their specialized treatment. choice, and may not return to the same (Ex. 15: 152) are representative: employer when returning to work. Several commenters asked OSHA to Change the form from using A.M. or P.M. collect data on whether a Several commenters asked OSHA to to using a 24-hour clock. A 24-hour clock is hospitalization involved in-patient much easier to use in drawing conclusions clarify the data that OSHA was asking treatment or was limited to out-patient on the relationship between injuries/illnesses for in these data fields (see, e.g., Exs. 15: treatment (see, e.g., Exs. 15: 151, 152, and the time of day that they occurred. 51, 152, 179, 180, 347, 409). For 179, 180). For example, Alabama OSHA may find that many employers are example, the Ford Motor Company (Ex. Shipyard, Inc. recommended ‘‘Instead of currently using a 24-hour clock system. 15: 347) asked: asking in [proposed] item 8 if an Another group of commenters [I]tem 6, ‘‘Name of health care provider’’ is employee is hospitalized overnight as suggested that OSHA add am/pm boxes unclear in terms of the general instructions. in-patient, have a check box to record the employer could simply check off as Who is considered the primary health care whether the treatment was as an in- an easier way to collect the data (see, provider? Is it the individual who sees the patient or outpatient status’’ (Ex. 15: e.g., Exs. 15: 260, 262, 265, 401). For employee on the initial medical visit, the 152). OSHA agrees that the additional example, the Edison Electric Institute individual who renders the majority of care for a case, or the individual who renders care information suggested by this (Ex. 15: 401) suggested that ‘‘Questions if the employee is referred to an off-site commenter would be useful, and final 14 and 15 should include a box which provider on the initial visit? We feel that the OSHA Form 301 asks two can be checked for AM and PM to last choice is the correct response. We also hospitalization-related questions: Was reduce the possibility that this question the benefit of providing this employee treated in an emergency information will be omitted.’’
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OSHA has included on the final 301 occupation, and the other information Suggested addition to the form the two questions asking for data from the forms. OSHA proposed to add Commenter(s) 301 incident report, and on the time of the event and the time the a field to the OSHA 301 form that would OSHA response employee began work so that employers, use the same case number as that on the employees and the government can American In- ‘‘AIHA suggests a corrective OSHA 300 form, thus making it easier dustrial Hy- action box on the OSHA obtain information on the role fatigue for employers, employees and giene Asso- 301. This form is often plays in occupational injuries and government representatives to match the ciation used as an employer’s ac- illness. Both questions (i.e., on time of data from the two forms. Two (AIHA) (Ex. cident report, and this event and time employee began work) commenters objected to the addition of 15: 153). would encourage employ- must be included to conduct this such a case file number (Exs. 15: 217, ers to seek action as ap- analysis. Thus, OSHA has included both propriate to prevent reoc- 334). The American Forest & Paper currence.’’ fields on the final Form 301. In Association (AF&PA) argued: addition, the form has been designed so OSHA has not included this that the employer can simply circle the Another issue of concern to AF&PA is the suggested change be- a.m. or p.m. designation. OSHA believes requirement for a unique case or file number cause the 301 form is not on the Form 300 and Form 301 to facilitate designed to be an acci- that this approach will provide the dent investigation form, cross-referencing between the forms. We simplest, least burdensome method for but is used to gather infor- believe there is sufficient data (employee capturing these data, and that using a 24 mation on occupational in- hour clock system would be name, date of birth, date of injury) on all juries and illnesses. Cor- cumbersome or confusing for most existing state First Report of Injury forms to rective actions would thus employers. readily cross-reference the First Report to the not be an appropriate data Data fields for the name and phone entry on the Form 300. A uniform field for this form. number of the person completing the requirement for employers to create an (Exs. 15: 179, ‘‘A space is needed for re- form. Both the former and proposed indexing system would serve no useful 180, 151, cording an employee iden- Incident Report forms included fields purpose. Furthermore, it would be unduly 152). tification number. This number is important for designed to obtain information on the burdensome for many affected companies except in those cases when there is a reason maintaining records. Some person who completed the form. The employers use the em- former OSHA 101 form asked for the to maintain the confidentiality of the affected employee’s name (Ex. 15: 334). ployee’s social security date of report, the name of the preparer, number, while others have and that person’s official position. The OSHA continues to believe that easy a unique, employer gen- proposed form would have carried linkage of the Forms 300 and 301 will erated identifier for each forward the name and title of the employee.’’ be beneficial to all users of these data...... OSHA believes the combina- preparer and the date, and added the Thus, the final Form 301 contains a person’s phone number. OSHA received tion of other data fields space for the case file number. The file/ very little comment on these proposed (case number, employee case number is required on both forms name, address and date data fields. The Ford Motor Company to allow persons reviewing the forms to of birth) provides the user (Ex. 15: 347) and the American the ability to identify indi- Automobile Manufacturers Association match an individual OSHA Form 301 with a specific entry on the OSHA Form viduals when necessary. (Ex. 15: 409) both made the following Ogletree, Substituting ‘‘regular job comment: 300. Access by authorized employee Deakins, title’’ would provide for ef- representatives to the information Nash, fective use of Form 301 in The ‘‘Completed by’’ field could be contained on the OSHA Form 301 is modified to consolidate name and title. This Smoak & conducting safety and would be consistent with the manner in limited to the information on the right Stewart (Ex. health analysis of the which most health care professionals side of the form (see 15: 406). workplace. routinely sign their name. § 1904.35(b)(2)(v)(B) of the final rule). The OSHA 300 Log asks for The ‘‘Phone number required’’ item should The case/file number is the data element the employee’s job title. refer to the medical department’s number or OSHA does not believe that makes a link to the OSHA Form 300 there is a need to ask for the general number of the establishment, and possible. OSHA believes that this be included with the establishment’s name the data on both forms. and address at the top of the form. This requirement will add very little burden would decrease the paperwork burden by to the recordkeeping process, because allowing the use of a stamp or a pre-typed the OSHA Log has always required a format as opposed to completing a phone unique file or case number. The final number on each OSHA Form 301. Form 301 requirement simply requires The final OSHA Form 301 permits the the employer to place the same number employer to include the name and title on the OSHA 301 form. in either field, as long as the Suggested Fields information is available. As to the phone number, the employer may use Commenters submitted suggestions whatever number is appropriate that for other data fields that they believed would allow a government should be included on the OSHA Form representative accessing the data to 301, as follows. 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,
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Suggested addition to the Suggested addition to the —Section 1904.33, which requires the Commenter(s) 301 incident report, and Commenter(s) 301 incident report, and employer to retain and update the OSHA response OSHA response injury and illness records; —Section 1904.34, which requires the American Pe- ‘‘[t]he supplemental data —Time employee began employer to transfer the records if the troleum Insti- should contain all informa- work. business changes owners; tute (Ex. 15: tion necessary to make —Specific description of in- 375). recordkeeping decisions, jury or illness. —Section 1904.35, which includes and to facilitate certifi- —Location where the acci- requirements for employee cation of the logs at year dent or exposure occurred involvement, including employees’ end. For this reason, the (e.g. loading dock). rights to access the OSHA injury and following should be added —Facility or Project (e.g. illness information; to what OSHA proposes Hackensack factory, or —Section 1904.36, which prohibits an for the supplemental data: Dreamwood Subdevelop- employer from discriminating against company name, establish- ment). employees for exercising their rights ment name, employee so- —Body part affected. under the Act; cial security number, reg- —Equipment, tools, mate- —Section 1904.37, which sets out the ular job title, ‘‘new injury or rials, or chemicals being state recordkeeping regulations in illness?’’, ‘‘loss of con- used. OSHA approved State-Plan states; and sciousness?’’, days away —Specific activity when in- from work, first date ab- —Section 1904.38, which explains how jured or upon onset of ill- an employer may seek a variance from sent, est. duration of ab- ness. sence, ‘‘date days-away —How injury or illness oc- the recordkeeping rule. cases returned to work?,’’ curred. Section 1904.30 Multiple ‘‘result in restricted activ- OSHA notes that the final Establishments ity?’’, ‘‘job transfer?’’, ‘‘ter- OSHA 301 form contains mination of employment?’’ many of these data ele- Section 1904.30 covers the procedures OSHA has not included ments. The Agency be- for recording injuries and illnesses these data fields on the lieves that the remaining occurring in separate establishments final form because the fields are unnecessary or operated by the same business. For Agency believes that duplicative of information many businesses, these provisions are doing so would duplicate already found on the irrelevant because the business has only the information on the OSHA 300 Log. OSHA 300 form. There is one establishment. However, many also no need to use the businesses have two or more OSHA 301 form to docu- Summary establishments, and thus need to know how to apply the recordkeeping rule to ment all the employer’s The final forms employers will use to recordkeeping decisions. multiple establishments. In particular, keep the records of those occupational Ford Motor ‘‘AAMA proposes the OSHA this section applies to businesses where injuries and illnesses required by the Company Form 301 include the es- separate work sites create confusion as final rule to be recorded have been and the tablishment name and ad- to where injury and illness records revised to reflect the changes made to American dress at the top of the should be kept and when separate the final rule, the record evidence Automobile form. This will assist not records must be kept for separate work Manufactur- only the employer, but gathered in the course of this locations, or establishments. OSHA ers Associa- OSHA as well, to avoid rulemaking, and a number of changes recognizes that the recordkeeping tion (Exs. any confusion over designed to simplify recordkeeping for system must accommodate operations of 15: 347, records in which one med- employers. In addition, the forms have this type, and has adopted language in 409). ical department may serve been revised to facilitate the use of several establishments. the final rule to provide some flexibility equivalent forms and employers’ ability Also, it will be helpful in for employers in the construction, to computerize their records. those cases where a com- transportation, communications, electric pany employee, who Subpart D. Other OSHA injury and and gas utility, and sanitary services works predominately at illness recordkeeping requirements industries, as well as other employers one particular facility, sus- tains an injury or illness at with geographically dispersed Subpart D of the final rule contains all operations. The final rule provides, in another company estab- of the 29 CFR Part 1904 requirements lishment.’’ part, that operations are not considered The establishment name and for keeping OSHA injury and illness separate establishments unless they location are included on records that do not actually pertain to continue to be in operation for a year or the OSHA Form 300. In entering the injury and illness data on more. This length-of-site-operation an effort to identify and the forms. The nine sections of Subpart provision increases the chances of eliminate duplication of D are: discovering patterns of occupational data, OSHA has not in- —Section 1904.30, which contains the injury and illness, eliminates the burden cluded this data item on of creating OSHA 300 Logs for transient the OSHA Form 301. requirements for dealing with Building and For every potentially record- multiple business establishments; work sites, and ensures that useful records are generated for more Construction able injury or illness, the —Section 1904.31, which contains the Trades De- employer shall record: permanent facilities. requirements for determining which OSHA’s proposed rule defined an partment, case number, date case employees’ occupational injuries and AFL–CIO reported and name of em- establishment as a single physical (Ex.15: 394). ployee. illnesses must be recorded by the location that is in operation for 60 —Job title of employee. employer; calendar days or longer (61 FR 4059), —Date of injury or illness. —Section 1904.32, which requires the but did not provide specific provisions —Time of event or expo- employer to prepare and post the covering multiple establishments. In the sure. annual summary; final rule, the definition of
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establishment is included in Subpart G, How Long Must an Establishment Exist of these commenters suggested that Definitions. to Have a Separate OSHA Log OSHA retain the former one-year The basic requirement of § 1904.30(a) As previously stated, the final rule duration threshold in the definition of of this final rule states that employers provides that an establishment must be establishment (see, e.g., Exs. 15: 78, 123, are required to keep separate OSHA 300 one that is expected to exist for a year 225, 254, 305, 356, 389, 404). Logs for each establishment that is or longer before a separate OSHA log is Other commenters expressed concern expected to be in business for one year required. Employers are permitted to that the proposed 60-day threshold would create an unreasonable burden or longer. Paragraph 1904.30(b)(1) states keep separate OSHA logs for shorter on employers in service industries like that for short-term establishments, i.e., term establishments if they wish to do telecommunications and other utilities, those that will exist for less than a year, so, but the rule does not require them whose employees typically report to a employers are required to keep injury to do so. This is a change from the fixed location, such as a service center and illness records, but are not required proposed rule, which would have or garage, but perform tasks at transient to keep separate OSHA 300 Logs. They required an establishment to be in locations that remain in existence for may keep one OSHA 300 Log covering operation for 60 days to be considered more than 60 days. These commenters all short-term establishments, or may an ‘‘establishment’’ for recordkeeping felt that classifying such locations as include the short-term establishment purposes. The proposed 60-day records in logs that cover individual ‘‘establishments’’ and creating threshold would have changed the thousands of new OSHA Logs, would company divisions or geographic definition of ‘‘establishment’’ used in regions. For example, a construction have ‘‘no benefit to anyone’’ (Ex. 15: OSHA’s former recordkeeping rule, 199) (see also Exs. 15: 65, 170, 213, 218, company with multi-state operations because that rule included a one-year- might have separate OSHA 300 Logs for 332, 336, 409, 424). in-operation threshold for defining a In contrast, commenters who each state to show the injuries and fixed establishment required to keep a illnesses of its employees engaged in supported the 60-day threshold worried separate OSHA Log (Ex. 2, p. 21). The that injuries and illnesses occurring at short-term projects, as well as a separate effect of the proposed change in the OSHA 300 Log for each construction transient locations would never be threshold would have been to increase accounted for without such a provision project expected to last for more than the number of short-duration operations (see, e.g., Exs. 15: 9, 133, 310, 369, 425). one year. If the same company had only required to maintain separate injury and Some urged OSHA to adopt an even one office location and none of its illnesses records. shorter time-in-operation threshold (see, projects lasted for more than one year, The majority of the comments OSHA e.g., Exs. 15: 369, 418, 429). For the company would only be required to received on this issue opposed the example, the International Brotherhood have one OSHA 300 Log. decrease in the duration of the threshold of Teamsters (IBT) stated that they Paragraph 1904.30(b)(2) allows the from one year to 60 calendar days, ‘‘[w]ould strongly support reducing the employer to keep records for separate primarily because commenters felt that requirement to thirty days to cover establishments at the business’ requiring temporary facilities to many low level housing construction headquarters or another central location, maintain records would be burdensome, sites, and transient operations, similar provided that information can be costly and would not increase the utility to mobile amusement parks’’ (Ex. 15: transmitted from the establishment to of the records (see, e.g., Exs. 21, 15: 21, 369). The AFL–CIO agreed: ‘‘*** the headquarters or the central location 43, 78, 116, 122, 123, 145, 170, 199, 213, 60-day time period is still too long. We within 7 days of the occurrence of the 225, 254, 272, 288, 303, 304, 305, 308, believe that to truly capture a majority injury or illness, and provided that the 338, 346, 349, 350, 356, 358, 359, 363, of these transient work sites, a 30-day employer is able to produce and send 364, 375, 389, 392, 404, 412, 413, 423, time period would be more realistic. A the OSHA records to each establishment 424, 433, 437, 443, 475). For example, 30-day time period as the trigger would when § 1904.35 or § 1904.40 requires the Associated Builders and capture construction activities such as such transmission. The sections of the Contractors, Inc. (ABC): trenching, roofing, and painting projects final rule are consistent with the [d]isagrees that sites in existence for as which will continue to be missed if a corresponding provisions of the little as 60 days need separate injury and 60-day time period is used’’ (Ex. 15: proposed rule. illness records. The redefinition of 418). OSHA agrees that under the Paragraph 1904.30(b)(3) states that ‘‘establishment’’ will cause enormous proposed provisions there was a each employee must be linked, for problems for subcontractors in a variety of potential for injuries and illnesses to be recordkeeping purposes, with one of the construction industries. Even employers with missed at short term establishments and small workforces could be on the site of employer’s establishments. Any injuries for employees who did not report to or illnesses sustained by the employee several projects at any one time, and in the course of the year could have sent crews to fixed establishments. Therefore, must be recorded on his or her home hundreds of sites. Though they may be on §§ 1904.30(b)(1) and (b)(3) have been establishment’s OSHA 300 Log, or on a such sites for only brief periods of time, they added to make it clear that records (but general OSHA 300 Log for short-term will be required under this proposal to create not a separate log) must be kept for establishments. This provision ensures separate logs for each site, increasing greatly short-term establishments lasting less that all employees are included in a their paperwork requirements without than one year, and that each employee company’s records. If the establishment increasing the amount of information must be linked to an establishment. is in an industry classification partially available to their employees (Ex. 15: 412). The United Parcel Service (UPS) exempted under § 1904.2 of the final In addition, many of these recommended that OSHA craft its rule rule, records are not required. Under commenters argued that a 60-day to coincide with a company’s personnel paragraph 1904.30(b)(4), if an employee threshold would be especially records system, stating ‘‘[t]he unit for is injured or made ill while visiting or burdensome because it would capture which an employer maintains personnel working at another of the employer’s small work sites where posting of the records is presumptively appropriate establishments, then the injury or annual summary or mailing the and efficient; accordingly, OSHA should illness must be recorded on the 300 Log summary to employees would make not mandate a rule that conflicts with a of the establishment at which the injury little sense because so few cases would company’s current personnel units or illness occurred. be captured on each Log. The majority policy’’ (Ex. 15: 424). OSHA recognizes
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that employers would prefer OSHA to centralization under § 1904.30(b)(2) is events or exposures that caused the case allow companies to keep records in any allowed only if the employer can are most likely to be present at that way they choose. However, OSHA produce copies of the forms when location, so the data are most useful for believes that allowing each company to access to them is needed by a analysis of that location’s records. If the decide how and in what format to keep government representative, an employee case is recorded at the employee’s home injury and illness records would erode or former employee, or an employee base, the injury or illness data have been the value of the injury and illness representative, as required by disconnected from the place where the records in describing the safety and §§ 1904.35 and 40. case occurred, and where analysis of the health experience of individual data may help reveal a workplace Recording Injuries and Illnesses Where workplaces and across different hazard. Therefore, OSHA finds that it is They Occur workplaces and industries. OSHA has most useful to record the injury or therefore decided not to adopt this Proposed section 1904.7, Location of illness at the location where the case approach in the final rule, but to records, and section 1904.11, Access to occurred. Of course, if the injury or continue its longstanding requirement records, covered recordkeeping illness occurs at another employer’s requiring records to be kept by requirements for employees who report workplace, or while the employee is in establishment. to one establishment but are injured or transit, the case would be recorded on OSHA has reviewed all of the made ill at other locations of the same the OSHA 300 Log of the employee’s comments on this issue and has company. Specifically, these sections home establishment. responded by deleting any reference to required that records for employees For cases of illness, two types of cases a time-in-operation threshold in the reporting to a particular establishment must be considered. The first is the case definition of establishment but but becoming ill or injured at another of an illness condition caused by an specifying a one-year threshold in establishment within the same company acute, or short term workplace section 1904.30(a) of the final rule. be kept at the establishment in which exposure, such as skin rashes, OSHA finds, based on the record they became injured or ill. This was respiratory ailments, and heat disorders. evidence, that the one-year threshold derived from OSHA’s longstanding These illnesses generally manifest will create useful records for stable interpretation that employees’ cases themselves quickly and can be linked to establishments without imposing an should be recorded where they occur, if the workplace where they occur, which unnecessary burden on the many it is at a company establishment (April is no different than most injury cases. establishments that remain in existence 24, 1992 letter of interpretation to For illnesses that are caused by long- for only a few months. Valorie A. Ferrara of Public Service term exposures or which have long Centralized Recordkeeping Electric and Gas Company). Several latency periods, the illness will most commenters objected to the proposed likely be detected during a visit to a As previously stated, the proposed requirement that an employee’s injury physician or other health care rule did not include a specific section or illness be recorded on the log of the professional, and the employee is most covering multiple establishments. The establishment where the injury likely to report it to his or her proposal did require that records for occurred, rather than on the log of the supervisor at the home work location. employees not reporting to any single establishment they normally report to Recording these injuries and illnesses establishment on a regular basis should (see, e.g., Exs.15: 60, 107, 146, 184, 199, could potentially present a problem be kept at each transient work site, or 200, 232, 242, 263, 269, 270, 329, 335, with incidence rate calculations. In at an established central location, 343, 356, 375, 377). The comments of many situations, visiting employees are provided that records could be obtained the B.F. Goodrich Company (Ex. 15: a minority of the workforce, their hours within 4 hours if requested as proposed. 146) are representative: Most commenters supported worked are relatively inconsequential, provisions that would allow the [t]he requirement for a company to log a and rates are thus unaffected to any employer to keep records at a visiting employee’s injury or illness on the meaningful extent. However, if an centralized location (see, e.g., Exs. 20, log of the company establishment that they employer relies on visiting labor to are visiting rather than on the log of their 21, 15: 9, 38, 48, 136, 137, 141, 154, 173, perform a larger amount of the work, normal work establishment, is not consistent rates could be affected. In these 203, 213, 224, 234, 235, 254, 260, 262, with the data collection process. As 265, 266, 272, 277, 278, 288, 303, 321, situations, the hours of these personnel proposed, the rule requires the facility to should be added to the establishment’s 336, 350, 367, 373, 375, 401, 409). record the injury or illness and not the hours Many, however, disagreed with the worked by the visiting employee. These hours of work for rate calculation requirement that records be produced individuals would not normally be counted purposes. within 4 hours if requested by an in the number of employees at the visited site Section 1904.31 Covered employees authorized government official. Those nor in the manhours worked at that site. Recording of cases from visiting employees comments are discussed in the preamble Final Rule Requirements and Legal would improperly skew the incidence rates Background for § 1904.40, Providing records to of both facilities. This approach is government representatives. The only particularly inappropriate in the case of an Section 1904.31 requires employers to other concern commenters expressed illness, since the case may be a result of record the injuries and illnesses of all about centralized recordkeeping was accumulated exposures which have nothing their employees, whether classified as that centralized records, like to do with the site visited during the onset labor, executive, hourly, salaried, part- computerized records, would make it of the illness. Alternately, an injury or illness time, seasonal, or migrant workers. The more difficult for employees to access could manifest after the visitor leaves the section also requires the employer to the records (see, e.g., Exs. 15:379, 380, facility. record the injuries and illnesses of 418, 438). OSHA disagrees with these employees they supervise on a day-to- OSHA does not believe that commenters about where the injuries day basis, even if these workers are not centralization of the records will and illnesses should be recorded. For carried on the employer’s payroll. compromise timely employee or the vast majority of cases, the place Implementing these requirements government representative access to the where the injury or illness occurred is requires an understanding of the Act’s records. To ensure that this is the case, the most useful recording location. The definitions of ‘‘employer’’ and
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‘‘employee.’’ The statute defines § 1975.4(b)(2) and § 1975.6 for a continued to require employers to ‘‘employer,’’ in relevant part, to mean ‘‘a discussion of the latter two categories of record the injuries and illnesses of person engaged in a business affecting workers. As is the case with employees over whose work they exert interstate commerce who has independent contractors, no ‘‘day-to-day supervision’’ (61 FR 4058/ employees.’’ 29 U.S.C. 652 (5). The term employment relationship exists between 3). OSHA proposed to codify this ‘‘person’’ includes ‘‘one or more these individuals and the hiring party, longstanding interpretation by adding a individuals, partnerships, associations, and consequently, no recording definition of ‘‘employee’’ together with corporations, business trusts, legal obligation arises. a note explaining its application to Part representatives, or any organized group A related coverage question 1904 recordkeeping. The proposed of persons.’’ 29 U.S.C. 652 (4). The term sometimes arises when an employer definition restated the definition of ‘‘employee’’ means ‘‘an employee of an obtains labor from a temporary help employee in the OSH Act. It then employer who is employed in a service, employee leasing firm or other explained that, for recordkeeping business of his employer which affects personnel supply service. Frequently purposes, an employer should consider interstate commerce.’’ 29 U.S.C. 652(6). the temporary workers are on the as its employees any persons who are Thus, any individual or entity having an payroll of the temporary help service or supervised on a day-to-day basis at the employment relationship with even one leasing firm, but are under the day-to- establishment. The proposal noted that worker is an employer for purposes of day supervision of the host party. In this was the test regardless of whether this final rule, and must fulfill the these cases, Section 1904.31 places the the persons were labeled as recording requirements for each recordkeeping obligation upon the host, ‘‘independent contractors,’’ ‘‘migrant employee. or utilizing, employer. The final rule’s workers,’’ or workers provided by a The application of the coverage allocation of recordkeeping temporary help service. principles in this section presents few responsibility to the host employer in issues for employees who are carried on these circumstances is consistent with The proposal further explained that the employer’s payroll, because the the Act for several reasons. day-to-day supervision occurs ‘‘when, employment relationship is usually well First, the host employer’s exercise of in addition to specifying the output, established in these cases. However, day-to-day supervision of the temporary product or result to be accomplished by issues sometimes arise when an workers and its control over the work the person’s work, the employer individual or entity enters into a environment demonstrates a high degree supervises the details, means, methods temporary relationship with a worker. of control over the temporary workers and processes by which the work is to The first question is whether the worker consistent with the presence of an be accomplished’’ (61 FR 4059/1). is an employee of the hiring party. If an employment relationship at common OSHA also noted that other classes of employment relationship exists, even if law. See Loomis Cabinet Co., 20 F.3d at workers would not be covered because temporary in duration, the employee’s 942. Thus, the temporary workers will they were not considered employees, injuries and illnesses must be recorded ordinarily be the employees of the party either as defined in the OSH Act or as on the OSHA 300 Log and 301 form. exercising day-to-day control over them, set forth in regulatory interpretations. The second question, arising in and the supervising party will be their These included sole proprietors, connection with employees provided by employer. partners, family members of farm a temporary help service or leasing Even if daily supervision is not employers, and domestic workers in a agency, is which employer—the host sufficient alone to establish that the host residential setting. firm or the temporary help service—is party is the employer of the temporary Response To the Proposal responsible for recordkeeping. workers, there are other reasons for the Whether an employment relationship final rule’s allocation of recordkeeping A number of commenters agreed with exists under the Act is determined in responsibility. Under the OSH Act, an OSHA’s approach to differentiate accordance with established common employer’s duties and responsibilities between employees and true law principles of agency. At common are not limited only to his own independent contractors, and to require law, a self-employed ‘‘independent employees. Cf. Universal Constr. Co. v. employers to keep records for contractor’’ is not an employee; OSHRC, 182 F.3d 726, 728–731 (10th employees they supervise on a day-to- therefore, injuries and illnesses Cir. 1999). Assuming that the host is an day basis (see, e.g., Exs. 15: 61, 65, 205, sustained by independent contractors employer under the Act (because it has 305, 322, 333, 346, 348, 351, 369, 390, are not recordable under the final an employment relationship with 429). The National Association of Recordkeeping rule. To determine someone) it reasonably should record Manufacturers (NAM) stated: whether a hired party is an employee or the injuries of all employees, whether or [f]or purposes of recordkeeping, OSHA has an independent contractor under the not its own, that it supervises on a daily consistently taken the position that the term common law test, the hiring party must basis. This follows because the ‘‘employee’’ includes all personnel who are consider a number of factors, including supervising employer is in the best supervised on a day-to-day basis by the the degree of control the hiring party position to obtain the necessary injury employer using their services (not only with asserts over the manner in which the and illness information due to its respect to the result to be achieved, but also work is done, and the degree of skill and control over the worksite and its the means, methods and processes by which independent judgment the hired party is familiarity with the work tasks and the the work is to be accomplished). While this expected to apply. Loomis Cabinet Co. work environment. As discussed further is a fact-intensive determination that must be v. OSHRC, 20 F.3d 938, 942 (9th Cir. below, the final rule is sensible and will made on a case-by-case basis, we commend the Agency for attempting to clarify the 1994). likely result in more accurate and timely Other individuals, besides matter by making that approach an explicit recordkeeping. part of the rule, presumably for purposes of independent contractors, who are not The Proposed Rule both recordkeeping and records access (Ex. considered to be employees under the 15: 305). OSH Act are unpaid volunteers, sole The final rule’s coverage rules are proprietors, partners, family members of consistent with the basic principles The National Association of farm employers, and domestic workers embodied in the former rule and in the Temporary Staffing Services (NATSS)) in a residential setting. See 29 CFR proposal. The proposed rule would have supported:
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[c]ontinuation of ‘‘utilizing employer’’ rule improve the consistency of the data by with Part 1904 as to that employee. In for maintaining records for temporary clarifying the employer’s the IDFA example, unless the dairy employees. Temporary help and staffing responsibilities. exercised supervisory control over the service firms recruit individuals with a broad Several commenters erroneously time and manner of the electrician’s range of training, education and skills, and believed that they might need to keep then assign them to work at customer work, the dairy would not be considered locations on a variety of assignments and records for all employees of the electrician’s employer and would projects. The fundamental nature of the independent contractors performing not be required to record the incident. service relationship is such that while work in their establishment (see, e.g., Some commenters argued that the staffing service firms are the general Exs. 15: 161, 203, 312). The Battery injury and illness statistics would be employers of their workers and assume a Council International remarked: more accurate or useful if the payroll broad range of employer responsibilities, employer recorded the injuries and those responsibilities generally do not [i]t is unclear how this clarification would apply to employers in the battery industry illnesses, regardless of which employer include direct supervision of the employees controlled the work or the hazard (see, at the worksite. Hence, staffing firms have a who hire independent contractors to perform limited ability to affect conditions at the construction and other activities on their e.g., Exs. 15: 9, 26, 92, 161, 198, 259, worksite. manufacturing facilities. Often times, battery 287, 297, 299, 333, 341, 356, 364, 443). In recognition of the above, OSHA’s long- manufacturers will provide the contractors The Sandoz Corporation stated that standing policy has been to require the with an orientation to the facility (which ‘‘[t]he control and responsibility for worksite employer, not the staffing firm, to includes the facility’s safety and health rules reporting these injuries should be with and location of MSDSs) [material safety data maintain illness and injury records of the employer, i.e. the establishment that temporary workers supervised by the sheets], and monitor the work of the contractor to ensure that work contracted for pays the employee. This simplifies the worksite employer. The proposed rules control and reporting. It also allows a continue this policy. In a special ‘‘note’’ in has been completed, but do not otherwise section 1904.3, ‘‘employee’’ for record supervise the details, means, methods and company that utilizes temporary or keeping purposes is defined to include processes by which the work is to be contract services to look at the OSHA temporary workers ‘‘when they are accomplished. In these relationships, the record of the supplier as part of the supervised on a day-to-day basis by the contractors certify to the battery purchasing decision and thus put employer utilizing their services.’’ Under this manufacturers that they comply with all pressure on the supplier for better safety definition, the worksite employer, not the OSHA requirements including training, performance, thus using market forces which must be completed as part of the work staffing firm, would be required to maintain to improve safety’’ (Ex. 15: 299). The records for temporary employees supplied by contract. If the intent of the proposed clarification is Battery Council International added a staffing firm, provided they are supervised ‘‘[r]equiring employers to record the by the worksite employer. As stated in the to not require the reporting of injuries and background section of the proposed rule, illnesses to independent contractors under injuries and illnesses of independent ‘‘this is consistent with case law and the similar conditions as described above, then contractors under such circumstances is interpretation currently used by OSHA’’ (61 BCI supports this concept and requests unfair and will result in the over F.R. 4034). NATSS strongly supports this further clarification on this issue. BCI will recording of injuries and illnesses by the proposed definition. (Ex. 15: 333) oppose, however, any attempt by OSHA to battery industry. This will result in require the reporting of injuries or illnesses more OSHA inspections on the lead A number of commenters opposed that occur to ‘‘independent contractors’’ OSHA’s proposed approach on this where the employer has not otherwise battery industry, which will in turn issue (see, e.g., Exs. 15: 9, 23, 26, 64, 67, supervised the details, means, methods and impose additional costs and burdens on 82, 92, 119, 154, 159, 161, 184, 185, 198, processes by which the work was BCI members’’ (Ex. 15: 161). The 203, 204, 225, 259, 287, 297, 299, 312, accomplished (Ex. 15: 161). Fertilizer Institute stated ‘‘[a]dopting 335, 336, 338, 341, 356, 363, 364, 370, The International Dairy Foods compensation as the basis for 404, 423, 424, 427, 431, 437, 443). Association (IDFA) was concerned that determining the employer/employee Several of these commenters thought if a dairy processing facility hired an relationship results in simplification that including temporary employees electrical contractor to install new that is not afforded when one must look from temporary services, independent lighting and the electrical contractor’s at day-to-day supervision’’ (Ex. 15: 154). contractors and other leased personnel employee were injured while installing A few commenters recommended that within the definition of employee the lighting, the dairy might have to the employer responsible for workers’ would impose new burdens on record the incident in its Part 1904 compensation insurance also be employers (see, e.g., Exs. 15: 35, 67, 356, records (Ex. 15: 203). required to record the injuries and 423, 437). However, the proposal did The 1904 rule does not require an illnesses (Ex. 15: 204, 225, 336, 364). not alter the long-standing meanings of employer to record injuries and The American Gas Association (Ex. 15: the terms employee, employer or illnesses that occur to workers 225) stated that OSHA should: employment relationship. The day-to- supervised by independent contractors. [s]trive to parallel Workers’ Compensation day supervision test for identifying the However, the label assigned to a worker law. The employer may have supervision of employer who is responsible for is immaterial if it does not reflect the some types of temporary workers, e.g., daily compliance with Part 1904 is a economic realities of the relationship. office workers. However, the employer may have no control over a crew of construction continuation of OSHA’s former policy, For example, an employment contract contractors. In this case, the employer does and is consistent with the common law that labels a hired worker as an not supervise the details, means, methods test. The comments indicate that many independent contractor will have no and processes by which the work employers are not aware that they need legal significance for Part 1904 purposes accomplished. The definition of employee, to keep records for leased workers, if in fact the hiring employer exercises along with the note to the definition temporary workers, and workers who day-to-day supervision over that worker, proposed by OSHA requires a subjective are inaccurately labeled ‘‘independent including directing the worker as to the determination to be made. 61 Fed. Reg. at contractors’’ but are in fact employees. manner in which the details of the work 4058. We recommend OSHA follow a more objective test. The responsibility of reporting However, these workers are employees are to be performed. If the contractor injuries and illnesses should turn on the fact under both the former rule and the final actually provides day-to-day of who provides the Workers’ Compensation rule. Incorporating these requirements supervision for the employee, then the insurance, not necessarily daily supervision. into the regulatory text can only help to contractor is responsible for compliance This would then be an objective, rather than
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subjective test, less likely open to to meet this purpose. This would be simply reflected changing business interpretation and mistakes. both burdensome and duplicative. practices rather than real changes in Requiring the controlling (host) safety and health conditions. OSHA has rejected the suggestions employer to record injuries and Some commenters objected to this that either the payroll or workers’ illnesses for employees that they control aspect of the proposal because they compensation employer keep the OSHA has several advantages. First, it assigns thought it would require both the 1904 records. The Agency believes that the injuries and illnesses to the personnel leasing firm and the host in the majority of circumstances the individual workplace with the greatest employer to record injuries and payroll employer will also be the amount of control over the working illnesses. Double recording would lead workers’ compensation employer and conditions that led to the worker’s to inaccurate statistics when both there is no difference in the two injury or illness. Although both the host employers reported their data to BLS suggestions. Temporary help services employer and the payroll employer have (see, e.g., Exs. 15: 9, 26, 92, 198, 259, typically provide the workers’ safety and health responsibilities, the 287, 297, 333, 341, 356, 364, 443). The compensation insurance coverage for host employer generally has more National Association of Temporary the employees they provide to other control over the safety and health Staffing Services Stated: employers. Therefore, our reasons for conditions where the employee is [i]f the exemption is not retained in the rejecting these suggestions are the same. working. To the extent that the records case of SIC 7363 [Help Supply Services] OSHA agrees that there are good connect the occupational injuries and employers, it would be especially important arguments for both scenarios: 1. illnesses to the working conditions in a for the final rules to expressly provide * * * Including injuries and illnesses in the given workplace, the host employer that there is no intent to impose a dual records of the leasing employer (the must include these cases to provide a reporting requirement. At least one state OSH payroll or workers’ compensation full and accurate safety and health office already has construed the proposed employer and 2. For including these record for that workplace. lifting of the partial exemption as creating an If this policy were not in place, obligation on the part of staffing firms to cases in the records of the controlling maintain records for all of its employees, employer. Requiring the payroll or industry-wide statistics would be including temporary employees supervised workers’ compensation employer to skewed. Two workplaces with identical by the worksite employer. This is clearly keep the OSHA records would certainly numbers of injuries and illnesses would inconsistent with the intent of the proposed be a simple and objective method. There report different statistics if one relied on rule and should be clarified (Ex. 15: 333). would be no doubt about who keeps the temporary help services to provide The Society of the Plastics Industry records. However, including the cases in workers, while the other did not. Under added: OSHA’s policy, when records are the records of the temporary help [b]ecause statistics are required to be agency erodes the value of the injury collected to generate national injury and illness statistics, the cases are properly collected for several years, it would take a and illness records for statistical significant effort to contact several purposes, for administering safety and assigned to the industry where they independent companies on a continual basis health programs at individual worksites, occurred. Assigning these injuries and to obtain such information. This would only and for government inspectors illnesses to temporary help services result in a serious duplication of records, as conducting safety and health would not accurately reflect the type of both the host employer and the temporary leasing employer record the case. This will inspections or consultations. The workplace that produced the injuries and illnesses. It would also be more increase the recordkeeping burden for both benefits of simplification and clarity do the employer and those independent not outweigh the potential damage to difficult to compare industries. To illustrate this point, consider a companies hired for a specific job by that the informational value of the records, employer (Ex. 15: 364). for the reasons discussed below. hypothetical industry that relies on temporary help services to provide 10% OSHA agrees with these commenters First, the employer who controls the of its labor force. Assuming that the that there is a potential for double workers and the work environment is in temporary workers experience counting of injuries and illnesses for the best position to learn about all the workplace injury and illness at the same workers provided by a personnel supply injuries and illnesses that occur to those rate as traditional employees, the service. We do not intend to require workers. Second, when the data are Nation’s statistics would underrepresent both employers to record each injury or collected for enforcement and research that industry’s injury and illness illness. To solve this problem, the rule, use and for priority setting, the injury numbers by 10%. If another industry at § 1904.31(b)(4), specifically states that and illness data are clearly linked to the only used temporary help services for both employers are not required to industrial setting that gave rise to them. 1% of the labor force, its statistics record the case, and that the employers Most important, transferring the would be closer to the real number, but may coordinate their efforts so that each recording/reporting function from the comparisons to the 10% industry would case is recorded only once—by the supervising employer to the leasing firm be highly suspect. employer who provides day-to-day would undermine rather than facilitate The policy also makes it easier to use supervision. When the employers one of the most important goals of Part an industry’s data to measure involved choose to work with each 1904—to assure that work-related injury differences that occur in that industry other, or when both employers and illness information gets to the over time. Over the last 20 years, the understand the Part 1904 regulations as employer who can use it to abate work- business community has relied to who is required to record the cases related hazards. If OSHA were to shift increasingly on workers from temporary and who is not, there will not be the recordkeeping responsibility from help services, employee leasing duplicative recording and reporting. the controlling employer to the leasing companies, and other temporary This policy will not completely firm, the records would not be readily employees. If an industry sector as a eliminate double recording of these available to the employer who can make whole changed its practices to include injuries and illnesses, but it provides a best use of them. OSHA would need to either more or fewer temporary workers mechanism for minimizing the error in require the leasing firm to provide the over time, comparisons of the statistics the BLS statistics. controlling employer with copies of the over several years might show trends in OSHA believes that many employers injury and illness logs and other reports injury and illness experience that already share information about these
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injuries and illnesses to help each other previously recorded injuries or vacationing permanent employee would with their own respective safety and illnesses, or the aftermath of an injury be considered to be under the day-to- health responsibilities. For example, or illness. And the personnel leasing day supervision of the host facility (Ex. personnel service employers need firm will certainly have less knowledge 15: 259). information to process workers’ of and control over the work OSHA has decided not to base compensation claims and to determine environment that may have caused, recording obligations on the temporary how well their safety and health efforts contributed to, or significantly employee’s length of employment. are working, especially those involving aggravated an injury or illness. As Recording the injuries and illnesses of training and the use of personal described above, the two employers some temporary employees and not protective equipment. The host have shared responsibilities and may others would not improve the value or employer needs information on share information when there is a need accuracy of the statistics, and would conditions in the workplace that may to do so. make the system even more inconsistent have caused the injuries or illnesses. If Part 1904 records are inaccurate due and complex. In OSHA’s view, the Many commenters objected to the to lack of reasonably reliable data about duration of the relationship is much less requirement that the employer who leased employees, there are ways for important than the element of control. controls the work environment record OSHA to address the problem. First, the In the example of the temporary nurse’s injuries and illnesses of temporary OSH Act does not impose absolutely aide, for OSHA recordkeeping purposes workers because that employer does not strict liability on employers. The the worker would be considered an have adequate information to record the controlling employer must make employee of the facility for the days he cases accurately (see, e.g., Exs. 15: 9, 23, reasonable efforts to acquire necessary or she works under the day-to-day 184, 341, 363, 364, 370). These information in order to satisfy Part 1904, supervision of the host facility. commenters contended that temporary but may be able to show that it is not Several commenters questioned workers supplied by personnel agencies feasible to comply with an OSHA whether or not temporary workers may not have been at any given recordkeeping requirement. If entries for would be included in the total number assignment long enough for the temporary workers are deficient in some of employees of that employer (see, e.g., controlling employer to count days way, the employer can always defend Exs. 15: 67, 356, 375, 437). The number away from work accurately or to make against citation by showing that it made of employees is used in two separate informed judgments about the the efforts that a reasonable employer areas of the recordkeeping system. The recordability of ongoing or recurring would have made under the particular number of employees is used to cases. The comments also contended circumstances to obtain more complete determine the exemption for smaller that the controlling employer may have or accurate data. employers, and is entered on the annual difficulty judging whether an injury or A few commenters suggested that summary of occupational injuries and illness is related to that employer’s work OSHA should link the recording illnesses. The Small Business environment, to other places of requirement to the duration of time that Administration expressed concern over employment, or is totally non-work the contract or temporary employee whether counting these workers as related. These drawbacks in turn affect works at a specific location (see, e.g., employees would affect the exemption the recording employer’s ability to Exs. 15: 185, 259, 341, 364). The for smaller employers, stating ‘‘[t]he certify to the completeness and accuracy National Wholesale Druggists definition of ‘‘employee’’ goes beyond of the annual summary of the Log. U.S. Association (NWDA) believed that: the statutory intent * * * Small West, Inc. (Ex. 15: 184) remarked: [t]here should be a length-of-employment businesses would not only have new [e]mployers should not be responsible for delineation to determine whether a obligations for coverage, but this recordkeeping involving independent temporary or contract employee illness or methodology for counting employees contractors, workers from temporary injury should be included in the OSHA log. would impact the opportunity for an agencies, etc. A major reason for this would OSHA should set a length of time that the exemption under this standard’’ (Exs. be the difficulties presented when trying to contract or temporary employee must work track such individuals for injuries/illnesses 15: 67, 437). The American Petroleum in a location before requirements for OSHA that have long periods of days away from Institute (API) was concerned about log reporting are triggered. By setting a length work. In addition, it is often difficult to how the employee count affects the way of employment standard, OSHA will not only assign work relatedness for cases to a specific that the host employer completes the eliminate the possibility of duplicative employer—an example would be upper annual summary, particularly the extremity repetitive motion disorders for an reporting of injuries and illnesses but will also eliminate the reporting of those short- entries for hours worked by all individual from a temporary agency that employees and the average number of works for several different employers in the term temporary employee assignments that course of a week or month. To avoid such may be covered by the temporary agency (Ex. employees: problems, recordkeeping should be the 15: 185). [u]sing the OSHA-specified approach for responsibility of the individual’s actual The Society of the Plastics Industry determining the number of employees and employer. (SPI) recommended that the controlling hours worked, particularly for temporary OSHA agrees with these commenters firm should only keep records for employees and/or smaller establishments, is not often feasible. Assumption (1) [that the that recording work-related injuries and permanently leased workers, stating employer already has this data] is not true for illnesses for temporary, leased ‘‘[f]or temporary employees, the temporary employees. Their hours worked employees will sometimes present these employer who pays an employee (with are maintained by their contract employers. difficulties. However, the solution is the presumption that this is for whom Host employers have dollar costs paid to not, as some commenters urge, to they work) should be required to keep each contractor employer. Therefore, getting require the personnel leasing agency to the records. For permanently assigned, employee counts and hours worked for assume responsibility for Part 1904 leased employees, SPI agrees that such temporaries requires making assumptions recording and reporting. The personnel cases should be recorded by the leasing and estimating (Ex. 15: 375). leasing firm will not necessarily have employer’’ (Ex. 15: 364). The Iowa Because OSHA is using the common better information than the host Health Care Association asked whether law concepts to determine which employer about the worker’s exposures a temporary nurse’s aide who works in workers are to be included in the or accidents in previous assignments, a facility for seven days to cover a records, a worker who is covered in
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terms of recording an injury or illness is be identified with special titles in the definition of employee, students who also covered for counting purposes and job title column, but also does not are unpaid by the company/institution for the annual summary. If a given prohibit the practice. This column is which is providing a clinical or practice worker is an employee under the used to list the occupation of the injured setting’’ (Ex. 15: 226). The Maine common law test, he or she is an or ill worker, such as laborer, machine Department of Labor (Ex. 15: 41) asked employee for all OSHA recordkeeping operator, or nursing aide. However, the following question: purposes. Therefore, an employer must OSHA does encourage employers to [q]uestions about how to report people consider all of its employees when analyze their injury and illness data to such as Interns, Aspire (welfare) program determining its eligibility for the small improve safety and health at the participants, prison release workers and employer exemption, and must provide establishment. In some cases, volunteers are now being asked. A clear reasonable estimates for hours worked identifying temporary or contract definition needs to be established to account and average employment on the annual workers may help an employer to for all kinds of employees. Our Public Sector summary. OSHA has included law requires us to count all people who are manage safety and health more permitted to work. Maybe you don’t want instructions on the back of the annual effectively. Thus an employer may that inclusive a definition, but it is something summary to help with these supplement the OSHA Log to identify to consider. We had to come up with a calculations. temporary or contract workers, although specific definition of volunteers to exclude The Texas Chemical Council argued the rule does not require it. sporadic volunteers (essentially those not that supervising employers should not OSHA received two suggestions that working at a specific place at a specific time have to record injuries or illnesses of would provide an OSHA inspector with on a regular basis). With some workplaces agency-supplied workers unless the injury and illness data for temporary utilizing volunteers and with welfare reform supervising employer has authority to changes expected, you may want to prepare workers without putting their injuries for these questions now. hold these workers accountable for on the host employer’s OSHA 300 Log. safety performance (Ex. 15: 159). The National Grain and Feed These workers should be evaluated According to this commenter, most Association, Grain Elevator and just as any other worker. If a student or temporary agencies limit the contracting Processing Society, and National intern is working as an unpaid employer to following the agencies’ Oilseed Processors Association jointly volunteer, he or she would not be an policies for corrective action for recommended: employee under the OSH Act and an unacceptable performance. OSHA injury or illness of that employee would would simply point out that this is a [e]mployers with employees who work not be entered into the Part 1904 under contract at a site other than the records. If the worker is receiving matter within the contract arrangements employer’s should be required to provide a between the two employers, and that copy of the appropriate first report of injury compensation for services, and meets OSHA intervention in this area is not or OSHA 301 to the site controlling the common law test discussed earlier, necessary or appropriate. In any event, employer. The site controlling employer can then there is an employer-employee we believe that this should not then maintain a file of Form 301’s to facilitate relationship for the purposes of OSHA determine who records occupational OSHA’s evaluation of workplace hazards (Ex. recordkeeping. The employer in that injuries and illnesses. 15: 119). relationship must evaluate any injury or The Phibro-Tech company asked ‘‘[i]f The Douglas Battery Manufacturing illness at the establishment and enter it the facility is now responsible for (Ex. 15: 82) company suggested the into the records if it meets the recording tracking these injuries on their Form following alternative: criteria. 300, will this affect the Worker’s Section 1904.32 Annual Summary Compensation liability?’’ (Ex. 15: 35). [a]n option that would allow an employer of temporary workers to determine the Tracking injuries and illnesses for At the end of each calendar year, incident rate of the temporaries, would be to section 1904.32 of the final rule requires OSHA purposes does not affect an require the temporary agency/ contractor to employer’s workers’ compensation forward a copy of its OSHA log for workers each covered employer to review his or liability. An employer’s liability for at a particular facility, to that facility by her OSHA 300 Log for completeness and workers’ compensation is a separate February of the next calendar year. The accuracy and to prepare an Annual matter that is covered by state law. names and other personal identifiers of the Summary of the OSHA 300 Log using Employers who maintain workers’ temporary/contract workers could be the form OSHA 300–A, Summary of compensation coverage will be removed prior to submittal but the data Work-Related Injuries and Illnesses, or responsible for injuries and illnesses would be available on site for agency an equivalent form. The summary must regardless of which employer records inspection purposes. be certified for accuracy and them for OSHA purposes. OSHA believes that neither of these completeness and be posted in the Bell Atlantic Network Services asked alternatives would be an acceptable workplace by February 1 of the year ‘‘[a]re contract employee OSHA substitute for completing the 300 Log following the year covered by the recordable injury/illness incidents to be and 301 form for injured workers. The summary. The summary must remain recorded on the same OSHA 300 log as information would not be entered into posted until April 30 of the year in employer’s full-time employees? Are the annual summary, so the which it was posted. they to be identified as ‘‘Contract/ establishment’s statistics would not be Preparing the Annual Summary Temporary’’ employees on the OSHA complete. While these options would requires four steps: reviewing the OSHA 300 Log, i.e., under the column E—Job create a method (although a 300 Log, computing and entering the Title?’’ (Ex. 15: 218). OSHA’s view is cumbersome method) for providing the summary information on the Form 300– that a given establishment should have information to a government inspector, A, certification, and posting. First, the one OSHA Log and only one Log. the data would not be collected for employer must review the Log as Injuries and illnesses for all the statistical purposes. extensively as necessary to make sure it employees at the establishment are Some commenters asked OSHA about is accurate and complete. Second, the entered into that record to create a how they should deal with a variety of employer must total the columns on the single summary at the end of the year. other types of workers. The American Log; transfer them to the summary form; OSHA does not require temporary Ambulance Association suggested that and enter the calendar year covered, the workers or any other types of workers to OSHA ‘‘[s]pecifically exclude from the name of the employer, the name and
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address of the establishment, the employee awareness of the accuracy and completeness or what average number of employees on the recordkeeping process. steps an employer must follow to certify establishment’s payroll for the calendar 1. Company Executive Certification of the accuracy and completeness of the year, and the total hours worked by the the Annual Summary. The final rule Log and Summary with confidence. covered employees. If there were no carries forward the proposed rule’s However, to be able to certify that one recordable cases at the establishment for requirement for certification by a higher has a reasonable belief that the records the year covered, the summary must ranking company official, with minor are complete and accurate would nevertheless be completed by entering revision. OSHA concludes that the suggest, at a minimum, that the certifier zeros in the total for each column of the company executive certification process is familiar with OSHA’s recordkeeping OSHA 300 Log. If a form other than the will ensure greater completeness and requirements, and the company’s OSHA 300–A is used, as permitted by accuracy of the Summary by raising recordkeeping practices and policies, paragraph 1904.29(b)(4), the alternate accountability for OSHA recordkeeping has read the Log and Summary, and has form must contain the same information to a higher managerial level than existed obtained assurance from the staff as the OSHA 300–A form and include under the former rule. OSHA believes responsible for maintaining the records identical statements concerning that senior management accountability (if the certifier does not personally keep employee access to the Log and is essential if the Log and Annual the records) that all of OSHA’s Summary and employer penalties for Summary are to be accurate and requirements have been met and all falsifying the document as are found on complete. The integrity of the OSHA practices and policies followed. In most the OSHA 300–A form. recordkeeping system, which is relied if not all cases, the certifier will be Third, the employer must certify to on by the BLS for national injury and familiar with the details of some of the the accuracy and completeness of the illness statistics, by OSHA and injuries and illnesses that have occurred Log and Summary, using a two-step employers to understand hazards in the at the establishment and will therefore process. The person or persons who workplaces, by employees to assist in be able to spot check the OSHA 300 Log supervise the preparation and the identification and control of the to see if those cases have been entered maintenance of the Log and Summary hazards identified, and by safety and correctly. In many cases, especially in (usually the person who keeps the health professionals everywhere to small to medium establishments, the OSHA records) must sign the analyze trends, identify emerging certifier will be aware of all of the certification statement on the form, hazards, and develop solutions, is injuries and illnesses that have been based on their direct knowledge of the essential to these objectives. Because reported at the establishment and will data on which it was based. Then, to OSHA cannot oversee the preparation of thus be able to inspect the forms to ensure greater awareness and the Log and Summary at each make sure all of the cases that should accountability of the recordkeeping establishment and cannot audit more have been entered have in fact been process, a company executive, who may than a small sample of all covered recorded. be an owner, a corporate officer, the employers’ records, this goal is The certification required by the final highest ranking official working at the accomplished by requiring employers or rule may be made by signing and dating establishment, or that person’s company executives to certify the the certification section of the OSHA immediate supervisor, must also sign accuracy and completeness of the Log 300–A form, which replaces the the form to certify to its accuracy and and Summary. summary portion of the former OSHA completeness. Certification of the The company executive certification 200 form, or by signing and dating a summary attests that the individual requirement imposes different separate certification statement and making the certification has a obligations depending on the structure appending it to the OSHA Form 300–A. reasonable belief, derived from his or of the company. If the company is a sole A separate certification statement must her knowledge of the process by which proprietorship or partnership, the contain the identical penalty warnings the information in the Log was reported certification may be made by the owner. and employee access information as and recorded, that the Log and summary If the company is a corporation, the found on the OSHA Form 300–A. A are ‘‘true’’ and ‘‘complete.’’ certification may be made by a corporate separate statement may be needed when Fourth, the Summary must be posted officer. For any management structure, the certifier works at another location no later than February 1 of the year the certification may be made by the and the certification is mailed or faxed following the year covered in the highest ranking company official to the location where the Summary is Summary and remain posted until April working at the establishment covered by posted. 30 of that year in a conspicuous place the Log (for example, the plant manager The certification requirement where notices are customarily posted. or site supervisor), or the latter official’s modifies the certification provision of The employer must ensure that the supervisor (for example, a corporate or the former rule (former paragraph Summary is not defaced or altered regional director who works at a 1904.5(c)), which required a during the 3 month posting period. different establishment, such as certification of the Annual Summary by Changes from the former rule. company headquarters). the employer or an officer or employee Although the final rule’s requirements The company executive certification who supervised the preparation of the for preparing the Annual Summary are is intended to ensure that a high ranking Log and Summary. The former rule generally similar to those of the former company official with responsibility for required that individual to sign and date rule, the final rule incorporates four the recordkeeping activity and the the year-end summary on the OSHA important changes that OSHA believes authority to ensure that the Form 200 and to certify that the will strengthen the recordkeeping recordkeeping function is performed summary was true and complete. process by ensuring greater appropriately has examined the records Alternatively, the recordkeeper could, completeness and accuracy of the Log and has a reasonable belief, based on his under the former rule, sign a separate and Summary, providing employers and or her knowledge of that process, that certification statement rather than employees with better information to the records are accurate and complete. signing the OSHA form. understand and evaluate the injury and The final rule does not specify how Both the former rule (paragraph illness data on the Annual Summary, employers are to evaluate their 1904.9 (a) and (b)) and the proposed and facilitating greater employer and recordkeeping systems to ensure their rule (paragraph 1904.16(a) and (b))
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contained penalty provisions for the Injury and Illness Log and Summary high level management official, falsification of OSHA records or for the and that the entries on the form and the industrial hygienist, or director of failure to record recordable cases; these year-end summary are true, accurate, health and safety to certify the Log and provisions do not appear in the final and complete’’ (61 FR 4060). Summary because these individuals are rule. OSHA believes, based on the ‘‘Responsible company official’’ was already responsible for ensuring the record and the Agency’s own defined in the proposal as ‘‘an owner of accuracy and completeness of the Log, recordkeeping and audit experience, the company, the highest ranking especially in multi-establishment that this deletion will not affect the company official working at the businesses where recordkeeping is accuracy or completeness of the records, establishment, or the immediate centralized (see, e.g., Exs. 21; 25; 27; 33; employers’ recording obligations, or supervisor of the highest ranking 15: 44, 48, 65, 122, 132, 133, 147, 154, OSHA’s enforcement powers. The company official working at the 161, 169, 174, 176, 193, 194, 199, 203, criminal penalties referred to in establishment’’ (61 FR 4059). By 231, 242, 263, 269, 270, 272, 273, 283, paragraph 1904.9(a) of the former rule requiring a high level individual to sign 284, 289, 290, 292, 295, 297, 299, 301, are authorized by section 17(g) of the each establishment Log certification, the 304, 305, 317, 325, 329, 332, 341, 345, OSH Act and do not need to be repeated proposal sought to create an incentive 346, 348, 364, 368, 377, 385, 386, 387, in the final rule to be enforced. for that official to take steps to ensure 403, 405, 410, 412, 413, 420, 425, 442). Similarly, the administrative citations the accuracy and completeness of the Two commenters suggested that, if a and penalties referred to in paragraph information on the log or face penalties high level official were to be responsible 1904.9(b) of the former rule are for failing to do so. for the certification, he or she should authorized by sections 9 and 17 of the Several commenters (see, e.g., Exs. 15: only be required to certify that the OSH Act. The warning statement on the 50, 105, 415) confirmed that an ‘‘[c]ompany has * * * taken reasonable final OSHA 300–A form or its underreporting incentive did exist steps to ensure the accuracy of the logs’’ equivalent should be sufficient to under the former rule’s certification (Exs. 15: 200, 442). Several remind those who certify the forms of system. For example, the International representatives from the construction their legal obligations under the Act. Chemical Workers’ Union (Ex. 15: 415) industry (see, e.g., Exs. 15: 126, 342, OSHA has revised the final rule’s and Mr. George Cook (Ex. 15: 50) noted 355) urged OSHA to make sure that any certification requirement in response to the potential for this problem to arise in certification provision reflect the questions about its usefulness raised in their comments to the record. Harsco operation of multi-employer the preamble to the proposal (61 FR Corporation (Ex. 15: 105) pointed out construction sites. These commenters 4047). In particular, the proposal noted that a contractor’s accident rate will recommended that the certifying official that the person responsible for affect its ability to bid for jobs, and there either be the senior official on-site or preparing the Log and Summary might, is thus an incentive to keep rates low by that person’s immediate superior. in some cases, have an incentive not to not recording all injuries and illnesses. Other employer representatives report injuries and illnesses, which There were many responses to the believed that the broad nature of the would, of course, impair the accuracy of proposed change in the certification proposed certification could make the the Log. OSHA stated that ‘‘some requirement. In general, a broad cross- certification vulnerable to legal liability employers mistakenly believe that section of commenters (see, e.g., Exs. 15: (see, e.g., Exs. 20; 33; 15: 122, 133, 147, 70, 127, 136, 137, 141, 153, 163, 170, recording a case implies fault on the 149, 176, 193, 199, 201, 205, 220, 231, 224, 266, 278, 324, 371, 407, 418, 429) part of the employer’’ and thus has the 236, 272, 273, 284, 290, 292, 297, 301, gave unqualified support to the potential to adversely affect their ability 304, 313, 318, 320, 335, 345, 346, 352, proposal’s certification by a to defend workers’ compensation claims 353, 368, 373, 375, 389, 396, 424, 425, ‘‘responsible corporate official.’’ Typical or lawsuits. Some employers also have 427, 428, 430). The National Association of these comments was the New Jersey established ‘‘accountability systems’’ of Manufacturers (Ex. 15: 305), in a Department of Labor’s statement that the that are based on the number of OSHA statement that is representative of the recordables, i.e., that evaluate the safety proposed change would result in views of these commenters, said that: performance of managers by the number heightened awareness of health and of injuries and illnesses reported by safety problems by management, [t]he language of the certification is totally workers in the departments or enhanced efforts to reduce workplace impractical and unreasonable in that it is organizational units under their control. injuries and illnesses, and more written as a certification of absolute accurate reporting (Ex. 15: 70). The completeness and accuracy. This creates OSHA noted that individuals whose such an unreasonably high standard that no performance, promotions, AFL–CIO noted that requiring top one should legitimately be asked or required compensation, and/or bonuses depend corporate officials to be responsible to sign it. As a general rule, we believe an on the achievement of reduced injury ‘‘represents a fundamental change in the individual would be expected to have and illness rates ‘‘may be discouraged importance of data gathering in the significantly better knowledge of the from fully and accurately recording workplace’’ (Ex. 15: 418). information on his/her personal income tax injuries and illnesses (61 FR 4047) A number of commenters expressed return than on the OSHA Form 300; yet even ***’’ Managers and supervisors being reservations about the definition of the certification on the personal income tax evaluated by the numbers’’ also may ‘‘responsible corporate official’’ and the return includes the language ‘‘to the best of have an incentive to avoid recording as extent of the responsibility and/or legal my knowledge and belief.’’ This clause must be added to the certifying language. many cases as possible. liability such certification might impose OSHA proposed to change the former on certifying officials. Some Numerous commenters favored a dual rule’s certification requirements. In the commenters argued that it was level of accountability, with a first level proposed rule, OSHA proposed to unreasonable for a high corporate certification by the ‘‘responsible require that a responsible company official, who might not be familiar with company official,’’ as defined in the official certify to the accuracy and the recordkeeping function and its legal proposal, and a second level completeness of the Log and Summary. requirements, to certify to the accuracy certification required by a high level According to the proposal, that person and completeness of the Log and corporate official with safety and health would sign the summary to certify that Summary. These commenters argued responsibilities (see, e.g., Exs. 20, 15: 65, ‘‘he or she has examined the OSHA that it would be more appropriate for a 89, 182, 369, 380, 409, 415). These
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participants recommended that OSHA Textile Manufacturers Institute (Ex. 15: Commitment the information will be require a more senior official, at a 156), ‘‘[a] corporate official (i.e., safety suspect’’ (Ex. 15: 31). corporate level beyond the director, human resources director, OSHA has slightly modified the establishment keeping the records, Chief Executive Officer) should never be proposed definition of responsible additionally certify that the company required to certify the accuracy of the company official in the text of the final had made a good faith effort to ensure logs. Commenters also stated that rule. In the final rule, the person who accurate and complete records for all of placing the responsibility on senior must perform the certification must be the employer’s establishments. The management would increase the a company executive. OSHA does not American Automobile Manufacturers economic and paperwork burden of the believe that an industrial hygienist or a Association (AAMA) stated that it: rule because these individuals would safety officer is likely to have sufficient [a]grees that a corporate official responsible need additional training and would authority to ensure the integrity of a for health and safety and the highest ranking conduct audits, particularly at company’s recordkeeping process. company official at an establishment should businesses with many work locations Therefore, the final rule requires that certify that a good faith effort for proper (see, e.g., Exs. 15 : 213, 259, 375, 395). the certification be provided by an recordkeeping has taken place, and the A few commenters stated that none of owner of a sole proprietorship or individual responsible for day-to-day OSHA OSHA’s proposed approaches, partnership, an officer of the recordkeeping should certify the accuracy corporation, the highest-ranking official and completeness of the log (Ex. 15–409). including the Log and Summary certification, would significantly at the establishment, or that person’s OSHA has not adopted a dual decrease the financial incentives supervisor. OSHA believes that this certification requirement because one employers have for underreporting (see, definition takes into account and certification should be enough to make e.g., Exs. 15: 39, 199, 406). The Ogletree, addresses the concerns of the comments sure that the records are accurate. In Deakins, Nash, Smoak & Stewart received from construction employers addition, a dual certification Coalition (ODNSSC) said that ‘‘[i]n the (see, e.g., Exs. 15: 105, 126.342, 355). requirement would increase the final analysis, the one measure that will OSHA is also aware that senior complexity and burdens of the final have the greatest effect in fostering the management officials cannot be rule, without significantly adding maintenance of accurate logs is finally expected to have hands-on experience incentives for employers to keep better within the grasp of all interested parties: in the details of the logs and summaries records. the promulgation of a final rule * * * and therefore that their certification Some commenters wished OSHA to that is well conceived, makes intuitive attests to the overall integrity of the maintain the former rule’s approach to and analytical sense, and as such is recordkeeping process. In response to certification. These participants were largely accepted within the regulated numerous comments that certification generally skeptical of senior by the responsible company official be community’’ (Ex. 15: 406). management certification, qualified by the addition to the characterizing it as impractical, onerous, Although OSHA believes that the certification of a clause such as ‘‘to the burdensome, unrealistic, intrusive, and final rule has many features that will best of my knowledge and belief’’ (see, infringing on the prerogative of enhance the accuracy and completeness e.g., Exs. 20, 15: 122, 193, 199, 205, 220, management to designate the of reporting, the Agency has included a 272, 273, 290, 305, 320, 335, 375, 396, appropriate person(s) to certify the Log company executive level of certification 424, 425, 427, 428, 430), OSHA has (see, e.g., Exs. 15: 9, 15, 39, 45, 60, 89, in the final rule. OSHA believes that added that the certification required by 96, 132, 149, 156, 183, 184, 185, 195, company executive certification will the final rule must be based on the 200, 201, 203, 204, 213, 218, 225, 239, raise employer awareness of the official’s ‘‘reasonable belief’’ that the 259, 260, 262, 265, 271, 272, 303, 304, importance of the OSHA records, Log and Summary are accurate and 313, 317, 318, 320, 332, 335, 338, 344, improve their accuracy and complete. Certification thus means that 352, 353, 360, 373, 378, 389, 390, 392, completeness (and thus utility), and the certifying official has a general 401, 406, 414, 423, 424, 427, 428, 430, decrease any underreporting incentive. understanding of the OSHA 431). According to the Battery Council The final rule therefore requires a recordkeeping requirements, is familiar International, ‘‘[t]he threat of civil and higher level company official to certify with the company’s recordkeeping criminal liability provides more than to their accuracy and completeness. process, and knows that the company enough incentive to ensure the accuracy Thus the final rule reflects OSHA’s has effective recordkeeping procedures of the recordkeeping Log and Summary’’ agreement with those commenters who and uses those procedures to produce (Ex. 15: 161). Mallinckrodt Chemical, stated that the Log and Summary must accurate and complete records. The Inc., and the Interconnecting and be actively overseen by higher level precise meaning of ‘‘reasonable belief’’ Packaging Electronic Circuits management and that certification by will be determined on a case-by-case Corporation echoed this belief (Exs. 15: such an official would make basis because circumstances vary from 69, 172). The Vulcan Chemical management’s responsibility for the establishment to establishment and Company went so far as to recommend accuracy and completeness of the decisions about the recordability of that OSHA delete certification system clear (see, e.g., Exs. 20; 15: 31, individual cases may differ, depending requirements completely and rely only 65, 70, 89, 127, 136, 137, 141, 153, 163, upon case-specific details. on the proposed penalty provisions (Ex. 170, 182, 224, 266, 278, 324, 369, 371, 2. Number of employees and hours 15: 171). 380, 396, 407, 409, 415, 418, 429). As worked. Injury and illness records Most commenters opposing high-level the Union Carbide Company stated, provide a valuable tool for OSHA, management certification argued that having a higher authority sign a employers, and employees to determine management-designated, well-qualified, qualified certification of the summary where and why injuries and illnesses lower level administrative personnel ‘‘[w]ould encourage activities, such as occur, and they are crucial in the perform the recordkeeping function and training and periodic reviews/audits of development of prevention strategies. can therefore best certify to the accuracy the logs, to improve the accuracy and The final rule requires employers to of the OSHA 300 Log (see, e.g., Exs. 15: completeness of the data’’ (Ex. 15: 396). include in the Annual Summary (the 69, 220, 225, 227, 281, 297, 305, 313, In the words of one safety consultant, OSHA Form 300–A) the annual average 352, 353). According to the American ‘‘[u]ntil there is a Corporate number of employees covered by the
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Log and the total hours worked by all per month per employee, to minimize from one month to three months is covered employees. In the proposal (61 the burden (see, e.g., Exs. 15: 272, 303, intended to raise employee awareness of FR 4037), OSHA stated that this 335, 359) or excluding establishments the recordkeeping process (especially information would facilitate hazard with fewer than 100 employees from the that of new employees hired during the analysis and incidence rate calculations requirement altogether (Ex. 15: 375). posting period) by providing greater for each covered establishment. A OSHA’s view is that the value of the access to the previous year’s summary number of commenters supported the total hours worked and average number without having to request it from proposed approach and felt that it of employees information requires its management. The additional two would not be a burden on employers, as inclusion in the Summary, and the final months of posting will triple the time long as OSHA granted some flexibility rule reflects this determination. Having employees have to observe the data to employers who did not have this information will enable employers without imposing additional burdens on sophisticated recordkeeping systems and employees to calculate injury and the employer. The importance of (see, e.g., Exs. 15: 48, 61, 70, 78, 153, illness incidence rates, which are employee awareness of and 163, 181, 262, 310, 350, 369, 429). For widely regarded as the best statistical participation in the recordkeeping example, the Safety Services measure for the purpose of comparing process is discussed in the preamble to Administration of the City of Mesa, an establishment’s injury and illness sections 1904.35 and 1904.36. Arizona, a small employer, stated: experience with national statistics, the The requirement to post the Summary [f]or most employers, the average number records of other establishment, or trends on February 1 is unchanged from the of employees is readily available; the work over several years. Having the data posting date required by the former rule. hour totals may, or may not be so easily available on the Form 300–A will also As OSHA stated in the proposal (61 FR obtained, depending upon the book keeping make it easier for the employer to 4037) ‘‘one month (January) is a methodology. For salaried employees, where respond to government requests for the reasonable time period for completing detailed hourly records are not maintained, data, which occurs when the BLS and the summary section of the form.’’ Only the 2,000 hr/yr would be used in any case. OSHA collect the data by mail, and three commenters disagreed (see, e.g., In our case, both employee numbers and total when an OSHA or State inspector visits Exs. 15: 347, 402, 409); two of these hours worked is available and presents no problem (Ex. 15: 48). the facility. In particular, it will be commenters suggested that 60 days were easier for the employer to provide the required to do so (Exs. 15: 347, 409). Other commenters stated that the total OSHA inspector with the hours worked OSHA believes that, since the required number of hours worked was readily and employment data for past years. process is simple and straightforward, available through payroll records and OSHA does not believe that this 30 days will be sufficient. Delaying the that calculating it would present only a requirement creates the time and cost posting any further would mean that minimal burden, but were opposed to burden some commenters to the record employers would not have access to the the required inclusion of the annual suggested, because the information is Summary for a longer period, thus average number of employees because readily available in payroll or other diminishing the timeliness of the posted this number is highly variable, difficult records required to be kept for other information. to assess where employment is seasonal purposes, such as income tax, OSHA’s proposal would have and subject to high turnover, and not unemployment, and workers’ required employers to post the summary important to incidence calculations (see, compensation insurance records. For for one year, based on the Agency’s e.g., Exs. 15: 123, 145, 170, 225, 359, the approximately 10% of covered preliminary conclusion that continuous 375). employers who participate in the BLS’s posting presented no additional burden Other commenters opposed including Annual Survey of Occupational Injuries for employers and would be beneficial in the summary the average number of and Illnesses, there will be no to employees (61 FR 4037–4038). The employees and the total number of additional burden because this one-year posting period was hours worked because they believed the information must already be provided to unconditionally supported by a number costs of compiling this information the BLS. Moreover, the rule does not of commenters (see, e.g., Exs. 15: 70, would outweigh its benefits, which they require employers to use any particular 153, 154, 199, 277) and was supported believed to be minimal (see, e.g., Exs. method of calculating the totals, thus by others on the condition that no 15: 9, 44, 184, 195, 205, 214, 247, 272, providing employers who do not updating of the posted summary be 303, 308, 313, 335, 341, 352, 353, 412, maintain certain records—for example required (see, e.g., Exs. 15: 262, 288, 423, 431), especially in industries, like the total hours worked by salaried 435). The AAMA and the Ford Motor health care, with high turnover rates employees—or employers without Co. supported a ten-month posting (Ex. 15: 341). One company estimated sophisticated computer systems, the period (from March 1 to December 31) its cost of collecting data on total hours flexibility to obtain the information in (Exs. 15: 347, 409). worked to be $200,000 to $300,000 and any reasonable manner that meets the A number of commenters stated that to take four to six months (Ex. 15: 423). objectives of the rule. Employers who a one-year posting period was too long Sprint Corporation proposed that do not have the ability to generate and would not be justified by the ‘‘[i]ncidence rates continue to be precise numbers can use various minimal benefits to be achieved by such calculated on an exception basis by the estimation methods. For example, year-long posting. Some of these compliance officer at the time of the employers typically must estimate hours participants contended that the Annual inspection. Larger employers, like worked for workers who are paid on a Summary does not continue to provide Sprint, maintain such incidence rates by commission or salary basis. useful, accurate information after its department or business unit and not by Additionally, the instructions for the initial posting and will not enhance physical location as broken out on the OSHA 300–A Summary form include a employee awareness because, although OSHA log’’ (Ex. 15: 133). worksheet to help the employer posting of a new summary is noticed Some commenters recommended calculate the total numbers of hours when it is done, it becomes ‘‘wallpaper’’ alternatives, including permitting worked and the average number of. shortly thereafter, especially if it is on employers to estimate the total number 3. Extended posting period. The final a cluttered bulletin board (see, e.g., Exs. of hours worked, possibly by using the rule’s requirement increasing the 33; 15: 9, 23, 39, 40, 45, 60, 66, 98, 107, ANSI Z16.4 standard of 173.33 hours summary Form 300–A posting period 119, 121, 122, 176, 203, 204, 231, 232,
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273, 281, 289, 301, 317, 322, 329, 335, participation in the recordkeeping require employers to conduct an independent 341, 344, 347, 348, 356, 358, 381, 389, system without creating a ‘‘wallpaper’’ audit of the completeness of the record. The 399, 405, 409, 414, 428, 430, 431, 434, posting of untimely data. In addition, purpose of the audit would be to determine 441). For example, the Witco that no case went unrecorded, and that no OSHA has concluded that any disabling injury or illness was mislabeled as Corporation predicted that the 12-month additional burden on employers will be non lost workday. Such requirements were posting requirement ‘‘[w]ill result in no minimal at best and, in most cases, not in the proposal, but are desperately one noticing the old Log’s removal and insignificant. All the final rule requires needed. the posting of a new one’’ (Ex. 15: 107). the employer to do is to leave the Linda Ballas (Ex. 15: 31), a safety One commenter even suggested that posting on the bulletin board instead of consultant who performs audits of continuous posting ‘‘[u]ndermines the removing it at the end of the one-month OSHA injury and illness records for Agency’s intent in bringing the period. In fact, many employers employers, added [u]ntil there is information to employees’’ attention’’ preferred to leave the posting on the Corporate Commitment the information (Ex. 15: 428). bulletin board for longer than the Other commenters argued that year- will be suspect. * * * Audits are required one-month period in the past, necessary.’’ In fact, the Laborers’ Health long posting was excessive because it simply to provide workers with the created too great a burden on employers. & Safety Fund of North America (Ex. 15: opportunity to view the Annual 310) recommended biennial third-party They stated that extended posting Summary and increase their awareness would require employers to make audits. of the recordkeeping system in general In the final rule, OSHA has not periodic inspections to ensure that the and the previous year’s injury and adopted regulatory language that summary had not been taken down, illness data in particular. OSHA agrees requires formal audits of the OSHA Part covered, or defaced (see, e.g., Exs. 37, that the 3-month posting period 15: 57, 80, 97, 151, 152, 179, 180, 272, 1904 records. However, the final rule required by the final rule will have does require employers to review the 303, 335, 346, 381, 410, 431), and that these benefits which, in the Agency’s this additional administrative burden, OSHA records as extensively as view, greatly outweigh any minimal necessary to ensure their accuracy. The especially to employers with large burden that may be associated with establishments that now voluntarily Agency believes that including audit such posting. The final rule thus provisions is not necessary because the post Logs in multiple locations, could requires that the Summary be posted be significant (see, e.g., Exs. 15: 97, 184, high-level certification requirement will from February 1 until April 30, a period ensure that recordkeeping receives the 239, 272, 283, 297, 303, 304, 305, 348, of three months; OSHA believes that the 395, 396, 410, 424, 430). One suggestion appropriate level of management 30 days in January will be ample, as it attention. made by commenters to minimize this has been in the past, for preparing the burden was to post the Summary for one Some companies, especially larger current year’s Summary preparatory to ones, may choose to conduct audits, month at the establishment and then at posting. a central location for the remaining however, to ensure that the records are 4. Review of the records. The accurate and complete; many companies eleven months (see, e.g., Exs. 15: 151, provisions of the final rule requiring the 152, 179, 180) or to permit electronic commented that they already perform employer to review the Log entries records audits as part of their company’s posting (Ex. 15: 184). Other employers before totaling them for the Annual opposed the extended posting period on safety and health program. For example, Summary are intended as an additional the Ford Motor Company (Ex. 15: 347), the grounds that a one-month period quality control measure that will posting was sufficient to achieve Dow Chemical Company (Ex. 15: 335), improve the accuracy of the information OSHA’s objectives (see, e.g., Exs. 15: 9, and Brown & Root (Ex. 15: 423) reported in the Annual Summary, which is 15, 39, 45, 49, 57, 69, 74, 80, 89, 97, 98, that they audit their injury and illness posted to provide information to 116, 119, 133, 163, 182, 184, 195, 203, records on a regular basis. Also, three employees and is also used as a data 287, 289, 335, 356, 396, 424, 427, 428, commenters to the record were safety source by OSHA and the BLS. 441, 443), especially since employees and health consultants who provide Depending on the size of the have access to the summary at any time injury and illness auditing services to establishment and the number of during the retention period (see, e.g., employers, in addition to other safety injuries and illnesses on the OSHA 300 Exs. 15: 9, 15, 69, 80, 98, 119, 136, 137, and health services (Exs. 15: 31, 345, Log, the employer may wish to cross- 141, 161, 200, 204, 224, 225, 266, 272, 406). In the past, OSHA has entered into 278, 303, 312, 317, 324, 348, 374, 395, check with any other relevant records to a number of corporate-wide settlement 405, 406, 410, 412, 431). Still other make sure that all the recordable agreements with individual companies commenters thought the one-year period injuries and illnesses have been that included third-party audits of the was too long but supported a two or included on the Summary. These employers’ injury and illness records even three-month posting period as records may include workers’ (e.g., Ford, General Motors, Union adding little, if any, additional burden compensation injury reports, medical Carbide). OSHA expects that many of (see, e.g., Exs. 37, 15: 78, 89, 199, 235, records, company accident reports, and/ these companies will continue to audit 256, 277). or time and attendance records. their injury and illness records and their After a review of all the comments OSHA did not propose that any recordkeeping procedures, and to take received and its own extensive auditing or review provisions be any other quality control measures they experience with the recordkeeping included in the final rule. However, believe to be necessary to ensure the system and its implementation in a several commenters suggested that quality of the records. However, OSHA variety of workplaces, OSHA has OSHA include requirements that would has not required records audits in the decided to adopt a 3-month posting require employers to audit the OSHA final rule because the Agency believes period. The additional posting period 300 Log information (see, e.g., Exs. 35; that the combination of final rule will provide employees with additional 36; 15: 31, 310, 418, 438). For example, requirements providing for employee opportunity to review the summary the United Auto Workers (Ex. 15: 438) participation (§ 1904.35), protecting information, raise employee awareness stated: employees against discrimination for of the records and their right to access [t]he most important change OSHA could reporting work-related injuries and them, and generally improve employee make in recordkeeping rules would be to illnesses to their employer (section
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1904.36), requiring review by employers calendar year the establishment was allowed to post their summaries at a of the records at the end of the year, and operating, retain the Summary, and centralized location and only be mandating two level certification of the make the Summary accessible to required to do so at the establishment if records will provide the quality control employees and government officials. it was a major construction site in mechanisms needed to improve the Other comments. Some commenters operation for at least one year (Ex. 15: quality of the OSHA records. availed themselves of the opportunity to 116). Deletions from the former rule. Except comment on portions of the OSHA believes that permitting for the foregoing changes discussed recordkeeping rule that OSHA did not centralized posting only would above, the final rule is generally similar propose to change. Some of these substantially interfere with ready to the former rule in its requirements for comments addressed the issue of employee access to the Log, especially preparing, certifying and posting of the whether to post a year-end Summary at for employers operating many different year-end Summary. However, some all. Posting the Summary was almost sites. The record does not suggest that provisions of the former rule related to unanimously supported, but a few retaining the requirement for posting the Summary have not been included in commenters opposed posting on the summaries at each establishment will be the final rule. For example, the former grounds that posting had ‘‘[a] de burdensome to employers and the final rule required employers with employees minimus effect on employee safety and rule accordingly requires that multi- who did not report to or work at a single accident prevention’’ (Ex. 15: 46), was establishment employers post a establishment, or who did not report to not an accurate measure of current Summary in each establishment relating a fixed establishment on a regular basis, safety and health conditions (see, e.g., that establishment’s injury and illness to hand-deliver or mail a copy of the Exs. 15: 95, 126), or was unnecessary experience for the preceding year. Summary to those employees. OSHA and burdensome for their industry (e.g, Section 1904.33 Retention and proposed to maintain this requirement, the maritime industry (Ex. 15: 95), Updating which was supported by one commenter construction industry (Ex. 15: 126), and (Ex. 15: 298) but opposed by many retail store industry (Ex. 15: 367)). Section 1904.33 of the final rule deals others because of the administrative cost Although opposed to the posting of a with the retention and updating of the of preparing such mailings, especially in year-end summary, one company urged OSHA Part 1904 records after they have high turnover industries like OSHA to require that year-end been created and summarized. The final construction (see, e.g., Exs. 15: 116, 132, summaries be submitted to OSHA (Ex. rule requires the employer to save the 199, 200, 201, 312, 322, 329, 335, 342, 15: 63). OSHA 300 Log, the Annual Summary, 344, 355, 375, 395, 430, 440, 441). These Alternatives to posting were suggested and the OSHA 301 Incident Report commenters pointed out that employees by some commenters. One advocated forms for five years following the end of who do not report to a single annual informational meetings with the calendar year covered by the establishment still have the right to employees instead (Ex. 15: 126), while records. The final rule also requires the view the summary at a central location others supported mailing the summary employer to update the entries on the and to obtain copies of it. to each employee and providing the OSHA 300 Log to include newly In the final rule, OSHA has decided summary to new employees at discovered cases and show changes that not to include the proposed requirement orientation (Ex. 15: 154) or by e-mail have occurred to previously recorded for individual mailings as unnecessary (Ex. 15: 156). Three employers cases. The provisions in section 1904.33 because final paragraph 1904.30(b)(3) recommended excluding small state that the employer is not required requires that every employee be linked, establishments (fewer than 20, 50 or 100 to update the 300A Annual Summary or for recordkeeping purposes, to at least employees) from posting if all column the 301 Incident Reports, although the one establishment keeping a Log and totals on the Log were zero (see, e.g., employer is permitted to update these Summary that will be prepared and Exs. 15: 304, 358, 375). forms if he or she wishes to do so. posted. In other words, every employee OSHA believes, based on the record As this section makes clear, the final covered by the rule will have his or her evidence and its own extensive rule requires employers to retain their injuries or illnesses recorded on a recordkeeping experience, that posting OSHA 300 and 301 records for five particular establishment’s Log, even if the Summary is important to safety and years following the end of the year to that employee does not routinely report health for all the reasons described which the records apply. Additionally, to that establishment or is temporarily above. Some of the suggested employers must update their OSHA 300 working there. Thus every employee alternatives may be useful, and OSHA Logs under two circumstances. First, if will have 3-month access to the Log and encourages employers to use any the employer discovers a recordable Summary at the posted location or may practices that they believe will enhance injury or illness that has not previously obtain a copy the next business day their own and employee awareness of been recorded, the case must be entered under paragraph 1904.35(b)(2)(iii), safety and health issues, provided that on the forms. Second, if a previously making the need for hand-delivery or they also comply fully with the final recorded injury or illness turns out, mailing unnecessary. rule’s posting requirements. based on later information, not to have Under the former rule, multi- Another issue raised by commenters been recorded properly, the employer establishment employers who closed an was whether multi-establishment must modify the previous entry. For establishment during the year were not employers should be required to post example, if the description or outcome obligated to post an Annual Summary their summaries in each establishment, of a case changes (a case requiring for that establishment. OSHA believes as required by the former rule. medical treatment becomes worse and that this requirement is also Employers generally supported posting the employee must take days off work unnecessary because it is obvious in at each establishment, although one to recuperate), the employer must such cases that there is no physical commenter opposed posting at each remove or line out the original entry and location at which to post the Summary. establishment in multi-establishment enter the new information. The Closing an establishment does not, companies as overly burdensome and employer also has a duty to enter the however, relieve an employer of the without benefit (Ex. 15: 356). One date of an employee’s return to work or obligation to prepare and certify the construction employer argued that the date of an injured worker’s death on Summary for whatever portion of the construction companies should be the Form 301; OSHA considers the
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entering of this information an integral extremely rare that any new information on recordkeeping, and the capping of day part of the recordkeeping for such cases. an illness or injury surfaces more than a few counts) will significantly reduce the The Annual Summary and the Form 301 months after an injury is recorded, while the recordkeeping costs and administrative need not be updated, unless the administrative cost of having to update a log burden associated with the tracking of and summary is significant for the rare cases employer wishes to do so. The that yield information after one year (Ex. 15: long-term cases. requirements in this section 1904.33 do 395). The comments on the proposed rule’s not affect or supersede any longer updating requirements for individual retention periods specified in other Several commenters, however, entries on the OSHA Form 300 reflected OSHA standards and regulations, e.g., in opposed the three-year retention period a considerable amount of confusion OSHA health standards such as and favored the former rule’s five-year about the proposed rule’s requirements Cadmium, Benzene, or Lead (29 CFR retention period (see, e.g., Exs. 20, 24, for updating. Because the proposed rule 1910.1027, 1910.1028, and 1910.1025, 15: 153, 350, 359, 379, 407, 415, 429). did not state how frequently the form respectively). For example, the American Industrial was to be updated, some employers The proposed rule (61 FR 4030, at Hygiene Association (AIHA) opposed interpreted the proposed rule as 4061) would have reduced the retention the shorter retention period, stating: permitting quarterly updates (proposed and updating periods for these records [A]IHA opposes OSHA’s proposed change by OSHA for year-end summaries only) to three years. The language of the of OSHA recordkeeping record retention during the retention period (see, e.g., proposal was as follows: from 5 to 3 years. There is little work in Exs. 15: 9, 61, 89, 170, 181, 288, 389). record retention, and much information lost Some participants argued for even less (a) Retention. OSHA Forms 300 and 301 or if they are discarded. We recommend equivalents, year-end summaries, and injury frequent updating (see, e.g., Exs. 15: maintaining the 5 year retention for OSHA 151, 152, 179, 180, 317, 348). Several and illness records for ‘‘subcontractor Logs and supporting 301 forms (Ex. 15: 153.) employees’’ as required under Sec. 1904.17 employers recognized that the Log is an of this Part shall be retained for 3 years According to NIOSH, which favored ongoing document and that information following the end of the year to which they the longer retention period, retaining must be updated on a regular basis, relate. records for five years: preferably at the same frequency as (b) Updating. During the retention period, [a]llows the aggregation of data over time required for initial recording (see, e.g. employers must revise the OSHA Form 300 that is important for evaluating distributions Exs. 15: 65, 201, 313, 346, 352, 353, or equivalent to include newly discovered of illnesses and injuries in small recordable injuries or illnesses. Employers 430). The final rule requires Log updates establishments with few employees in each must revise the OSHA Form 300 to reflect to be made on a continuing basis, i.e., department/job title. Also, the longer changes which occur in previously recorded as new information is discovered. For retention period is important for the injuries and illnesses. If the description or example, if a new case is discovered observation of trends over time in the outcome of a case changes, remove the recognition of new problems and the during the retention period, it must be original entry and enter the new information evaluation of the effectiveness of intervention recorded within 7 calendar days of to reflect the more severe consequence. discovery, the same interval required for Employers must revise the year-end summary in large companies. In addition, the longer retention period makes possible the the recording of any new case. If new at least quarterly if such changes have information about an existing case is occurred. assessment of trends over time or to determine if a current cluster of cases is discovered, it should be entered within Note to Sec. 1904.9: Employers are not unusual for that industry. Reducing the 7 days of receiving the new information. required to update OSHA Form 301 to reflect retention period would thus have a changes in previously recorded cases. OSHA has also decided to require detrimental effect on these types of analysis, updating over the entire five-year A number of commenters supported which are frequently used by NIOSH in field retention period. OSHA believes that the proposed reduction in the retention studies (Ex. 15: 407). maintaining consistency in the length of period from five years to three years on The American Industrial Hygiene the retention and updating periods will the ground that it would reduce Association recommended a longer simplify the recordkeeping process administrative burdens and costs retention period (up to 30 years) for the without imposing additional burdens on without having any demonstrable effect OSHA 301 form to accommodate employers, because most updating of on safety and health (see, e.g., Exs. 22, occupational diseases with long latency the records occurs during the first year 33, 37, 15: 9, 39, 61, 69, 82, 89, 95, 107, periods (Ex. 15: 153). following an injury or illness. 121, 133, 136, 137, 141, 154, 173, 179, In this final rule, OSHA has decided The comments OSHA received on the 181, 184, 201, 204, 213, 224, 225, 239, to retain the five-year retention proposed quarterly updating of year-end 242, 263, 266, 269, 270, 272, 278, 283, requirement for OSHA injury and summaries were mixed. Some thought 288, 304, 307, 321, 322, 332, 334, 341, illness records because the longer time that such updating would provide 347, 348, 368, 375, 377, 384, 387, 390, period will enable employers, timely and accurate information to 392, 395, 396, 397, 409, 413, 424, 425, employees, and researchers to obtain employees at little cost (see, e.g. Exs. 15: 427, 443). According to the American sufficient data to discover patterns and 9, 89, 170, 260, 262, 265, 401), while Iron and Steel Institute (AISI), whose trends of illnesses and injuries and, in others saw the requirement as views were typical of those of this group many cases, to demonstrate the burdensome and costly and without of commenters, a three-year retention statistical significance of such data. commensurate value (see, e.g. Exs. 15: period: In addition, OSHA has concluded that 78, 225, 289, 337, 406, 412). Typical of [s]hould reduce employers’ administrative the five-year retention period will add those commenters who viewed such a costs without sacrificing any accuracy in the little additional cost or administrative requirement as burdensome was the records of serious illnesses and injuries. burden, since relatively few cases will American Automobile Manufacturing Additional cost savings could be surface more than three years after the Association (AAMA), which stated accomplished by limiting the time period injury and illness occurred, and the vast ‘‘[u]pdating prior year totals on the during which an employer must update its majority of cases are resolved in a short injury and illness records to one year. Such annual summary(s) once posted, is of a change would allow employers to close the time and do not require updating. In little value. The increase in total books sooner on the health and safety data addition, OSHA believes that other numbers is generally so modest as to not for a particular year, without resulting in any provisions of the final rule (e.g., affect the overall magnitude of problems loss of accuracy. In AISI’s experience, it is computerization of records, centralized within an establishment’’ (Ex. 15: 409).
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Some commenters recommended that operated by a new employer for the she owned such establishment, but the new the summaries be updated less remainder of the year. The phrase owner shall retain all records of the frequently, such as semi-annually (see, ‘‘change of ownership,’’ for the purposes establishment kept by the prior owner, as e.g., Exs. 37, 15: 163). The National of this section, is relevant only to the required by § 1904.9(a) of this Part. Safety Council (Ex. 15: 359) transfer of the responsibility to make Some commenters felt that this recommended quarterly updates the and retain OSHA-required injury and proposed section suggested that new first year and annual updates thereafter. illness records. In other words, if one owners could be held responsible for Others interpreted the proposed rule as employer, as defined by the OSH Act, obtaining OSHA injury and illness requiring quarterly updates and re- transfers ownership of an establishment records, but that the former owners were certification and re-posting of the year- to a different employer, the new entity not required to provide them (see, e.g., end summaries after the posting period becomes responsible for retaining the Exs. 15: 119 298, 323, 356, 397, 323). had ended; these commenters opposed previous employer’s past OSHA- This interpretation, which would such a requirement as being overly required records and for creating all clearly place the new owner in an burdensome (see, e.g., Exs. 15: 181, 199, new records required by this rule. untenable position, was not accurate. 201, 225, 272, 288, 303, 308, 351). The final rule requires the previous Consequently, to avoid confusion in the Lucent Technologies (Ex. 15: 272), one owner to transfer these records to the future, the final rule requires former of these commenters, urged OSHA to new owner, and it limits the recording owners to transfer their Part 1904 add the following qualifier to any and recordkeeping responsibilities of records to the new owner. This requirement for the updating of the the previous employer only to the requirement ensures that the continuity annual summary: ‘‘[t]he quarterly period of the prior owner. Specifically, of the records is maintained when a update of the summary is for tracking section 1904.34 provides that if the business changes hands. purposes only and will not require re- business changes ownership, each Sections 1904.35 Employee certification or posting.’’ employer is responsible for recording Involvement, and 1904.36, Prohibition After reviewing these comments and and reporting work-related injuries and Against Discrimination the evidence in the record, OSHA has illnesses only for that period of the year decided not to require the updating of during which each employer owned the One of the goals of the final rule is to annual summaries. Eliminating this establishment. The selling employer is enhance employee involvement in the recordkeeping process. OSHA believes requirement from the final rule will required to transfer his or her Part 1904 that employee involvement is essential minimize employers’ administrative records to the new owner, and the new to the success of all aspects of an burdens and costs, avoid duplication, owner must save all records of the employer’s safety and health program. and avoid the complications associated establishment kept by the prior owner. This is especially true in the area of with the certification of updated However, the new owner is not required recordkeeping, because free and frank summaries, the replacement of posted to update or correct the records of the reporting by employees is the summaries, and the transmission of prior owner, even if new information cornerstone of the system. If employees summaries to remote sites. The Agency about old cases becomes available. fail to report their injuries and illnesses, concludes that updating the OSHA The former OSHA injury and illness the ‘‘picture’’ of the workplace that the Form 300 or its equivalent for a period recording and reporting rule also employer’s OSHA forms 300 and 301 of five years will provide a sufficient required both the selling and buying reveal will be inaccurate and amount of accurate information for employers to record and report data for misleading. This means, in turn, that recordkeeping purposes. OSHA is the portion of the year for which they employers and employees will not have persuaded that updating the year-end owned the establishment. Although the the information they need to improve summary would provide little benefit as former rule required the purchasing long as the information from which the safety and health in the workplace. employer to preserve the records of the Section 1904.35 of the final rule summaries are derived (the OSHA Form prior employer, it did not require the 300) is updated for a full five-year therefore establishes an affirmative prior employer to transfer the OSHA requirement for employers to involve period. injury and illness records to the new Very few comments were received on their employees and employee employer. Section 1904.11 of the former representatives in the recordkeeping OSHA’s proposed position not to rule stated: require the updating of the 301 form. All process. The employer must inform of the comments received supported Where an establishment has changed each employee of how to report an OSHA’s proposed approach (see, e.g., ownership, the employer shall be responsible injury or illness, and must provide for maintaining records and filing reports limited access to the injury and illness Exs. 15: 260, 262, 265, 401). OSHA does only for that period of the year during which not believe that updating the OSHA records for employees and their he owned such establishment. However, in representatives. Section 1904.36 of the Form 301 will enhance the information the case of any change in ownership, the available to employers, employees, and employer shall preserve those records, if any, final rule makes clear that § 11(c) of the others sufficiently to warrant including of the prior ownership which are required to Act prohibits employers from such a requirement in the final rule. be kept under this part. These records shall discriminating against employees for However, the final rule makes it clear be retained at each establishment to which reporting work-related injuries and that employers may, if they choose, they relate, for the period, or remainder illnesses. Section 1904.36 does not update either the Summary or the Form thereof, required under § 1904.6. create a new obligation on employers. 301. The section of OSHA’s proposed rule Instead, it clarifies that the OSH Act’s addressing ‘‘change of ownership’’ anti-discrimination protection applies to Section 1904.34 Change in Business mirrored the former rule with only employees who seek to participate in Ownership slight language changes, as follows: the recordkeeping process.3 Section 1904.34 of the final rule Where an establishment has changed addresses the situation that arises when 3 The relevant language of Section 11(c) that ‘‘No ownership, each employer shall be person shall discharge or in any manner a particular employer ceases operations responsible for recording and reporting discriminate against any employee * * * because at an establishment during a calendar occupational injuries and illnesses only for of the exercise by such employee on behalf of year, and the establishment is then that period of the year during which he or himself or others of any rights afforded by this Act.’’
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Under the employee involvement their right to access the records, either recordkeeping activities, such as in provisions of the final rule, employers by providing them with a copy of the filling out accident forms (see, e.g., Exs. are required to let employees know how 101 form or the log, by having the 15: 23, 87, 225), assisting in accident and when to report work-related injuries employee initial or otherwise investigations (see, e.g., Exs. 15: 170, and illnesses. This means that the acknowledge the log entry, or by other 357, 425), and reviewing accident data employer must establish a procedure for means negotiated with a designated (see, e.g., Exs. 15: 260, 262, 265, 310, the reporting of work-related injuries employee representative; 357, 401, 414). and illnesses and train its employees to • Employers should inform However, most employers, including use that procedure. The rule does not employees of an affirmative duty to many who supported various methods specify how the employer must bring cases to the employer’s attention; to increase employee awareness and • accomplish these objectives. The size of OSHA should add statements to the involvement in the process, opposed a the workforce, employees’ language OSHA recordkeeping forms 101 and 200 provision requiring employers to notify proficiency and literacy levels, the that inform employees of their right to individual employees that their injuries workplace culture, and other factors access the 200 form; • have been recorded on the Log because, will determine what will be effective for OSHA should extend the posting in their views, such a requirement any particular workplace. period for the 200 form from one month would not be likely to achieve OSHA’s Employee involvement also requires to 12 months; stated objective and would be too • Employers should share data with that employees and their representatives burdensome and costly for employers employees and members of safety have access to the establishment’s injury (see, e.g., Exs. 15: 9, 49, 60, 76, 82, 85, and illness records. Employee committees; • 95, 109, 123, 145, 154, 170, 172, 199, involvement is further enhanced by Employers should include more employees in accident investigations 204, 218, 225, 262, 281, 283, 288, 324, other parts of the final rule, such as the 341, 357, 374, 393, 406, 426). extended posting period provided in and analyses; and • Detailed survey data systems Representative of these comments were section 1904.32 and the access those of AT&T and Lucent statements on the new 300 and 301 should be developed so those employees could assist employers in Technologies, which pointed out that forms. workers are currently required to be These requirements are a direct evaluating accident and exposure risks associated with their work processes. notified about the status of job-related outgrowth of the issues framed by incidents by workers’ compensation OSHA in the 1996 proposal. In that OSHA also noted that the General regulations and company benefit Federal Register notice, OSHA Accounting Office (GAO) report (Ex. 3) programs and that separate notification proposed an employee access provision, identified employee lack of knowledge of an OSHA 300 Log entry would § 1904.11(b), and discussed the issue at and understanding of the recordkeeping therefore be confusing and redundant length in the preamble (61 FR 4038, system as one cause of the (Exs. 15: 272 and 15: 303). 4047, and 4048). OSHA did not propose underreporting of occupational injuries On the other hand, individual a specific provision for employee and illnesses. Based on these and other involvement in the reporting process, reports and OSHA’s compliance notification of employees was supported but raised the issue for discussion in the experience, OSHA requested comment by commenters from the unions and preamble (61 FR 4047–48) (see Issue 7. in the proposal on (1) whether professional organizations, as well as by Improving employee involvement). The employers should notify employees that some employers (see, e.g., Exs. 15: 156, proposed rule did contain a reference to their injuries or illnesses have been 181, 233, 247, 310, 350, 369, 414). For section 11(c) of the OSH Act and its entered into the records, (2) if so, how example, the American Association of applicability to retaliatory employers could meet such a Occupational Health Nurses (Ex. 15: discrimination by employers against requirement and the degree of flexibility 181) supported notification ‘‘[a]s a employees who report injuries or OSHA should give employers, (3) any means of improving employee illnesses (61 FR 4062). other ideas for improving employee cooperation and helping employees Specifically, OSHA noted in the involvement in the recordkeeping recognize their role in working safely NPRM that the Keystone Dialogue report system, and (4) the costs and benefits of and promoting a safe workplace.’’ Those (Ex. 5) advocated greater employee alternate proposals. supporting notification suggested that awareness and involvement in the These issues drew considerable reasonable means of providing such recordkeeping process to improve the comment during the rulemaking. With notification would be direct mail, process and enhance safety and health few exceptions (see, e.g., Exs. 15: 13, 78, including a notice in a pay envelope, or efforts in general. There was agreement 201, 389, 406), commenters generally e-mailing a notice and/or the OSHA 301 among members of the Dialogue group supported increasing employee form to affected employees (see, e.g., that, for a number of reasons, among awareness and involvement in the Exs. 15: 310, 350). them lack of knowledge, fear of reprisal, recordkeeping process in some form The National Safety Council’s and apathy, ‘‘employees often do not (see, e.g., Exs. 15: 26, 85, 87, 154, 170, comment (Ex. 15: 359) typifies the views seek access to injury/illness logs (to a 199, 234, 310, 341, 357, 378, 414, 415, of these commenters: sufficient extent) * * * [and] that 418, 426). For example, some [w]e believe that employee involvement in overall workplace safety and health commenters supported increasing occupational safety and health issues is would benefit if the information in the employee awareness by requiring year- highly desirable and that notification is one logs were more widely known. * * *’’ round posting of the OSHA 300 Log aspect of employee involvement. * * * If In this regard, the group made several (see, e.g., Exs. 15: 154, 170, 199, 415, OSHA were to require notification, then recommendations to modify the 426), adding an employee accessibility OSHA should require each employer to statement to the OSHA 300 Log (Ex. 15: create and comply with its own written recordkeeping process and to involve notification policy—perhaps subject to some employees in accident prevention 418) , and requiring employee training limitation such as notification within 7–14 efforts: on recordkeeping issues and procedures • days of entry on the Log. The OSHA OSHA should require employers to (Ex. 15: 418). A number of commenters compliance officer can verify compliance notify employees individually of log also discussed their own efforts to with the company’s policy on a test basis entries for each recordable case and involve employees in various during an inspection.
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Other commenters (see, e.g., Exs. 15: purposes of the Act. Since an injury report be strengthened but to what extent and 234, 283, 348, 426) agreed that the final may trigger an employer’s responsibility to in what ways employees should be rule should not specify how employee abate a hazard, such report is an exercise of brought into the process. notification should be accomplished. an employee’s right under the Act and In response to this support in the therefore protected activity under Section For example, E. I. du Pont de Nemours 11(c) of the Act. Adverse action by an record, OSHA has strengthened the final Corporation (Ex. 15: 348) stated: employer following such a report shall be rule to promote better injury and illness [l]egislating how people communicate is presumed to be discrimination. Examples of information by increasing employees’ confining. Many companies do a fine job of adverse action are verbal warnings, disparate knowledge of their employers’ notifying employees about injuries, treatment, additional training provided only recordkeeping program and by removing investigation findings, hazard reduction, and to injury victims, disciplinary action of any barriers that may exist to the reporting ways to contribute to a safer workplace. kind, or drug testing. Suffering an injury or of work-related injuries and illnesses. Mandating a particular method would be illness by itself shall not be considered To achieve this goal, the final rule probable cause to trigger a drug test. An counterproductive to those organizations establishes a simple two-part process for already doing a good job. * * * We suggest employer may rebut the presumption of discrimination by showing substantial each employer who is required to keep that unless full implications of involving records, as follows: employees in the process are clearly evidence that injured employees receive understood (and are not prohibited by any consistent treatment to those who have not —Set up a way for employees to report other federal agency) no guideline should be suffered injuries. Granting of prizes or work-related injuries and illnesses written—but perhaps suggestions of ways compensation to employees or groups of promptly; and successful companies have worked with their employees who do not report injuries is —Inform each employee of how to employees to improve safety performance discrimination against those employees who report work-related injuries and could be provided and would be useful. do report injuries. Therefore, such programs are violations of Section 11(c) of the Act. illnesses. One participant suggested a policy of OSHA agrees with commenters that The AFL–CIO (Ex. 15: 4218) having the injured employee view the employees must know and understand supported this language and, along with Log to verify its accuracy, noting that that they have an affirmative obligation the Union of Needletrades, Industrial ‘‘[t]his procedure * * * does not appear to report injuries and illnesses. and Textile Employees (UNITE) (Ex. 15: to place additional costs or undue Additionally, OSHA believes that many 380), also recommended that the rule burden on the employer’’ (Ex. 15: 163). employers already take these actions as include a prohibition against retaliation Another recommended a ‘‘face-to-face a common sense approach to or discrimination that would be advisory’’ after an investigation of the discovering workplace problems, and enforced in the same manner as other accident had been completed (Ex. 15: that the rule will thus, to a large extent, violations of the recordkeeping rule (Ex. 414). The American Textile be codifying current industry practice, 15: 418). The AFL–CIO (Ex. 15: 418) Manufacturers Institute (Ex. 15: 156) rather than breaking new ground. suggested more proactive approaches: also requested that OSHA include in the OSHA is convinced that a final rule: [o]ther methods for improving employee performance requirement, rather than involvement in the injury and illness [a]n affirmative obligation on employers to specific requirements, will achieve this recordkeeping system include giving inform employees of their right to report objective effectively, while still giving employees accident causation and prevention injuries or illnesses without fear of reprisal employers the flexibility they need to information from the records. In addition, and to gain access to the Log 300 and to the tailor their programs to the needs of information about departments, accident Form 301 with certain limitations. At a minimum, the Log 300 should contain a their workplaces (see, e.g., Exs. 15: 234, types, injury types, hazards and contributing 283, 348, 359, 426). The Agency finds factors, etc., could and should be shared for statement, which informs employees of their the benefit of employer and employees. rights and protections afforded under the that employee awareness and rule. We recommend the following language participation in the recordkeeping The AFL–CIO, United Auto Workers be added to the log: ‘Employees have a right process is best achieved by such (UAW), Services Employees to report work-related injuries and illnesses provisions of the final rule as the International Union (SEIU), and to their employer and to gain access to the requirement to extend the posting MassCOSH addressed the reporting Log 300 and Form 301.’ period for the OSHA 300 summary, the disincentive that occurs when OSHA has concluded that the addition of accessibility statements on employees are threatened, disciplined, rulemaking record overwhelmingly the OSHA Summary, and requirements or discriminated against for reporting demonstrates that employee awareness designed to facilitate employee access to injuries or illnesses (Exs. 58X, 15: 79, and involvement is a crucial part of an records. 418, 438). MassCOSH recounted how effective recordkeeping program, as well Many of the specific suggestions made health care workers were disciplined for as an overall safety and health program. by commenters have not been adopted reporting multiple needle stick injuries, There was little disagreement over this in the final rule in favor of the more and the United Auto Workers noted that point among participants in the performance-based approach to some injury victims were subject to drug rulemaking, whether they represented employee involvement supported by so testing (Ex. 15: 438). The unions management, labor, government or many commenters. For example, OSHA recommended that discriminatory professional associations (see, e.g., Exs. has decided not to require employers to treatment of employees who report 15: 26, 85, 87, 154, 170, 199, 234, 310, devise a method of notifying individual injuries should be presumed to be a 341, 357, 378, 414, 415, 426). There was employees when a case involving them violation of section 11(c), the anti- also no disagreement with the unions’ has been entered on the OSHA 300 Log. discrimination provision of the OSH Act contention that employees should not An employee notification requirement (see, e.g., Exs. 48, 58X, 15: 379, 418, be retaliated against for reporting work- would be very burdensome and costly, 438). Specifically, the UAW (Ex. 15: related injuries and illnesses and for and the potential advantages of an 438) recommended that the following exercising their right of access to the employee notification system have not regulatory text be added to the final Log and Incident Report forms. The been shown in the record for this rule. rule: prominent employee involvement issues Thus, OSHA is not sure that employee [r]eporting * * * an injury or illness to in the rulemaking were thus not notification would improve the quality management is an activity in support of the whether employee involvement should of the records enough to justify the
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added burdens. Additionally, of their rights to 11(c) protection * * * contains the heading ‘‘Tell us about the employees and their representatives should help alleviate any such case,’’ and elicits information about how have a right to access the records under concerns.’’ the injury occurred, including the the final rule, if they wish to review the employee’s actions just prior to the Employee access to OSHA injury and employer’s recording of a given incident, the materials and tools illness records occupational injury or illness case. involved, and how the incident OSHA believes that the improved The Part 1904 final rule continues occurred, but does not contain the recordkeeping that will result from the OSHA’s long-standing policy of employee’s name. No information other changes being made to the final rule, the allowing employees and their than that on the right-hand portion of enhanced employee involvement representatives access to the the form may be disclosed to an reflected in many of the rule’s occupational injury and illness authorized employee representative. provisions, and the prohibition against information kept by their employers, The employer must provide the discrimination will all work in concert with some limitations. However, the authorized employee representative to achieve the goal envisioned by those final rule includes several changes to with one free copy of all the 301 forms commenters who urged OSHA to improve employees’ access to the for the establishment within 7 calendar require employee notification: more and information, while at the same time days. better reporting and recording. implementing several measures to Employee privacy is protected in the Several of the other suggestions made protect the privacy interests of injured final rule in paragraphs 1904.29(b)(7) to by participants—such as including and ill employees. Section 1904.35 (10). Paragraph 1904.29(b)(7) requires employees in accident investigations requires an employer covered by the the employer to enter the words and involving employees in program Part 1904 regulation to provide limited ‘‘privacy case’’ on the OSHA 300 Log, in evaluation—are beyond the scope of the access to the OSHA recordkeeping lieu of the employee’s name, for Part 1904 regulation, which simply forms to current and former employees, recordable privacy concern cases requires employers to record and report as well as to two types of employee involving the following types of injuries occupational deaths, injuries and representatives. The first is a personal and illnesses: (i) an injury from a needle illnesses. OSHA encourages employers representative of an employee or former or sharp object contaminated by another and employees to work together to employee, who is a person that the person’s blood or other potentially determine how best to communicate the employee or former employee infectious material; (ii) an injury or information that workers need in the designates, in writing, as his or her illness to an intimate body part or to the context of each specific workplace. personal representative, or is the legal reproductive system; (iii) an injury or Moreover, OSHA encourages employers representative of a deceased or legally illness resulting from a sexual assault; to involve their workers in activities incapacitated employee or former (iv) a mental illness; (v) an illness such as accident investigations and the employee. The second is an authorized involving HIV, hepatitis; or analysis of accident, injury and illness employee representative, which is tuberculosis, or (vi) any other illness, if data, as suggested by some commenters, defined as an authorized collective the employee independently and but believes that requiring these bargaining agent of one or more voluntarily requests that his or her name activities is beyond the scope of this employees working at the employer’s not be entered on the log. rule. establishment. Musculoskeletal disorders (MSDs) are OSHA has also included in the final Section 1904.35 accords employees not considered privacy concern cases, rule, in section 1904.36, a statement that and their representatives three separate and thus employers are required to enter section 11(c) of the OSH Act protects access rights. First, it gives any the names of employees experiencing workers from employer retaliation for employee, former employee, personal these disorders on the log. The filing a complaint, reporting an injury or representative, or authorized employee employer must keep a separate, illness, seeking access to records to representative the right to a copy of the confidential list of the case numbers and which they are entitled, or otherwise current OSHA 300 Log, and to any employee names for privacy cases. exercising their rights under the rule. stored OSHA 300 Log(s), for any The employer may take additional This section of the rule does not impose establishment in which the employee or action in privacy concern cases if any new obligations on employers or former employee has worked. The warranted. Paragraph 1904.29(b)(9) create new rights for employees that did employer must provide one free copy of allows the employer to use discretion in not previously exist. In view of the the OSHA 300 Log(s) by the end of the describing the nature of the injury or evidence that retaliation against next business day. The employee, illness in a privacy concern case, if the employees for reporting injuries is not former employee, personal employer has a reasonable basis to uncommon and may be ‘‘growing’’ (see, representative or authorized employee believe that the injured or ill employee e.g., Ex. 58X, p. 214), this section is representative is not entitled to see, or may be identified from the records even intended to serve the informational to obtain a copy of, the confidential list though the employee’s name has been needs of employees who might not of names and case numbers for privacy removed. Only the six types of injuries otherwise be aware of their rights and to cases. Second, any employee, former and illnesses listed in Paragraph remind employers of their obligation not employee, or personal representative is 1904.29(b)(7) may be considered privacy to discriminate. OSHA concurs with the entitled to one free copy of the OSHA concern cases, and thus the additional International Chemical Workers Union, 301 Incident Report describing an injury protection offered by paragraph which, while discussing the issue of or illness to that employee by the end 1904.29(b)(9) applies only to such cases. whether personal identifiers should be of the next business day. Finally, an Paragraph 1904.29(b)(10) protects used on the Log, stated (Ex. 15: 415), authorized employee representative is employee privacy if the employer ‘‘We have never heard of [personal entitled to copies of the right-hand decides voluntarily to disclose the identifiers] being an issue for our portion of all OSHA 301 forms for the OSHA 300 and 301 forms to persons members, except when management establishment(s) where the agent other than those who have a mandatory used the reports as an excuse to represents one or more employees under right of access under the final rule. The discipline ‘unsafe’ workers. The a collective bargaining agreement. The paragraph requires the employer to addition of language notifying workers right-hand portion of the 301 form remove or hide employees’ names or
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other personally identifying information employees, former employees and their 433 U.S. at 457. It upheld the statute before disclosing the forms to persons representatives would violate an injured because of the strong public interest in other than government representatives, or ill employee’s right, under the preserving the documents and because employees, former employees or Constitution and several statutes, to the statute’s procedural safeguards made authorized representatives, as required privacy. On the other hand, a number of it unlikely that truly private materials by paragraphs 1904.40 and 1904.35, commenters emphasized the importance would be disclosed to the public. except in three cases. The employer may of the information contained in the A number of federal circuit courts of disclose the forms, complete with records to employees and unions in appeals, building on Whalen and Nixon, personally identifying information, (2) their voluntary efforts to uncover and have held that individuals possess a only: (i) to an auditor or consultant eliminate workplace safety and health qualified constitutional right to hired by the employer to evaluate the hazards. The following paragraphs confidentiality of personal information, safety and health program; (ii) to the discuss privacy and access issues, and including medical information. See, e.g., extent necessary for processing a claim their relationship to the recordkeeping Paul v. Verniero, 170 F.3d 396, 402 (3d for workers’ compensation or other rule. Cir. 1999); Norman-Bloodsay v. insurance benefits; or (iii) to a public Lawrence Berkeley Laboratory, 135 F.3d The Privacy Interest of the Injured or Ill health authority or law enforcement 1260, 1269 (9th Cir. 1998); F.E.R. v. Employee agency for uses and disclosures for Valdez, 58 F.3d 1530, 1535 (10th Cir. which consent, an authorization, or Whether, and to what extent, the U.S. 1995); John Doe v. City of New York, 15 opportunity to agree or object is not Constitution grants individuals a right F.3d 264, 267 (2d Cir. 1994); Fadjo v. required under section 164.512 of the of privacy in personal information has Coon, 633 F.2d 1172, 1175 (5th Cir. final rule on Standards for Privacy of not been firmly established. In Whalen 1981). See also Anderson v. Romero, 72 Individually Identifiable Health v. Roe, 429 U.S. 589 (1977), the F.3d 518, 522 (7th Cir. 1995) (noting Information, 45 CFR 164.512. Supreme Court considered whether a holdings of federal circuits, including The former rule. The access New York law creating a central seventh circuit, recognizing qualified provisions of the former recordkeeping computer record of the names and constitutional right to confidentiality in regulation required employers to addresses of persons taking certain medical records, but finding it ‘‘not provide government representatives, as dangerous but lawful drugs violated the clearly established’’ that prison inmate well as employees, former employees, constitutional privacy interest of those enjoyed such right in 1992). and their representatives, with access to taking the drugs. The Court rejected the Of the remaining circuits that have the OSHA Logs and year-end claim, primarily because the state addressed the issue, only the Sixth has summaries, including the names of all statute required that government squarely rejected a general injured and ill employees. The former employees with access keep the constitutional right to nondisclosure of regulation permitted only government information confidential and there was personal information. E.g., J.P. v. representatives to have access to the no basis to assume that the requirement DeSanti, 653 F.2d 1080, 1089 (6th Cir. supplemental incident reports (the would be violated. 429 U.S. at 601, 605– 1981). Two circuits have expressed former Form 101). Id. Employees, 606. Although the decision does not say skepticism as to the existence of such a former employees and their whether the Constitution affords right. See American Federation of representatives had no right to inspect protection against disclosure of personal Government Employees, AFL–CIO v. and copy the incident reports, although information, some language suggests Department of Housing and Urban employers were permitted to disclose that it does, at least in some Development, 118 F.3d 786, 788 (D.C. these forms if doing so was included in circumstances. The Court stated: Cir. 1987) (expressing ‘‘grave doubt’’ the terms of a collective bargaining The cases sometimes characterized as whether the Constitution protects agreement. Id. protecting ‘‘privacy’’ have in fact involved at against disclosure of personal The proposed rule. The proposed rule least two different kinds of interests. One is information); Borucki v. Ryan, 827 F.2d would have required employers to the individual interest in avoiding disclosure 836, 845–846 (1st Cir. 1987) (noting lack provide government representatives, of personal matters, and another is the of concrete guidance by Supreme Court and employees, former employees, and interest in independence in making certain and disagreement among circuits on their representatives, with access to the kinds of decisions. 429 U.S. at 598, 599. constitutional right of confidentiality). Recognizing that in some circumstances unredacted OSHA Logs and summaries th[e] duty [to avoid unwarranted disclosure See also Ferguson v. City of Charleston, (61 FR 4061). The proposal would have of personal matters] arguably has its roots in S.C., 186 F.3d 469, 483 (4th Cir.1999) expanded the scope of the former rule’s the Constitution, nevertheless New York’s (declining to decide whether access provisions by requiring statutory scheme, and its implementing individuals possess a general employers to make available the administrative procedures, evidence a proper constitutional right to privacy, noting incident reports (former OSHA Form concern with, and protection of, the circuit conflict). 101, renumbered Form 301 in the final individual’s interest in privacy. 429 U.S. at Where the right to privacy is rule) to employees, former employees, 605 recognized, protection extends to and their designated representatives. Id. A subsequent case, Nixon v. information that the individual would At the same time, OSHA did not intend Administrator of General Services, 433 reasonably expect to remain to provide access to the general public. U.S. 425 (1977), lends further support to confidential. Fraternal Order of Police The proposed standard stated: ‘‘OSHA the existence of a constitutional right of Lodge No. 5 v. City of Philadelphia, 812 asks for input on possible privacy in personal information. At F.2d 105, 112 (3d Cir. 1987); Mangels v. methodologies for providing easy access issue in Nixon was a statute that Pena, 789 F.2d 836, 839 (10th Cir. to workers while restricting access to required the former president to turn 1986). ‘‘The more intimate or personal the general public’’ (61 FR 4048). over both public and private papers to the information, the more justified is the The access provisions of the proposed an archivist who would review them expectation that it will not be subject to rule attracted considerable comment. and return any personal materials. The public scrutiny.’’ Fraternal Order of Many industry representatives argued Court appeared to acknowledge that Police, 812 F.2d at 105. Thus, that disclosure of information contained Nixon had a Constitutionally protected information about the state of a person’s in the injury and illness records to privacy right in personal information. health, including his or her medical
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treatment, prescription drug use, HIV protection against disclosure to those safety information on the OSHA forms status and related matters, is entitled to who have no similar need.’’) concerning one’s own workplace carries privacy protection. See Paul v. Verniero, greater weight than an individual’s right to Balancing the Interests of Privacy and 170 F.3d at 401–402 (collecting cases). privacy. More complete access to the detailed Access injury and illness records has the potential See also Doe v. City of New York, 15 for increasing employee involvement in F.3d at 267 (‘‘[T]here are few matters OSHA historically has recognized that workplace safety and health programs and that are quite so personal as the status the Log and Incident Report (Forms 300 therefore has the potential for improving of one’s health, and few matters the and 301, respectively) may contain working conditions. Analysis of injury and dissemination of which one would information of a sufficiently intimate illness data provides a wealth of information prefer to maintain greater control over.’’) and personal nature that a reasonable for injury and illness prevention programs. The right to privacy is not limited person would wish it to remain Analysis by workers, in addition to analyses only to medical records. Other types of confidential. In its 1978 records access by the employer, lead to the potential of records containing medical information regulation (29 CFR 1910.1020), OSHA developing methods to diminish workplace are also covered. See, e.g., Whalen, addressed the privacy implications of its hazards through additional or different perspectives (61 FR 4048). (computer tapes containing prescription decision to grant employee access to the drug information); Fraternal Order of Log. The agency noted that while Log The proposal asked for comment on Police, 812 F.2d at 112 (police entries are intended to be brief, they alternatives that would preserve broad questionnaire eliciting information may contain medical information, access rights while protecting about employee’s physical and mental including diagnoses of specific fundamental privacy interests, condition); Doe v. SEPTA, 72 F.3d 1133 illnesses, and that disclosure to other including requiring omission of (3d Cir. 1995) (utilization report listing employees, former employees or their personal identifying information for prescription drugs dispensed to representatives raised a sensitive certain specific injury and illness cases employees under employer health plan). privacy issue. 43 FR 31327 (1978). recorded on the Log, and restricting Moreover, personal financial data and However, OSHA concluded that non-government access to the Incident other types of private information may disclosure of the Log to current and Reports to that portion of the Form 301 be subject to privacy protection in former employees and their that does not contain personal certain cases. See Nixon v. representatives benefits these employees information. Ibid. Administrator of General Services, 433 generally by increasing their awareness OSHA continues to believe that U.S. 425, 455 (1977) (personal matters, and understanding of the health and granting employees a broad right of including personal finances, reflected in safety hazards to which they are, or access to injury and illness records presidential papers); Paul v. Verniero, have been, exposed. OSHA found that serves important public interests. There 170 F.3d at 404 (home address of sex this knowledge ‘‘will help employees to is persuasive evidence that access by offender subject to disclosure under protect themselves from future employees and their representatives to ‘‘Megan’s Law’’); Fadjo v. Coon, 633 occurrences,’’ and that ‘‘[i]n such cases, the Log and the Incident Report serves F.2d at 1175 (private details contained the right of privacy must be tempered by as a useful check on the accuracy of the in subpoenaed testimony). the obvious exigencies of informing employer’s recordkeeping and promotes A finding that information is entitled employees about the effects of greater employee involvement in to privacy protection is only the first workplace hazards.’’ Id. at 31327, prevention programs that contribute to step in determining whether a 31328. safer, more healthful workplaces. For disclosure requirement is valid. A The proposed rule would have example, the Building and Construction balancing test must be applied, which expanded the right of access of Trades Department, AFL–CIO stated weighs the individual’s interest in employees, former employees, and their that: confidentiality against the public designated representatives beyond the interest in disclosure. Fraternal Order of In the main, the name of the employee is Log to include the Incident Report Police, 812 F.2d at 113. In evaluating the critically important to understanding and (Form 301) (61 FR 4061). OSHA government’s interest, at least two verifying recordable cases. It is often discussed the potentially conflicting factors must be considered; the purpose necessary to speak with the employee to interests involved, and explained its explore the conditions that lead to the injury to be served by disclosure of personal preliminary balancing of these interests, or illness, and this is impossible without information to individuals authorized as follows: employee names. In addition, employees and by law to receive it, and the adverse unions play an important role in assuring the effect of unauthorized public disclosure OSHA’s historical practice of allowing proper administration of the recordkeeping of such information. Id. at 117, 118. employee access to all of the information on rule, and they cannot audit an employer’s Accord, Barry v. City of New York, 712 the log permits employees and their recordkeeping performance without having F.2d 1554, 1561–5162 (2d Cir. 1983). designated representatives to be totally access to employee names, which are informed about the employer’s recordkeeping Thus, the fact that disclosure of highly necessary to verify that all properly practices, and the occupational injuries and recordable cases are actually on the log, and personal information to parties who illnesses recorded in the workplace. have need for it serves an important to verify that recorded cases are properly However, this total accessibility may infringe classified. (Ex. 15: 394, p. 35) public interest is not sufficient on an individual employee’s privacy interest. justification for a disclosure At the same time, the need to access Similarly, the American Federation of requirement in the absence of adequate individual’s Incident Records to adequately State, County and Municipal safeguards against broader public evaluate the safety and health environment of Employees, AFL–CIO stated that access. Fraternal Order of Police, 812 the establishment has been expressed. ‘‘[w]hen employees and their F.2d at 118 (‘‘It would be incompatible These two interests—the privacy interests representatives have complete access to with the concept of privacy to permit of the individual employee versus the the detailed injury and illness records, interest in access to health and safety protected information and material to be information concerning one’s own employee involvement in workplace publicly disclosed. The fact that workplace—are potentially at odds with one safety and health programs increases. protected information must be disclosed another. For injury and illness recordkeeping Worker representatives use the data on to a party who has need for it * * * purposes, OSHA has taken the position that the forms to assist in the identification does not strip the information of its an employee’s interest in access to health and of specific hazards, as well as other
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factors affecting workplace safety’’ Council express the view shared by present here other types of safeguards (Ex.15: 362, p. 7). many employers: that have been held to be adequate to The United Auto Workers (Ex. 15: There is universal support among protect against misuse of private 438) argued that the OSHA 301 incident employees and employers for the material. See Whalen, 589 U.S. at 605 reports are as valuable as the log is in communication of information about (‘‘The right to collect and use [private] aiding voluntary enforcement efforts. workplace illnesses and injuries. It also data for public purposes is typically The UAW stated: seems apparent that there is universal accompanied by a concomitant statutory opposition to the communication of personal or regulatory duty to avoid unwarranted The OSHA 101 (proposed 301) form is an information about individuals involved in disclosures.’’) See also Fraternal Order available data source on circumstances of an those incidents. There are many injury or illness. The collected data contains of Police, 812 F.2d at 118 (appropriate circumstances in the workplace where safeguards could include statutory information for prevention, and also employees have no desire for fellow indicates the effectiveness of management’s employees to know the extent, description, or sanctions for unauthorized disclosures, health and safety program. The information type of injury or illness they have incurred. security provisions to prevent on the OSHA [301] relevant to hazard The reasons for an employee’s concern about mishandling of files, coupled with identification and control should be made his or her personal privacy may vary but express regulatory prohibition on available to employee representatives on the almost always find their foundation in very disclosure, or procedures such as same basis as they are made available to strong and personal emotions. One example storage of private material in locked OSHA compliance officers. Personal data on that clearly illustrates this point would be the cabinets with automatic removal and treatment details, physician’s name, personal employee who has experienced an exposure destruction within six months); In re information on employee can be recorded on incident under the bloodborne pathogens the ‘‘other’’ side of the form and blanked out. Search Warrant (Sealed), 810 F.2d 67, standard. Most people would not want it to 72 (3d Cir. 1987) (district court order The Laborers’ Health and Safety Fund be known that they may have been exposed to HIV, let alone if they tested positive for that medical records and related (Ex. 15: 310) also emphasized the HIV. * * * In addition to the concerns about information be kept confidential except practical value of the information how this information could be used by other as disclosure was reasonably required in contained in the Form 301: individuals, employers also have very serious connection with criminal investigation). We wholeheartedly support the specific concerns about the misuse of this The degree of harm that could result language in the proposed rule allowing information by individuals or organizations from unauthorized use or disclosure of designated representatives access to the for purposes in no way related to the issue information on the Log and Incident OSHA 300 and 301 forms. In a project we of workplace health and safety (Ex. 15: 193, Report varies depending upon the administered to determine the major causes pp. 4–5). nature and sensitivity of the injury or of serious injuries and illnesses in road A number of commenters argued that illness involved. An employee might construction under a Federal Highway granting access to the Log and Incident reasonably have little to fear from Administration grant, several employers Report to employees, former employees disclosure of a garden-variety injury or would not allow access to even information illness of the kind that one might from the injured person’s 101 workers and their representatives will deter compensation equivalent form, because the employees from reporting their injuries sustain in everyday life. Cf. Wilson v. form contained other information such as the and illnesses, especially in cases Pennsylvania State Police Department, employee’s age and salary. The event involving exposure to bloodborne 1999 WL 179692 (E.D.Pa) (vision-related information contained in the 301 form is pathogens and injuries and illnesses information not as intimate as other critical in determining the hazards and involving reproductive organs (see, e.g., types of medical information, and less possible preventive measures. Exs. 15–185, 15–193, 15–238, 15–239, likely to result in harm if disclosed to Other commenters also supported the 15–305). A representative of the the public). However, there is a much proposal’s approach of broadening Middlesex Convalescent Center wrote: greater risk that social stigma, harassment and discrimination could employee access to records (see, e.g. [R]equiring employers to disclose personal result from public knowledge that one Exs. 24; 36; 15: 350, 380, 418). identifiers (which include name and occupation) will result in fewer people has, or may have, AIDS, has been the Recognition of the important purpose victim of a sexual assault, or has served by granting access to injury and reporting injuries and illnesses because employees will feel shame or embarrassment suffered an injury to a reproductive illness records does not end the for being involved in an accident. * * * organ or other intimate body part. See, analysis. The public interest that is Additionally, employees who do not want e.g. Doe v. SEPTA, 712 F.2d at 1140 served when information contained in co-workers to know their physical handicaps (AIDS); New Jersey Bell Telephone Co. the records is used to promote safety and other personal business will choose not v. NLRB, 720 F.2d 789, 790 (3d Cir. and health must be balanced against the to report accidents, including those in which 1983) (reasons given by employees for possible harm that would result from the employee is not at fault (Ex. 15: 23 absence or tardiness included colitis, (emphasis in original)). the misuse of private information. There insertion of urethral tubes, vaginal are two ways in which harm could There exist at present no mechanisms infections, scalded rectal areas, and occur. First, the information could be to protect against unwarranted heart problems). used for unauthorized purposes, such as disclosure of private information OSHA has concluded that the to harass or embarrass employees. contained in OSHA records. While disclosure of occupational injury and Second, employees and their Agency policy is that employees and illness records to employees and their representatives with access to records their representatives with access to representatives serves important public could, deliberately or inadvertently, records should treat the information policy interests. These interests support disclose private information to others contained therein as confidential except a requirement for access by employees who have no need for it. as necessary to further the purposes of and their representatives to personally Several commenters indicated the Act, the Secretary lacks statutory identifiable information for all but a concern about the unauthorized authority to enforce such a policy limited number of cases recorded on the disclosure of private material contained against employees and representatives Log, and to all information on the right- in the injury and illness records. The (e.g. 29 U.S.C. §§ 658, 659) (Act’s hand side of the Form 301. However, joint comments filed by the National enforcement mechanisms directed OSHA also concludes that prior Agency Broiler Council and the National Turkey solely at employers). Nor are there access policies may not have given
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adequate consideration to the harm employer’s incident investigation designated workplace, processing a claim for which could result from disclosure of officials, and the individual’s supervisor. workers’ compensation or insurance intimate medical information. In the Outside of these individuals, access should benefits, or carrying out the public absence of effective safeguards against be granted only after written authorization health or law enforcement functions from the injured or ill employee has been described in section 164.512 of the final unwarranted use or disclosure of private obtained. This approach would allow those information in the injury and illness individuals who have a legitimate ‘‘need to rule on Standards for Privacy of records, confidentiality must be know’’ limited access to the information (Ex.. Individually Identifiable Health preserved for particularly sensitive 15: 335). Information. OSHA believes that this provision cases. These ‘‘privacy concern cases’’ Other commenters suggested requiring listed in paragraph 1904.29 (b)(7) of the protects employee privacy to a that employee names be shielded if the reasonable degree consistent with the final rule involve diseases, such as AIDS forms are disclosed to third parties (see, and hepatitis, other illnesses if the legitimate business needs of employers e.g., Exs. 15: 374, 375). and sound public policy considerations. employee voluntarily requests OSHA agrees that confidentiality of The record does not demonstrate that confidentiality, as well as certain types injury and illness records should be of injuries, the disclosure of which routine access by the general public to maintained except for those persons personally identifiable injury and could be particularly damaging or with a legitimate need to know the embarrassing to the affected employee. illness data is necessary or useful. information. This is a logical extension Indeed, several prominent industry MSDs are not included in privacy of the agency’s position that a balancing concern cases because OSHA’s representatives stated that the OSHA log test is appropriate in determining the should not be made available to the ergonomics rule independently provides scope of access to be granted employees for access by employees and their general public. See Ex. 335 (Dow); Ex. and their representatives. Under this 15–375 (API). Furthermore, employers representatives to the names of workers test, ‘‘the fact that protected information who report work-related MSDs. (See 29 are always free to seek authorization must be disclosed to a party who has from employees to disclose their names CFR 1910.900(v)(1) and (2.) need for it* * * does not strip the The record supports this approach. in particular cases. Thus, employers information of its protection against retain a degree of flexibility to tailor For example, API recommended that disclosure to those who have no similar OSHA protect employee confidentiality their voluntary disclosure policies to need.’’ Fraternal Order of Police, 812 meet exigent circumstances. for cases involving HIV, fertility F2d at 118. problems, bloodborne pathogens, OSHA has determined that Misuse of the Records by Employees seroconversions, and impotence (Ex. 15: employees, former employees and and Their Representatives 375). OSHA agrees that employee authorized employee representatives Several commenters were concerned confidentiality should be protected in have a need for the information that about inappropriate uses of the records these and similar cases. Therefore, the justifies their access to records, once they are released to employees final rule requires that the employer including employee names, for all (see, e.g., Exs. 15: 9, 39, 102, 185, 193, withhold the employee’s name from the except privacy concern cases. While the 201, 304, 305, 317, 321, 330, 341, 346, OSHA 300 Log for each ‘‘privacy possibility exists that employees and 359, 363, 375, 389, 397, 412, 413, 423, concern case,’’ and maintain a separate their representatives with access to the 424, 431). The American Petroleum confidential list of employee names and records could disclose the information Institute stated: ‘‘API has concerns case numbers. In all other respects, the to the general public, OSHA does not about potentials for uncontrolled and final rule ensures full access to the believe that this risk is sufficient to unscrupulous use of these data for OSHA Log by employees, former justify restrictions on the use of the purposes unrelated to safety and employees, personal representatives and records by persons granted access under health—uses such as for plaintiff-lawyer authorized employee representatives. sections 1904.40 and 1904.35. As ‘‘fishing expeditions’’, in union Protections Against Broad Public Access discussed in the following section, organizing attempts, to create adverse In the proposal, OHSA noted that the strong policy and legal considerations publicity as contracts expire, or to foster access requirements were intended as a militate against placing restrictions on other special interests’’ (Ex. 15: 375). tool for employees and their employees’ and employee Several commenters stated that representatives to affect safety and representatives’ use of the injury and information requests could be used as a harassment by unions (see, e.g., Exs. 15: health conditions at the workplace, not illness information. There is also a concern that employers 9, 201, 317, 423, 424), and the as a mechanism for broad public may voluntarily grant access to OSHA Caterpillar Corporation (Ex. 15: 201) disclosure of injury and illness records to persons outside their related its labor management difficulties information. (61 FR 4048.) A number of organization, who do not need the during a recent strike (Ex. 15: 201). The commenters suggested that OSHA information for safety and health American Crystal Sugar Company (Ex. should include specific language in the purposes. To protect employee 15 363) expressed concern that ‘‘there final rule protecting employee confidentiality in these circumstances, have been instances where an employee confidentiality whenever injury and paragraph 1904.29(b)(10) requires is paid a finder’s fee to identify possible illness data are disclosed for other than employers generally to remove or shield cases for personal injury lawyers.’’ A safety or health purposes, or to persons employee names and other personally few commenters suggested methods to other than those who have a legitimate identifying information when they solve these potential misuse problems, need to know. Dow argued that: disclose the OSHA forms to persons including a requirement for all OSHA should allow an employer to other than government representatives, information requests to be made in develop a system that will protect personal employees, former employees or writing (see, e.g., Exs. 15: 163, 235, 281, identifiers and other non-safety or health authorized employee representatives. 397). Two commenters suggested related information. Further, such information should only be available for the Employers remain free to disclose requirements for the employee or specific use by an OSHA inspector who is unredacted records for purposes of employee representative to sign a pledge reviewing an employer’s logs during an evaluating a safety and health program not to misuse the information (Exs. 15: inspection, medical personnel, the or safety and health conditions at the 359, 389). For example, the Waste
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Management, Inc. Company suggested The Records Access Requirement and that other federal standards imposed that ‘‘OSHA should require the the ADA requirements for testing an employee’s individual(s) obtaining a copy of the log Several commenters alleged that a health, and for disseminating or record to certify that the information requirement that individually information about an employee’s will be maintained in confidence and identifiable injury and illness records be medical condition or history, will not be released to a third party disclosed to employees and union determined to be necessary to preserve under any circumstances under penalty representatives would conflict with the the health and safety of employees and of law. OSHA shall also promulgate confidentiality provisions of the the public. See H.R. Rep. No. 101–485 severe penalties for violation’’ (Ex. 15: Americans With Disabilities Act, 42 pt. 2, 101st Cong., 2d Sess. 74–75 389). U.S.C. §§ 12112 (d)(3)(B), (d)(4)(C) (1994 (1990), reprinted in 1990 U.S.C.C.A.N. While there may be instances where ed. and Supp. III) (ADA) (see, e.g., Exs. 356, 357 (noting, e.g. medical employees share the data with third 15: 64, 290, 304, 315, 397). surveillance requirements of standards parties who normally would not be Section 12112(d)(3)(B) of the ADA promulgated under OSH Act and allowed to access the data directly, the permits an employer to require a job Federal Mine Safety and Health Act, and stating ‘‘[t]he Committee does not final rule contains no enforceable applicant to submit to a medical intend for [the ADA] to override any restrictions on use by employees or their examination after an offer of medical standard or requirement representatives. Employees and their employment has been made but before established by Federal * * * law * * * representatives might reasonably fear commencement of employment duties, that is job-related and consistent with that they could be found personally provided that medical information business necessity’’). See also 29 CFR liable for violations of such restrictions. obtained from the examination is kept part 1630 App. p. 356. The ADA This would have a chilling effect on in a confidential medical file and not recognizes the primacy of federal safety employees’ willingness to use the disclosed except as necessary to inform and health regulations; therefore such records for safety and health purposes, supervisors, first aid and safety regulations, including mandatory OSHA since few employees would voluntarily personnel, and government officials recordkeeping requirements, pose no risk such liability. Moreover, despite the investigating compliance with the ADA. Section 12112(d)(4)(C) requires that the conflict with the ADA. Cf. Albertsons, concerns of commenters about abuse Inc. v. Kirkingburg, 527 U.S. 555, (1999) problems, OSHA has not noted any same confidentiality protection be accorded health information obtained (‘‘When Congress enacted the ADA, it significant problems of this type in the recognized that federal safety and health past. This suggests that, if such from a voluntary medical examination that is part of an employee health rules would limit application of the problems exist, they are infrequent. In ADA as a matter of law.’’) addition, as noted in the privacy program. By its terms, the ADA requires The EEOC, the agency responsible for discussion above, a prohibition on the administering the ADA, has recognized use of the data by employees or their confidentiality for information obtained from medical examinations given to both in the implementing regulations at representatives is beyond the scope of 29 CFR part 1630, and in interpretive OSHA’s enforcement authority. For prospective employees, and from medical examinations given as part of a guidelines, that the ADA yields to the these reasons, the employer may not requirements of other federal safety and require an employee, former employee voluntary employee health program. The OSHA injury and illness records are health standards. The implementing or designated employee representative regulation codified at 29 CFR 1630.15(e) to agree to limit the use of the records not derived from pre-employment or voluntary health programs. The explicitly states that an employer’s as a condition for viewing or obtaining information in the OSHA injury and compliance with another federal law or copies of records. illness records is similar to that found regulation may be a defense to a charge OSHA has added a statement to the in workers’ compensation forms, and of violating the the ADA: Log and Incident Report forms may be obtained by employers by the (e) Conflict with other Federal laws. It may indicating that these records contain same process used to record needed be a defense to a charge of discrimination information related to employee health information for workers’ compensation under this part that a challenged action is and must be used in a manner that and insurance purposes. The Equal required or necessitated by another Federal law or regulation, or that another Federal law protects the confidentiality of Employment Opportunity Commission employees to the extent possible while or regulation prohibits an action (including (EEOC) recognizes a partial exception to the provision of a particular reasonable the information is used for occupational the ADA’s strict confidentiality accommodation) that would otherwise be safety and health purposes. This requirements for medical information required by this part. statement is intended to inform regarding an employee’s occupational Interpretive guidance provided by the employees and their representatives of injury or workers’ compensation claim. EEOC further underscores this point. the potentially sensitive nature of the See EEOC Enforcement Guidance: The 1992 Technical Assistance Manual information in the OSHA records and to Workers’ Compensation and the ADA, 5 on Title I of the ADA states as follows: encourage them to maintain employee (September 3, 1996). Therefore, it is not confidentiality if compatible with the clear that the ADA applies to the OSHA 4.6 Health and Safety Requirements of safety and health uses of the injury and illness records. Other Federal or State Laws information. Encouraging parties with Even assuming that the OSHA injury The ADA recognizes employers’ access to the forms to keep the and illness records fall within the literal obligations to comply with requirements of information confidential where possible scope of the ADA’s confidentiality other laws that establish health and safety is reasonable and should not discourage provisions, it does not follow that a standards. However, the [ADA] gives greater the use of the information for safety and conflict arises. The ADA states that weight to Federal than to state or local law. health purposes. OSHA stresses, ‘‘nothing in this Act shall be construed 1. Federal Laws and Regulations however, that the statement does not to invalidate or limit the remedies, The ADA does not override health and reflect a regulatory requirement limiting rights, and procedures of any Federal safety requirements established under other the use of records by those with access law. * * *’’ 29 U.S.C. 12201(b). In Federal laws. If a standard is required by under sections 1904.35 and 1904.40. enacting the ADA, Congress was aware another Federal law, an employer must
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comply with it and does not have to show with the same access rule as proposed administrative burden could be that the standard is job related and consistent for governmental officials, RE: obtain immense, particularly, if large numbers with business necessity (emphasis added). copies of logs four hours after the of records are requested by several U.S. Equal Employment Opportunity request.’’ employees. For example, if 100 Commission, A Technical Assistance The Tennessee Valley Authority employees requested ten thousand 301 Manual on the Employment Provisions (TVA) argued that ‘‘[a]ll requests for forms, one million records would have (Title I) of the Americans With records should be made in writing and to be available. This requirement is Disabilities Act, IV–16 (1992) (Technical the information provided to the simply not administratively realistic.’’ Assistance Manual). The Technical authorized requester within five OSHA agrees that, because these records Assistance Manual also states that, working days. This provides the may involve more copying, the while medical-related information about documentation for who received the employer needs more time to produce employees must generally be kept information and reduces the burden on copies of the 301 forms. In addition, as confidential, an exception applies the employer’’ (Ex. 15: 235). Bell stated in the final rule, the employer where ‘‘[o]ther Federal laws and Atlantic Network Services, Inc. (Ex. 15: may not provide the authorized regulations * * * require disclosure of 218) recommended that ‘‘OSHA should employee representative with the relevant medical information.’’ simplify the very confusing and information on the left side of the 301 Assistance Manual at VI–12. See also differing ‘‘access’’ and ‘‘copies’’ form, so the employer needs additional Assistance Manual at VI–14–15 (actions schedule to an uniform 15 working days time to redact this information. Because taken by employers to comply with as is the requirement in 29 CFR 1910.20, the final rule only provides a right of requirements imposed under the OSH Access to Employee Exposure and access to an authorized employee Act are job related and consistent with Medical Records.’’ representative (authorized collective business necessity). For these reasons, In addition, the Caterpillar Company bargaining agent), the number of OSHA does not believe that the (Ex. 15: 201) recommended that the requests should not exceed the number mandatory employee access provisions final rule should not establish time of unions representing employees at the of the final recordkeeping rule conflict frames at all, stating that ‘‘The time establishment. Thus, the multiple with the provisions of the ADA. limit of providing access by the close of request problem envisioned by Boeing business on the next scheduled workday should not surface. In addition, OSHA Times Allowed To Provide Records is unnecessarily restrictive. expects that, in large plants such as the In its proposal, OSHA would have Noncompliance situations could be one described by Boeing, the authorized required the employer to allow the generated by simple work schedule employee representatives will ask for employee to view the 300 Log and the conflicts or other minor difficulties. The the data on a periodic basis, either Form 301 records by the end of the next access period should be stated as a monthly or quarterly, so the data business day and provide copies within reasonable time period allowing requested at one time will be limited. In seven calendar days. An employer employees and employers adequate addition, the employer must provide would have been required to provide flexibility.’’ only one free copy. If additional copies access to the 301 forms for all injuries Under the final rule, an employer are requested, the employer may charge and illnesses ‘‘in a reasonable time’’ (61 must provide a copy of the 300 Log to for the copies. FR 4061). Several commenters agreed an employee, former employee, personal with OSHA’s proposed times for representative or authorized employee Charging Employees for Copies of the providing copies of the records to representative on the business day OSHA Records employees and their representatives following the day on which an oral or The proposal also required the (see, e.g., Exs. 15: 213, 277, 359). For written request for records is received. employer to provide copies without example, Consolidated Edison (Ex. 15: Likewise, when an employee, former cost, or provide access to copying 213) stated that ‘‘[t]he time limits in the employee or personal representative facilities without charge, or allow the proposal are acceptable but [Con Ed] asks for copies of the 301 form for an employee or representative to take the recommends that a time limit of seven injury or illness to that employee, the records off site to make copies (61 FR days be included at [proposed] employer must provide a copy by the 4061). Linda Ballas (Ex. 15: 31) paragraph 1904.11(b)(5) [which end of the next business day. OSHA commented that the copies should be addressed the copying of 301 forms] finds that these are appropriate time provided at no cost to the employee. rather than the vague ‘‘reasonable time’’ frames for supplying a copy of the Several commenters stated that included in the text.’’ existing forms, which in the case of the employees who access the records A number of commenters disagreed Form 301 is a single page. The average should pay for them (see, e.g., Exs. 15: with OSHA’s proposed times for 300 Log is also only one page, although 151, 152, 179, 180, 201, 226, 317, 397, providing copies of the records (see, employers who have a larger number of 424). Atlantic Marine, Inc. stated: e.g., Exs. 15: 195, 201, 213, 218, 226, occupational injuries and illnesses will ‘‘Providing copies of records without 235, 326, 347, 369, 370, 389, 409, 423, have more than one page. cost to individuals may produce an 425, 440). These commenters suggested The final rule allows the employer undue administrative and financial a variety of times, including four hours seven business days to provide copies of burden for some employers. Although (Ex. 15: 369), 24 hours (Ex. 15: 425), two the OSHA 301 forms for all there is merit to providing information workdays (Ex. 15: 226), five working occupational injuries and illnesses that access to employees, the charging of a days (Ex. 15: 235), within seven occur at the establishment. Several fee not to exceed the actual cost for calendar days or one week (Ex. 15: 195, commenters stated that there is duplicating the documents may deter 370), 15 days to match the requirements additional burden for these large unnecessary or frivolous requests’’ (Ex. of the OSHA medical records access requests (see, e.g., Exs. 15: 172, 260, 15: 151). The United Parcel Service rule (Ex. 15: 218, 347, 409, 423), and 21 262, 265, 294, 297, 401). For example, Company (Ex. 15: 424) stated that: days (Ex. 15: 389). The International the Boeing Corporation stated that [i]f expanded access to safety and health Brotherhood of Teamsters (Ex. 15: 369) ‘‘[s]ince Boeing is a large employer with records is afforded, certainly such access suggested that ‘‘[e]mployees and their several thousand employees at several should not be at the employer’s cost. This is designated representatives be provided sites, (up to 30,000 at one site), the an unfair burden on the employer, and will
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encourage improper, harassing requests. to the State Plan regulations codified in secure Federal OSHA approval for these These risks are not alleviated by the Section 1902.3(k), 1952.4, and enhancements. alternative of permitting the employer to give 1956.10(i). The provisions of Subpart A The final rule eliminates paragraph its records to the requesting party to copy, of 29 CFR part 1952 specify the (b) of section 1904.14 of the proposed Proposed § 1904.11(b)(3)(iii), 61 Fed. Reg. at 4061, since employers often will be reluctant regulatory discretion of the State Plans rule. Proposed paragraph (b) stated that to entrust their only original copies to a in general, and section 1952.4 spells out records maintained under State Plan current or former employee. (Ex. 15: 424) the regulatory discretion of the State rules would be considered to be in Plans specifically for the recordkeeping compliance with the Federal rule. In the final rule, OSHA has regulation. OSHA has eliminated paragraph (b) as implemented the proposed provision In the final rule, OSHA has rewritten unnecessary because it is redundant to requiring employers to provide copies the text of the corresponding proposed state that the records kept under State free of charge to employees who ask for section and moved it into Subpart D of law will be acceptable; since State the records. The costs of providing the final rule. Under Section 18 of the regulations must be identical to, or more copies is a minimal expense, and OSH Act, a State Plan must require stringent than the Federal regulations, employees are more likely to access the employers in the State to make reports compliance by private sector employers data if it is without cost. In addition, to the Secretary in the same manner and with approved State laws would by allowing the employer to charge for to the same extent as if the Plan were definition constitute compliance with copies of the OSHA records would only not in effect. Final section 1904.37 the Federal regulations. Paragraph (c), serve to delay production of the records. makes clear that States with approved which deals with public sector Providing free copies for employees State Plans must promulgate new recording and reporting requirements in thus helps meet one of the major goals regulations that are substantially both comprehensive State Plans (those of this rulemaking; to improve employee identical to the final Federal rule. State covering both the private and public involvement. However, OSHA agrees Plans must have recording and reporting sector employees) and those which are that there are some circumstances where regulations that impose identical limited to the public sector (State and employers should have the option of requirements for the recordability of local government), has been reworded charging for records. After receiving an occupational injuries and illnesses and and moved to 1904.37(b)(3). initial, free copy of requested records, the manner in which they are entered. Because Federal OSHA does not an employee, former employee, or These requirements must be the same provide coverage to State and local designated representative may be for employers in all the States, whether government employees, the State-Plan charged a reasonable search and under Federal or State Plan jurisdiction, States may grant State recordkeeping copying fee for duplicate copies of the and for State and local government variances to the State and local records. However, no fee may be employers covered only through State governments under their jurisdiction. charged for an update of a previously Plans, to ensure that the occupational However, the State must obtain requested record. injury and illness data for the entire concurrence from Federal OSHA prior Section 1904.37 State Recordkeeping nation are uniform and consistent so to issuing any such variances. In Regulations that statistics that allow comparisons addition, the State-Plan States may not between the States and between grant variances to any other employers Section 1904.37 addresses the employers located in different States are and must recognize all 1904 variances consistency of the recordkeeping and created. granted by Federal OSHA. These steps reporting requirements between Federal For all of the other requirements of are necessary to ensure that the injury OSHA and those States where the Part 1904 regulations, the and illness data requirements are occupational safety and health regulations adopted by the State Plans consistent from State to State. enforcement is provided by an OSHA- may be more stringent than or Rulemaking comments on this issue approved State Plan. Currently, in 21 supplemental to the Federal regulations, were unanimous in supporting identical States and 2 territories, the State pursuant to paragraph 1952.4(b). This State and Federal regulations for government has been granted authority means that the States’ recording and recordkeeping. Multi-State employers to operate a State OSHA Plan covering reporting regulations could differ in and their representatives, such as US both the private and public (State and several ways from their Federal Part West, Lucent Technologies, AT&T, and local government) sectors under section 1904 counterparts. For example, a State the National Association of 18 of the OSH Act (see the State Plan Plan could require employers to keep Manufacturers, thought that identical section of this preamble for a listing of records for the State, even though those State regulations would simplify and these States). Two additional States employers are within an industry reduce their recordkeeping burdens currently operate programs limited in exempted by the Federal rule. A State (see, e.g., Exs. 15: 194, 272, 303, 305, scope to State and local government Plan could also require employers to 346, 348, 358, 375). employees only. State Plans, once keep additional supplementary injury OSHA understands the advantages to approved, operate under authority of and illness information, require multi-State businesses of following State law and provide programs of employers to report fatality and identical OSHA rules in both Federal standards, regulations and enforcement multiple hospitalization incidents and State Plan jurisdictions, but also which must be ‘‘at least as effective’’ as within a shorter timeframe than Federal recognizes the value of allowing the the Federal program. (State Plans must OSHA does, require other types of States to have different rules to meet the extend their coverage to State and local incidents to be reported as they occur, needs of each State, as well as the government employees, workers not or impose other requirements. While a States’ right to impose different rules as otherwise covered by Federal OSHA State Plan must assure that all employee long as the State rule is at least as regulations.) Section 1904.37 of the final participation and access rights are effective as the Federal rule. rule describes what State Plan assured, the State may provide broader Accordingly, the Part 1904 rules impose recordkeeping requirements must be access to records by employees and identical requirements where they are identical to the Federal requirements, their representatives. However, because needed to create consistent injury and which State regulations may be of the unique nature of the national illness statistics for the nation and different, and provides cross references recordkeeping program, States must allows the States to impose
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supplemental or more stringent include a schedule for a public Labor Statistics (BLS) for the region requirements where doing so will not meeting on the petition. where the establishment was located. interfere with the maintenance of —After reviewing the variance petition Petitions that stretched beyond the comprehensive and uniform national and any comments from employees regional boundary were referred to the statistics on workplace fatalities, and the public, the Assistant BLS Assistant Commissioner. These injuries and illnesses. Secretary will decide whether or not responsibilities were transferred to OSHA in 1990 (Memorandum of Section 1904.38 Variances From the the proposed recordkeeping Understanding between OSHA and BLS, Recordkeeping Rule procedures will meet the purposes of the Act, will not otherwise interfere 7/11/90) (Ex. 6), but the variance section Section 1904.38 of the final rule with the Act, and will provide the of the rule itself was not amended at explains the procedures employers must same information as the Part 1904 that time. This section of the final rule follow in those rare instances where regulations provide. If the procedures codifies the shift in responsibilities from they request that OSHA grant them a meet these criteria, the Assistant the BLS to OSHA with regard to variance or exception to the Secretary may grant the variance variances. recordkeeping rules in Part 1904. The subject to such conditions as he or she Like the former variance section of the rule contains these procedures to allow finds appropriate. rule, the final rule does not specifically an employer who wishes to maintain —If the Assistant Secretary grants the note that the states operating OSHA- records in a manner that is different variance petition, OSHA will publish approved state plans are not permitted from the approach required by the rules a notice in the Federal Register to to grant recordkeeping variances. in Part 1904 to petition the Assistant announce the variance. The notice Paragraph (b) of former section 1952.4, Secretary. Section 1904.8 allows the will include the practices the variance OSHA’s rule governing the operation of employer to apply to the Assistant allows, any conditions that apply, and the State plans, prohibited the states Secretary for OSHA and request a Part the reasons for allowing the variance. from granting variances, and paragraph 1904 variance if he or she can show that (c) of that rule required the State plans The final rule makes clear that the the alternative recordkeeping system: (1) to recognize any Federal recordkeeping employer may not use the proposed Collects the same information as this variances. The same procedures recordkeeping procedures while the Part requires; (2) Meets the purposes of continue to apply to variances under Assistant Secretary is processing the the Act; and (3) Does not interfere with section 1904.37 and section 1952.4 of the administration of the Act. variance petition and must wait until this final rule. OSHA has not included The variance petition must include the variance is approved. The rule also the provisions from these two sections several items, namely the employer’s provides that, if the Assistant Secretary in the variance sections of this name and address; a list of the State(s) denies the petition, the employer will recordkeeping rule, because doing so where the variance would be used; the receive notice of the denial within a would be repetitive. addresses of the business establishments reasonable time and establishes that a The final rule adds several provisions involved; a description of why the variance petition has no effect on the to those of the former rule. They include employer is seeking a variance; a citation and penalty for a citation that (1) the identification of petitioning description of the different has been previously issued by OSHA employers’ pending citations in State recordkeeping procedures the employer and that the Assistant Secretary may plan states, (2) the discretion given to is proposing to use; a description of how elect not to review a variance petition if OSHA not to consider a petition if a the employer’s proposed procedures it includes an element which has been citation on the same subject matter is will collect the same information as cited and the citation is still under pending, (3) the clarification that OSHA would be collected by the Part 1904 review by a court, an Administrative may provide additional notice via the requirements and achieve the purpose Law Judge (ALJ), or the OSH Review Federal Register and opportunity for of the Act; and a statement that the Commission. comment, (4) the clarification that employer has informed its employees of The final rule also states that the variances have only prospective effect, the petition by giving them or their Assistant Secretary may revoke a (5) the opportunity of employees and authorized representative a copy of the variance at a later date if the Assistant their representatives to participate in petition and by posting a statement Secretary has good cause to do so, and revocation procedures, and (6) the summarizing the petition in the same that the procedures for revoking a voiding of all previous variances and way notices are posted under paragraph variance will follow the same process as exceptions. 1903.2(a). OSHA uses for reviewing variance Variance procedures were not The final rule the describes how the petitions. Except in cases of willfulness discussed in the Recordkeeping Assistant Secretary will handle the or where necessary for public safety, the Guidelines (Ex. 2), nor have there been variance petition by taking the following Assistant Secretary will: Notify the any letters of interpretations or OSHRC steps: employer in writing of the facts or or court decisions on recordkeeping —The Assistant Secretary will offer conduct that may warrant revocation of variances. As noted in the proposal, at employees and their authorized a variance and provide the employer, 61 FR 4039, only one recordkeeping representatives an opportunity to employees, and authorized employee variance has ever been granted by comment on the variance petition. representatives with an opportunity to OSHA. This variance was granted to The employees and their authorized participate in the revocation procedures. AT&T and subsequently expanded to its representatives will be allowed to The final rule differs somewhat from Bell subsidiaries to enable them to submit written data, views, and the variance section of the former rule. centralize records maintenance for arguments about the petition. The text of the previous rule gave the workers in the field. —The Assistant Secretary may allow the Bureau of Labor Statistics authority to The final rule does not adopt the public to comment on the variance grant, deny, and revoke recordkeeping approach to variances proposed by petition by publishing the petition in variances and exceptions. Under the OSHA in 1996 (see section 1904.15 of the Federal Register. If the petition is former rule, applicants were required to the proposal). OSHA proposed to published, the notice will establish a petition the Regional Commissioner of eliminate the variance and exception public comment period and may the Department of Labor’s Bureau of procedure from the recordkeeping rules
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altogether and instead to require all recordkeeping forms. Because these believes that it is important to begin variances and exceptions to the changes have been made to other with a ‘‘clean slate’’ when the final recordkeeping rule to be processed sections of the final rule, there should recordkeeping rule goes into effect. under OSHA’s general variance be little demand for variances or Employers with existing variances can regulations, which are codified at 29 exceptions. As OSHA noted in the re-petition the agency if the final rule CFR Part 1905. As stated in the proposal (61 FR 4039) in relation to the does not address their needs. Another proposal, OSHA believed that this AT&T variance, ‘‘[t]he centralization of addition to the final rule makes explicit change would streamline the final records provision contained in this that OSHA can provide additional recordkeeping rule and eliminate proposal [and subsequently adopted in public notice via the Federal Register duplicate procedures for obtaining the final rule] will eliminate the and may offer additional opportunity for variances. OSHA also proposed to continued need for this variance.’’ public comment. A final addition amend paragraph 1952.4(c) to make Similarly, the changes in paragraphs recognizes and makes clear that clear that employers were required to 1904.3(e) and (f) of the final rule that employees can participate in variance obtain all recordkeeping variances or permit substitute forms and revocation proceedings. exceptions from OSHA instead of from computerization of recordkeeping by the BLS. employers, combined with the changes Subpart E. Reporting Fatality, Injury OSHA received very few comments in paragraph 1904.30(c) that allow for and Illness Information to the on the proposed changes to the variance recordkeeping at a central location will Government procedures. Some commenters accommodate the Air Transport Subpart E of this final rule approved the proposed approach but Association’s request that OSHA consolidates those sections of the rule did not comment on its merits (see, e.g., ‘‘permit airline companies to keep that require employers to give Exs. 15: 133, 136, 137, 141, 224, 266, records according to location or division recordkeeping information to the 278). The International Dairy Foods * * * without the need to seek and government. In the proposed rule, these Association (IDFA) supported the acquire variances’’ (Ex. 15: 378). Under sections were not grouped together. change if ‘‘it is indeed * * * a the final rule, companies are still OSHA believes that grouping these duplicative section’’ and ‘‘no significant required to summarize their injury and sections into one Subpart improves the change will occur by deleting the illness records for individual overall organization of the rule and will provision’’ (Ex. 15: 203). Another establishments, but may also produce make it easier for employers to find the commenter stated that ‘‘no employer records for separate administrative units information when needed. The four should be exempt from record keeping if they wish to do so. Centralized and sections of this subpart of the final rule and I cannot imagine what kind of computerized recordkeeping systems are: variance for record keeping exceptions make this a relatively simple task when (a) Section 1904.39, which requires could exist. I am requesting that this compared to paper-driven and employers to report fatality and proposal be removed from the standard’’ decentralized systems. multiple hospitalization incidents to (Ex. 15: 62). The Air Transport The final changes to the variance OSHA. Association urged ‘‘OSHA * * * [to] section of the former rule are minor. The (b) Section 1904.40, which requires an permit [airline] companies to keep primary change is to make clear that employer to provide his or her records according to location or division OSHA, rather than the BLS, has the occupational illness and injury records * * * and without the need to seek and responsibility for granting to a government inspector during the acquire variances, so long as records can recordkeeping variances or exceptions. course of a safety and health inspection. be retrieved in a reasonable time for The other changes reflected in the final (c) Section 1904.41, which requires OSHA oversight purposes’’ (Ex. 15: rule follow from the proposed rule and employers to send their occupational 378). are intended to add several provisions illness and injury records to OSHA OSHA has decided, after further from OSHA’s general variance when the Agency sends a written consideration, to continue to include a procedures in Part 1905. For example, request asking for specific types of specific recordkeeping variance section paragraph (e) of section 1904.38 of the information. in the final rule, and not to require final rule is a modification of (d) Section 1904.42, which requires employers who wish a recordkeeping § 1905.11(b)(8), and paragraph (i) of this employers to send their occupational variance or exception to follow the more section of the final rule derives from illness and injury records to the Bureau rigorous procedures in 29 CFR part section 1905.5. The objective of this of Labor Statistics (BLS) when the BLS 1905. The procedures in Part 1905, paragraph is to give OSHA discretionary sends a survey form asking for which were developed for rules issued authority to decline to act on a petition information from these records. under sections 6 and 16 of the OSH Act, where the petitioner has a pending Each of these sections, and the record may not be appropriate for rules issued citation. OSHA concludes that it would evidence pertaining to them, is under section 8 of the Act, such as this not be appropriate to consider granting discussed below. recordkeeping rule. a recordkeeping variance to an employer Section 1904.39 Reporting Fatality or The final rule thus retains a section who has a pending recordkeeping Multiple Hospitalization Incidents to on variance procedures for the violation before OSHRC or a State OSHA recordkeeping rule. OSHA believes that agency. few variances or exceptions will be Paragraph (i) of the final rule supports Paragraph (a) of section 1904.39 of the granted under the variance procedures paragraph (c)(7) from this same section final rule requires an employer to report of the final rule because other because it provides a mechanism for work-related events or exposures provisions of the final rule already giving OSHA notice of a citation involving fatalities or the in-patient reflect many of the alternative pending before a state agency. Paragraph hospitalization of three or more recordkeeping procedures that (i) also clarifies that variances only employees to OSHA. The final rule employers have asked to use over the apply to future events, not to past requires the employer, within 8 hours years, such as electronic storage and practices. Paragraph (j) of section after the death of any employee from a transmission of data, centralized record 1904.38 of the final rule nullifies all work-related incident or the in-patient maintenance, and the use of alternative prior variances and exceptions. OSHA hospitalization of three or more
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employees as a result of a work-related rule using the same plain-language made orally to a ‘‘live’’ person. The incident, to orally report the fatality/ question-and-answer format that is used changes made to the final rule are multiple hospitalization by telephone or throughout the rest of the rule. Second, consistent with those proposed, except in person to the Area Office of the this section clarifies that the report an that the proposal would have required Occupational Safety and Health employer makes to OSHA on a employers to report to the Area Office Administration (OSHA), or to OSHA via workplace fatality or multiple either by telephone or in person during the OSHA toll-free central telephone hospitalization incident must be an oral normal business hours and to limit use number, 1–800–321–6742. report. As the regulatory text makes of the toll-free 800 number to non- The final rule makes clear in clear, the employer must make such business hours. paragraph 1904.39(b)(1) that an reports to OSHA by telephone (either to A few commenters suggested ways for employer may not report the incident by the nearest Area Office or to the toll-free OSHA to make the 800 number more leaving a message on OSHA’s answering 800 number) or in person. Third, the available to employers and to ensure machine, faxing the Area Office, or employer may not merely leave a that reports are made orally (see, e.g., sending an e-mail, but may report the message at the OSHA Area Office; Exs. 15: 9, 154, 203, 229, 238, 239, 389). fatality or multiple hospitalization instead, the employer must actually For example, the National Pest Control incident using the OSHA 800 number. speak to an OSHA representative. Association suggested that: The employer is required by paragraph Fourth, this section of the rule lists [t]he agency print OSHA’s emergency toll 1904.39(b)(2) to report several items of OSHA’s 800 number for the free number on the OSHA 300 and 301 forms information for each fatality or multiple convenience of employers and to allow and explain that employers are to call the hospitalization incident: the flexibility in the event that the employer number in the case of a fatality or multiple establishment name, the location of the has difficulty reaching the OSHA Area hospitalization during non-business hours. incident, the time of the incident, the Office. Fifth, this section eliminates the We would also urge OSHA to define ‘‘non- number of fatalities or hospitalized former requirement that employers business’’ hours both in the regulatory text employees, the names of any injured report fatalities or multiple and on the forms (Ex. 15: 229). employees, the employer’s contact hospitalizations that result from an Waste Management, Inc. (WMI) (Ex. person and his or her phone number, accident on a commercial or public 15: 389) recommended full reliance on and a brief description of the incident. transportation system, such as an the 800 number, proposing that: As stipulated in paragraph airplane accident or one that occurs in [t]he 800 number be used at all times. A 1904.39(b)(3), the final rule does not a motor vehicle accident on a public recent event entailing an attempt to report to require an employer to call OSHA to highway or street (except for those the local area office illustrates the difficulty report a fatality or multiple occurring in a construction work zone, in complying with this proposal. The caller hospitalization incident if it involves a which must still be reported). was away from the office out-of-town and motor vehicle accident that occurs on a OSHA’s proposal would have made attempted to rely on information obtained public street or highway and does not three changes to the former rule: (1) it from the local telephone information service. occur in a construction work zone. would have clarified the need for No local OSHA telephone number was Employers are also not required to employers to make oral reports, (2) it identified as the local emergency number. The city had multiple area offices and report a commercial airplane, train, would have included OSHA’s 800 telephone numbers without adequate subway or bus accident (paragraph number in the text of the regulation, and identification at the telephone company 1904.39(b)(4)). However, these injuries (3) it would have required a site- information desk. The local number which must still be recorded on the employer’s controlling employer at a major was finally identified as the local OSHA OSHA 300 and 301 forms, if the construction site to report a multiple emergency number could not be accessed employer is required to keep such hospitalization incident if the injured from outside the calling area even if the forms. Because employers are often workers were working at that site under caller was willing to pay the charges. After unsure about whether they must report the control of that employer. numerous calls and involvement of several a fatality caused by a heart attack at A number of commenters supported levels of telephone management, the normal business day was completed and so the 800 work, the final rule stipulates, at all three of these proposed changes (see, number in Washington was called. The use paragraph 1904.39(b)(5), that such heart e.g., Exs. 15: 133, 136, 137, 141, 204, of a single, nationwide 800 number has attacks must be reported, and states that 224, 266, 278, 369, 378, 429). However, worked for EPA and other agencies. WMI the local OSHA Area Office director will many commenters discussed the believes it would simplify reporting decide whether to investigate the changes OSHA proposed, raised requirements and ensure more timely incident, depending on the additional issues not raised in the reporting. circumstances of the heart attack. proposal, and made various suggestions Houston Lighting and Power (Ex. 15: Paragraph 1904.39(b)(6) of the final for the final rule. Comments are 239) suggested that OSHA allow rule clarifies that the employer is not discussed below for each of the employers to report either to the local required to report a fatality or proposed changes. OSHA Office or to the 800 number: hospitalization that occurs more than Making oral reports of fatalities or thirty (30) days after an incident, and multiple hospitalization incidents and [r]eporting of an incident either to the the OSHA 800 number. The former rule nearest Area Office or through the use of the paragraph 1904.39(b)(7) states that, if 1–800 number should be available the employer does not learn about a required an employer to ‘‘orally report’’ alternatives to the reporting requirement. The reportable incident when it occurs, the fatality or multiple hospitalization proposal limits when the 1–800 number may employer must make the report within incidents to OSHA by telephone or in be used. In many cases the person reporting 8 hours of the time the incident is person, although the rule did not the incident may not be at the incident site. reported to the employer or to any of the specify that messages left on the Area It is much more efficient to use a number that employer’s agents or employees. Office answering machine or sent by e- does not change from location to location Section 1904.39 of the final rule mail would not suffice. Since the than to attempt to identify each area office. includes several changes from the purpose of this notification is to alert Tri/Mark Corporation (Ex. 15: 238) proposed rule and section 1904.17 of OSHA to the occurrence of an accident asked about reporting using fax or e- the former rule. First, OSHA has that may warrant immediate mail: ‘‘If a live person is available to rewritten the requirements of the former investigation, such notification must be answer the 800 number, there is no
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problem with this item. Could a fax or defined in the proposed rule as a [r]eporting workplace fatalities or multiple e-mail message be an appropriate construction firm with control of a employee hospitalization within 8 hours is notification tool?’’ project valued at $1,000,000 or more, unrealistic and unreasonable because the It is essential for OSHA to speak the proposed rule would have applied employer’s first concern should be to the promptly to any employer whose employee(s) injured or killed, his/her family only to those employers. Under the or damage to the building when others may employee(s) have experienced a fatality former rule, employers only needed to be in imminent danger (e.g., a fire in a health or multiple hospitalization incident to report if three of their own employees care facility may require evacuating and determine whether the Agency needs to were hospitalized. finding alternative placement for frail, begin an investigation. Therefore, the A number of commenters opposed the elderly residents). AHCA recommends that final rule does not permit employers proposed change (see, e.g., Exs. 25, 15: OSHA revise the regulation by extending the merely to leave a message on an 9, 126, 199, 289, 305, 312, 335, 346, 356, time period for reporting fatalities or answering machine, send a fax, or 389, 406, 420). Several commenters hospitalization of 3 or more employees to transmit an e-mail message. None of argued that the provision would be ‘‘within 48 hours.’’ these options allows an Agency unworkable because individual After considering these comments, representative to interact with the employers often do not know about the and reviewing the comments received employer to clarify the particulars of the post-accident condition of the injured during the comment period for the April catastrophic incident. Additionally, if employees of other employers (see, e.g., 1, 1994 rulemaking on this issue (59 FR the Area Office were closed for the Exs. 15: 126, 346). Other commenters 15594–15600), OSHA has decided to weekend, a holiday, or for some other objected to placing the burden of such continue the 8-hour requirement. The reason, OSHA might not learn of the reporting on the general contractor on a 1994 rulemaking noted the support of incident for several days if electronic or construction site rather than on the many commenters for the 8-hour rule, as facsimile transmission were permitted. individual employers of the affected well as support for 4-hours, 24 hours, Paragraph 1904.39(b)(1) of the final rule employees (see, e.g., Exs. 15: 312, 356). and 48 hours. As OSHA discussed in makes this clear. Still other commenters noted that, since the April 1, 1994 rulemaking, prompt As noted, OSHA allows the employer the term ‘‘site-controlling employer’’ is reporting enables OSHA to inspect the to report a fatality or multiple defined by OSHA as an employer in the site of the incident and interview hospitalization incident by speaking to construction industry, this provision personnel while their recollections are an OSHA representative at the local would have no apparent application in immediate, fresh and untainted by other Area Office either on the phone or in multi-employer settings outside the events, thus providing more timely and person, or by using the 800 number. construction industry (see, e.g., Exs. 15: accurate information about the possible This policy gives the employer 199, 335, 346). causes of the incident. The 8-hour flexibility to report using whatever After considering the issue further, reporting time also makes it more likely mechanism is most convenient. The OSHA agrees that it would be that the incident site will be employer may use whatever method he impractical to impose on one employer undisturbed, affording the investigating or she chooses, at any time, as long as a duty to report cases of multiple compliance officer a better view of the he or she is able to speak in person to hospitalizations of employees who work worksite as it appeared at the time of the an OSHA representative or the 800 for other employers. Although such a incident. Further, from its enforcement number operator. Therefore, there is no reporting requirement would provide experience, OSHA is not aware that need to define business hours or OSHA with information that the Agency employers have had difficulty otherwise add additional information could use to inspect some incidents that complying with the 8-hour reporting about when to use the 800 number; it is it might otherwise not know about, requirement. always an acceptable option for OSHA believes that the fatality and Motor vehicle and public complying with this reporting catastrophe provisions of the final rule transportation accidents. Several requirement. will capture most such incidents. commenters recommended that OSHA This final rule also includes the 800 Accordingly, OSHA has not included not require employers to report to number in the text of the regulation. this proposed provision in the final rule. OSHA fatalities and multiple OSHA has decided to include the Eight hours to report. A number of hospitalization catastrophes caused by number in the regulatory text at this commenters asked OSHA to extend the public transportation accidents and time to provide an easy reference for 8-hour period allowed for employers to motor vehicle accidents (see, e.g., Exs. employers. OSHA will also continue to report a fatality or a multiple 33, 15: 176, 199, 231, 272, 273, 301, 303, include the 800 number in any hospitalization incident to OSHA. Most 375). The comments of NYNEX (Ex. 15: interpretive materials, guidelines or of the commenters who believe that this 199) are typical: outreach materials that it publishes to interval is too short recommended a 24- help employers comply with the or 48-hour reporting time (see, e.g., Exs. [t]he primary purpose of this section is to reporting requirement. 33, 15: 35, 37, 176, 203, 218, 229, 231, provide OSHA with timely information Reporting by a site-controlling 273, 301, 335, 341, 423, 425). For necessary to make a determination whether employer at a major construction site. example, the International Dairy Foods or not to investigate the scene of an incident. To NYNEX’s knowledge, OSHA has not The proposed rule would have required Association (IDFA) (Ex. 15: 203) investigated public transportation accidents a ‘‘site controlling employer or recommended that ‘‘the reporting period or motor vehicle accidents occurring on designee’’ to report a case to OSHA ‘‘if be extended from 8 hours to 24 hours public streets or highways. In order to reduce no more than two employees of a single after the event. We feel this is unnecessary costs for both employers and employer were hospitalized but, appropriate because the resultant OSHA, NYNEX recommends that fatalities collectively, three or more workers were devastation in this type of situation and multiple hospitalizations resulting from hospitalized as in-patients.’’ This would clearly overshadow the need to these types of accidents be exempt from the provision was designed to capture those inform OSHA of an event that, with all reporting requirement. cases where three or more employees of due respect, could not be remedied by OSHA agrees with these commenters different employers were injured and reporting it within 8 hours or less.’’ The that there is no need for an employer to hospitalized in a single incident. American Health Care Association report a fatality or multiple Because a site-controlling employer was (AHCA) (Ex. 15: 341) stated: hospitalization incident when OSHA is
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clearly not going to make an proposed rule. The National Pest later receives treatment after the true investigation. When a worker is killed Control Association (NPCA) (Ex. 15: nature and extent of the injury becomes or injured in a motor vehicle accident 229) asked OSHA to allow for a longer known. At the time of the incident, on a public highway or street, OSHA is reporting time in those rare cases where when reporting is most useful, the only likely to investigate the incident if the owner of a small business was employer is unlikely to know the details it occurred in a highway construction himself or herself incapacitated in the about the treatment that the worker is zone. Likewise, when a worker is killed accident, suggesting that: receiving (e.g., observation only or or injured in an airplane crash, a train [l]anguage be included in the rule revisions medical treatment). However, the wreck, or a subway accident, OSHA to provide for additional time to report employer will probably know that the does not investigate, and there is thus fatalities and multiple hospitalizations if the employee has been admitted to the no need for the employer to report the employer is hospitalized or otherwise hospital as an inpatient. incident to OSHA. The text of incapacitated. * * * Typically, pest control The United Parcel Service (UPS) (Ex. paragraphs 1904.39(b)(3) and (4) of the companies are very small operations. Many 15: 424) suggested that the 8-hour time final rule clarifies that an employer is employ five or less employees. Often times period for reporting apply only when a not required to report these incidents to the business owner is out in the field as much as the employees. So, let’s say an higher ranking official of the company OSHA. These incidents are normally employer is hospitalized during a work- learns of the fatality or catastrophe, investigated by other agencies, related incident that also claimed the life of stating: including local transit authorities, local an employee, who happened to be the lone [U]PS supports this proposal, with one or State police, State transportation employee. Can the employer really be modification: the provision that the eight- officials, and the U.S. Department of expected to report the fatality within eight hour limit begins to run on notice to an Transportation. hours? In most instances the eight hour employee or agent is over broad. It may However, although there is no need to requirement is rather reasonable, however, in happen that workers who learn of the death report these incidents to OSHA under this circumstance it is not. NPCA asks that or hospitalization of a co-worker do not the 8-hour reporting requirement, any the agency consider adding language notify the employer in sufficient time to fatalities and hospitalizations caused by allowing small employers who are enable the manager in charge of contacting hospitalized additional time to report a OSHA to meet the deadline. The better rule, motor vehicle accidents, as well as multiple hospitalization or fatality. commercial or public transportation therefore, is to require OSHA modification accidents, are recordable if they meet OSHA has decided that there is no within eight hours of the incident’s being OSHA’s recordability criteria. These need to include language to address this reported to a supervisor, manager, or company official. This allowance is cases should be captured by the very rare occurrence. If such an unfortunate event were to occur, OSHA particularly necessary for incidents occurring Nation’s occupational fatality and injury away from the work site. statistics and be included on the would certainly allow a certain amount employer’s injury and illness forms. The of leeway for the employer or a The issue of who within the company statistics need to be complete, so that representative to report the case. The must learn of the incident before the OSHA, BLS, and the public can see OSHA inspector can, for good cause, reporting deadline was also discussed in where and how employees are being provide the employer with reasonable the 1994 rulemaking [59 FR 15597]. As made ill, injured and killed. relief from citation and penalty for in the former rule, the final rule requires Accordingly, the final rule includes a failing to report the incident within 8 reporting within 8 hours of the time any sentence clarifying that employers are hours, especially if the employer reports agent or employee of the employer still required to record work-related it as soon as possible. becomes aware of the incident. It is the fatalities and injuries that occur as a Bell Atlantic (Ex. 15: 218) and the employer’s responsibility to ensure that result of public transportation accidents Dow Chemical Company (Ex. 15: 335) appropriate instructions and procedures and injuries. recommended that OSHA include are in place so that corporate officers, Although commenters are correct that additional provisions for employees managers, supervisors, medical/health OSHA only rarely investigates motor who are admitted to the hospital for personnel, safety officers, receptionists, vehicle accidents, the Agency does observation only. Bell Atlantic’s switchboard personnel, and other investigate motor vehicle accidents that comments were: ‘‘Bell Atlantic also employees or agents of the company occur at street or highway construction recommends that the hospitalization who learn of employee deaths or sites. Such accidents are of concern to requirement [for reporting multiple multiple hospitalizations know that the the Agency, and OSHA seeks to learn hospitalizations] be limited to those company must make a timely report to new ways to prevent these accidents workers that are hospitalized overnight OSHA. for treatment. The current proposal does and protect employees who are exposed Section 1904.40 Providing Records to to them. For example, OSHA is not address hospitalization for Government Representatives currently participating in a Local observation, only that they are non- Emphasis Program in the State of New recordable.’’ Under the final rule, employers must Jersey that is designed to protect OSHA disagrees with these provide a complete copy of any records highway construction workers who are comments, as it did when similar required by Part 1904 to an authorized exposed to traffic hazards while comments were submitted to the record government representative, including performing construction work. in the 1994 rulemaking on this the Form 300 (Log), the Form Therefore, the final rule provides provision [59 FR 15596–15597]. If three 300A(Summary), the confidential listing provisions that require an employer to or more workers are hospitalized of privacy concern cases along with the report a fatality or multiple overnight, whether for treatment or names of the injured or ill privacy case hospitalization incident that occurs in a observation, the accident is clearly of a workers, and the Form 301 (Incident construction zone on a public highway catastrophic nature, and OSHA needs to Report), when the representative asks or street. learn about it promptly. Additionally, for the records during a workplace Other issues related to the reporting of the inpatient distinction provides an safety and health inspection. This fatalities and multiple hospitalization easy-to-understand trigger for reporting. requirement is unchanged from the incidents. Commenters also raised In many instances, a patient who is corresponding requirement in OSHA’s several issues not addressed in the admitted for observation as an inpatient former recordkeeping rule. However, the
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former rule combined the requirements of the Act, and by representatives of the government inspector could obtain the governing both government inspectors’ Secretary of Health, Education, and Welfare information promptly. Fourth, the and employers’ rights of access to the during any investigation under section 20(b) proposed rule would have required the records into a single section, section of the Act, or by any representative of a State employer to send Part 1904 information accorded jurisdiction for occupational safety 1904.7 ‘‘Access to Records.’’ The final and health inspections or for statistical to OSHA within 21 days of the date on rule separates the two. It places the compilation under sections 18 and 24 of the which a written request was received requirements governing access to the Act. from the Agency. This time limit for records by government inspectors in mailed survey forms was established in The proposal. The proposed Subpart E, along with other provisions section 1904.17 of the former rule and regulation was consistent with OSHA’s requiring employers to submit their is carried forward in this final rule at former recordkeeping regulation in that occupational injury and illness records section 1904.40. to the government or to provide it continued to require employers to The proposal also requested comment government personnel access to them. provide government representatives on situations where the 4-hour Provisions for employee access to with access to the entire OSHA injury requirement might be infeasible and records are now in section 1904.35, and illness Log and Summary (Forms posed several questions for the public to Employee Involvement, in Subpart D of 300 and 300A) and OSHA Incident consider: this final rule. Record (Form 301). Proposed paragraph 1904.11(a), ‘‘Access to Records,’’ read as OSHA solicits input on these time The final regulatory text of paragraph limitations. Are they reasonable? Should they (a) of section 1904.40 requires an follows: be shortened or extended? Should the employer to provide an authorized Government Representatives. Each requirement be restricted to business hours, government representative with records employer shall provide, upon a request made and if so, to the business hours of the kept under Part 1904 within four in person or in writing, copies of the OSHA establishment to which the records pertain or business hours. As stated in paragraph Forms 300 and 301 or equivalents, and year- the establishment where the records are maintained? 1904.40(b)(1), the authorized end summaries for their own employees, and injury and illness records for ‘‘subcontractor government representatives who have a Many commenters agreed with OSHA employees’’ as required under this Part to that government representatives should right to obtain the Part 1904 records are any authorized representative of the a representative of the Secretary of Secretary of Labor or Secretary of Health and have access to the records themselves Labor conducting an inspection or Human Services or to any authorized (see, e.g., Exs. 15: 78, 163, 218, 359, 369, investigation under the Act, a representative of a State accorded 405). For example, Alliant Techsystems representative of the Secretary of Health jurisdiction for occupational safety and remarked ‘‘[c]opies of this data should and Human Services (including the health for the purposes of carrying out the be given to OSHA personnel’’ (Ex. 15: National Institute for Occupational Act. 78). A number of commenters agreed Safety and Health (NIOSH) conducting (1) When the request is made in person, the that OSHA personnel should have information must be provided in hard copy an investigation under Section 20(b) of access to the OSHA 301 records, even (paper printout) within 4 hours. If the though they did not think that the Act, or a representative of a State information is being transmitted to the agency responsible for administering a establishment from some other location, employees and their representatives State plan approved under section 18 of using telefax or other electronic transmission, should have access to the Form 301 (see, the Act. The government’s right to ask the employer may provide a copy to the e.g., Exs. 33, 15: 1, 39, 76, 82, 83, 159, for such records is limited by the government representative present at the 183, 185, 193, 226, 330, 335, 338, 359, jurisdiction of that Agency. For establishment or to the government 373, 383, 385, 389, 399, 409, 423). For example, a representative of an OSHA representative’s office. example, the American Meat Institute approved State plan could only ask for (2) When the request is made in writing, (AMI) (Ex. 15: 330) ‘‘[b]elieves that it is the information must be provided within 21 the records when visiting an imperative that personal identifiers be days of receipt of the written request, unless explicitly excluded from information establishment within that state. the Secretary requests otherwise. The final rule allows the employer to that would be readily available to take into account difficulties that may The proposal thus would have anyone, with the single exception of an be encountered if the records are kept at continued to combine the records access interested government regulator.’’ The a location in a different time zone from provisions for government personnel Texas Chemical Council (Ex. 15: 159) the establishment where the government with the access provisions for argued: ‘‘[L]ogs with employees’’ names representative has asked for the records. employees, former employees and should only be accessed by selected If the employer maintains the records at employee representatives. The proposed individuals (i.e., OSHA inspectors, a location in a different time zone, rule would have modified the former medical personnel, etc.). Posting or OSHA will use the business hours of the rule in several ways, however (61 FR viewing of OSHA 300 log or 301 reports establishment at which the records are 4038). First, it would have required the without names should be the avenue for located when calculating the deadline, employer to provide copies of the forms, employees to access information.’’ as permitted by paragraph 1904.40(b)(2). while the former rule simply required Other commenters disagreed with one The former rule. Paragraph 1904.7(a) the employer to provide records for or more of the proposed access of the former OSHA recordkeeping rule inspection and copying. Second, the provisions (see, e.g., Exs. 25, 27, 15: 13, required employers to provide proposal would have required the 22, 39, 60, 82, 100, 102, 105, 111, 117, authorized government representatives employer to produce the records within 119, 124, 139, 142, 154, 170, 174, 181, with access to the complete Form 200, 4 hours, while the former rule did not 182, 183, 193, 215, 239, 258, 277, 294, without the removal of any information specify any time period. Third, the 297, 305, 313, 315, 317, 318, 346, 347, (unredacted). That paragraph read as proposed rule would have allowed an 352, 353, 359, 375, 378, 390, 392. 393, follows: employer either to provide the records 395, 397, 399, 409, 425, 430, 440.) These at the inspection location, or to fax the commenters raised a wide range of Each employer shall provide, upon request, records provided for in §§ 1904.2, 1904.4, records to the government inspector’s issues. These included the right of and 1904.5, for inspection and copying by home office. This would allow OSHA inspectors to access the records; any representative of the Secretary of Labor employers to keep their records at a employers’ Fourth Amendment rights; for the purpose of carrying out the provisions centralized location as long as the the way the government handles
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information in its possession; employee are not ‘‘unreasonable’’ per se. See e.g., concluding that the facts of that case privacy concerns; and the proposed California Bankers Ass’n v. Shultz, 416 were not comparable to those reviewed requirement to produce the records U.S. 21, 67 (1974) (upholding reporting in California Bankers). within 4 hours. On the right of OSHA regulation issued under the Bank Given that some warrantless and inspectors to access the records, for Secrecy Act of 1970 that did not provide subpoena-less searches during an OSHA example, the Douglas Battery for subpoenas or warrants where the inspection may be reasonable while Manufacturing Company (Ex. 15: 82) ‘‘information was sufficiently described others may not, depending on the stated: and limited in nature and sufficiently circumstances of the individual inspection, OSHA has decided not to [n]one of these records should be * * * used related to a tenable Congressional to conduct an OSHA compliance inspection. determination’’ that the information include a subpoena or warrant Such action would be in direct conflict with would have a high degree of usefulness enforcement mechanism in the text of the purpose of the OSHA log which is to in criminal, tax, or regulatory the rule. However, OSHA will continue track injury and illness trends so corrective investigations or proceedings). to enforce the rule within the action can be taken by the employer. In any event, the text of the rule is parameters of applicable court OSHA does not agree with this view, silent as to the enforcement mechanism decisions. because government inspectors OSHA will use in what OSHA hopes Privacy of medical records. A number conducting workplace safety and health will be the rare case in which an of commenters questioned the right of inspections need these records to carry employer does not provide a copy of the the government to access information in out the purposes of the Act, i.e., to records on request. OSHA may proceed the records because of privacy concerns identify hazards that may harm the by applying for a warrant, or by about medical records (see, e.g., Exs. 27, employees working there. The Part 1904 administrative subpoena, or by citation 15: 13, 22, 39, 60, 82, 117, 119, 142, 183, records provide information about how where doing so is consistent with the 359, 378, 392, 399.) The National workers are injured or made ill at work Fourth Amendment. OSHA notes that Association of Manufacturers (NAM) and help guide the inspector to the employers have a Fourth Amendment (Ex. 15: 142) stated that ‘‘[t]he privacy hazards in the workplace that are right to require a warrant before an interference as proposed that opens up medical records to most anyone is causing injury and illness. Although OSHA representative may physically inconceivable, and should be these records may not cover all hazards enter a business establishment for an eliminated.’’ The National Oilseed that exist in a particular workplace, they inspection. The totality of circumstances Processors Association (Ex. 15: 119) help the inspector to identify hazards surrounding a warrantless or recommended: more completely during an inspection. Fourth amendment issues. A number ‘‘subpoena-less’’ administrative [t]he issue of privacy is an important one that of commenters argued that the investigation or investigation program should be handled carefully and with regulatory requirement to provide determines its reasonableness. For sensitivity to individual rights. We believe that the release of medical records of a records to a government inspector example, in McLaughlin v. A.B. Chance, 842 F.2d at 727 (4th Cir. 1988), the specific employee should only be done after violated Fourth Amendment guarantees Fourth Circuit upheld a records access the employee whose records may be released against unreasonable searches and the citation against an employer who has provided written permission to the right to demand a warrant or subpoena employer to do so. refused an OSHA inspector access to its before the government can search a OSHA Logs and forms on the ground This section of the final rule does not citizen’s property (see, e.g., Exs. 25, 27, that it had a right to insist on a warrant give unfettered access to the records by 15: 124, 139, 154, 174, 193, 215, 258, or subpoena; the Court held that the the public, but simply allows a 305, 315, 318, 346, 375, 390, 392 395, inspector had such a right because a government inspector to use the records 397). For example, the Workplace Safety summary of the information was posted during the course of a safety and health and Health Council (Ex. 15: 313) stated: annually on the employee bulletin inspection. As discussed above in the [t]his provision would require employers to board and the inspector was lawfully on section covering access to the records give OSHA a copy of a Form 300 and 301. the premises to investigate a safety for employees, former employees, and This proposal flies in the face of court complaint. In New York v. Burger, 482 employee representatives (Section decisions holding that employers may not be U.S. 691, 702–703 (1987), the Supreme 1904.35), OSHA does not consider the penalized for declining to provide current Forms 300 and 301 to be medical Form 101 upon request and that, to gain Court noted that agencies may gather access to them, OSHA must proceed by information without a warrant, records, for the following reasons. First, subpoena or inspection warrant. Secretary v. subpoena, or consent if the information they do not have to be completed by a Taft Broadcasting Co., 849 F.2d 990 (6th Cir. would serve a substantial governmental physician or other licensed health care 1988); Brock v. Emerson Electric Co., 834 interest, a warrantless (or subpoena-less) professional. Second, they do not F.2d 994 (11th Cir. 1987). These decisions are inspection is necessary to further the contain the detailed diagnostic and based on an employer’s constitutional rights regulatory scheme, and the agency acts treatment information usually found in and they are not subject to change by OSHA pursuant to an inspection program that medical records. Finally, the injuries regulation. is limited in time, place, and scope. The and illnesses found in the records are These commenters appear to be Burger court upheld a warrantless usually widely known among other arguing that including a subpoena or inspection of records during an employees at the workplace where the warrant enforcement mechanism in the administrative inspection of business injured or ill worker works; in fact, text of the rule is necessary to premises. See also Kings Island (noting these co-workers may even have adequately protect their Fourth that under Burger a warrantless or witnessed the accident that gave rise to Amendment right to privacy. This is not subpoena-less inspection of records the injury or illness. the case, however. The Fourth might be reasonable, but concluding OSHA does not agree that its Amendment protects against that the facts of the case did not satisfy inspectors should be required to obtain ‘‘unreasonable’’ intrusions by the Burger analysis); Emerson Electric permission from all injured or ill government into private places and (noting that under California Bankers an employees before accessing the full things. Reporting rules that do not agency may gain access to information records. Gaining this permission would depend on subpoena or warrant powers without a subpoena or warrant but make it essentially impossible to obtain
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full access to the records, which is business hours, when 4 hours would be location, the 4-hour period can be needed to perform a meaningful acceptable. measured in accordance with the workplace investigation. For example, OSHA has concluded that 4 hours is normal business hours at the location an inspector would not be able to obtain a reasonable and workable length of where the records are being kept. Some the names of employees who were no time for employers to respond to commenters observed that personnel at longer working for the company to governmental requests for records. The the centralized location might not be perform follow-up interviews about the 4-hour time period for providing records available to respond to requests if the 4- specifics of their injuries and illnesses. from a centralized source strikes a hour period extended outside the The names of the injured or ill workers balance between the practical regular business hours of that location are needed to allow the government limitations inherent in record (see, e.g., Exs. 15: 105, 111, 159, 170, inspector to interview the injured and maintenance and the government 225, 239, 272, 294, 303, 332, 336, 343, ill workers and determine the hazardous official’s need to obtain these records 356, 359, 389, 393, 430). This problem circumstances that led to their injury or and use the information to conduct a could arise under two different illness. The government inspector may workplace inspection. scenarios. First, if the centralized also need the employee’s names to Some commenters noted that location were in a different time zone access personnel and medical records if temporary computer or fax failures than the site whose records are needed (medical records can only be could interfere with an employer’s requested, the business hours of the accessed after the inspector obtains a ability to comply with the 4-hour respective locations may differ by three medical access order). Additionally, requirement (see, e.g., Exs. 15: 203, 254, or even more hours. Second, the refusing the inspector access to the 423). One commenter felt that business hours of a manufacturing plant names of the injured and ill workers additional time should be given to or a construction site might differ from would effectively prohibit any audit of employers if equipment failure the business hours of the company’s the Part 1904 records by the prevented the retrieval of the records central offices, even if the operations are government, a practice necessary to within four hours (Ex. 15: 423). The in the same time zone. Under the final verify the accuracy of employer American Society of Safety Engineers rule, the employer has 4 regular recordkeeping in general and to identify (ASSE) questioned whether four hours business hours at the location at which problems that employers may be having is a reasonable time frame for employers the records are kept in which to comply in keeping records under OSHA’s who use independent third parties to with the request of a government recordkeeping rules. Adopting the maintain their records (Ex. 15: 182). representative. inefficient access method suggested by Several commenters raised concerns OSHA has designed the final rule to these commenters would also place a that other difficulties might make it give each employer considerable substantial administrative burden on the difficult to produce the records in the flexibility in maintaining records. It employer, the employees, and the allotted time. Some noted that the 4- permits an employer to centralize its government. Further, since OSHA hour time limit might not be adequate records, to use computer and facsimile inspectors do not allow others to see the for large facilities with voluminous technologies, and to hire a third party to medical records they have accessed, the records (see, e.g., Exs. 15: 181, 297, 425). keep its records. However, an employer privacy of employees is not For example, the American Automobile who chooses these options must also compromised by CSHO access to the Manufacturers Association (AAMA) (Ex. ensure that they are sufficiently reliable records. 15: 409) stated: Time for response to requests for to comply with this rule. In other words, records. Paragraphs 1904.40(a) and (b) [m]any of our members’ locations have only the flexibility provided to employers for one medical person working, and to disrupt of the final rule require records to be recordkeeping must not impede the the normal medical care of injured or ill Agency’s ability to obtain and use the made available to a government employees to produce records within a four inspector within 4 business hours of an hour period is not in the best interests of the records. oral request for the records, using the health and safety of all concerned. Many Provide copies. Several commenters business hours of the establishment at additional factors must be taken into account objected to the proposed requirement which the records are located. in terms of the production of records such as that employers provide copies of the A number of commenters opposed the locating the files, copying the files, having records to government personnel proposed 4-hour records production appropriate staffing to do the copying, and if without charging the government to do requirement as being unreasonable and the records are on a computer, the computer must not be on down time. so (see, e.g., Exs. 15: 69, 86, 100, 179, burdensome (see, e.g., Exs. 15: 89, 182, 347, 389, 397, 409). Most of these 185, 204, 213, 226, 260, 262, 265, 277, OSHA believes that it is essential for commenters cited the paperwork burden 294, 297, 317, 324, 348, 392, 401, 409, employers to have systems and on employers as the primary reason for 425). Several of these commenters procedures that can produce the records objecting. Several suggested that the recommended longer intervals, ranging within the 4-hour time. However, the employer be allowed to charge for from 8 hours (see, e.g., Exs. 15: 9, 133, Agency realizes that there may be copies, or that the government 204, 271, 294, 343), the ‘‘next business unusual or unique circumstances where representative make their own copies day,’’ or 24 hours (see, e.g., Exs. 15: 200, the employer cannot comply. For (see, e.g., Exs. 15: 179, 347, 389, 409). 225, 277, 394, 425), 72 hours (see, e.g., example, if the records are kept by a This view was expressed in a comment Exs. 15: 65, 154), 6 days (Ex. 15: 226), health care professional and that person from the Ford Motor Company (Ex. 15: and 21 days (Ex. 15: 317). On the other is providing emergency care to an 347): hand, some commenters were injured worker, the employer may need concerned that access not be unduly to delay production of the records. In [a]n undue burden may be placed on the delayed (see, e.g., Exs. 15: 350, 369, 418, establishment should a compliance officer such a situation, the OSHA inspector ask for an inordinate amount of records or 429). Two commenters (Exs. 15: 418, may allow the employer additional records which will not be utilized. 429) recommended that the 4-hour time. Authorized government representatives requirement be reduced to two hours, If a government representative should make their own copies and therefore except when the request would extend requests records of an establishment, will be diligent in asking only for those the reply period beyond regular but those records are kept at another materials they will be utilizing.
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OSHA’s experience has been that the an inspection. The American of an inspection. Putting these requests vast majority of employers willingly Ambulance Association (Ex. 15: 226) in writing would impede workplace provide copies to government recommended that OSHA ‘‘[p]lace inspections and delay efforts to address representatives during safety and health greater emphasis on the fact that workplace hazards. inspections. Making copies is a routine employers do not have to provide Forms office function in almost every modern 300 and 301 unless OSHA specifically Section 1904.41 Annual OSHA Injury workplace. With the widespread asks for their submission.’’ OSHA and Illness Survey of Ten or More availability of copying technology, most believes that the final rule is clear on Employers workplaces have copy machines on-site this point, because it states that the Section 1904.41 of this final rule or readily available. The cost of employer must provide the records only providing copies is minimal, usually when asked by an authorized replaces section 1904.17, ‘‘Annual less than five cents per copy. In government representative to do so. OSHA Injury and Illness Survey of Ten addition, the government representative Several commenters stated that all or More Employers,’’ of the former rule needs to obtain copes of records requests for occupational safety and issued on February 11, 1997. The final promptly, so that he or she can analyze health information should be made in rule does not change the contents or the data and identify workplace writing (see, e.g., Exs. 15: 69, 317, 397). policies of the corresponding section of hazards. Therefore, in this final rule, OSHA believes that it is neither the former rule in any way. Instead, the OSHA requires the employer to provide appropriate nor necessary to require a final rule simply rephrases the language copies of the records requested to government representative to request of the former rule in the plain language authorized government representatives. the information in writing. Government question-and-answer format used in the Other Section 1904.40 issues. officials who are conducting workplace rest of this rule. The following table Commenters raised additional issues inspections may ask for any number of shows the text of Section 1904.17 of the about providing occupational illness materials or ask verbally for information former rule, followed by the text of and injury information to OSHA during about various matters during the course Section 1904.41 of this final rule.
Former sections 1904.17 New section 1904.41
‘‘Annual OSHA Injury and Illness Survey of Ten or More Employers’’ ‘‘Annual OSHA Injury and Illness Survey of Ten or more Employers’’ 1904.17(a) Each employer shall, upon receipt of OSHA’s Annual Sur- 1904.41(a) Basic Requirement. If you receive OSHA’s annual survey vey Form, report to OSHA or OSHA’s designee the number of work- from, you must fill it out and send it to OSHA or OSHA’s designee, ers it employed and number of hours worked by its employees for as stated on the survey form. You must report the following informa- periods designated in the Survey Form and such information as tion for the year described on the form: (1) the number of workers OSHA may request from records required to be created and main- you employed; (2) the number of hours worked by your employees; tained pursuant to 29 CFR Part 1904. and (3) the requested information from the records that you keep under Part 1904. No comparable provision ...... 1904.41(b)(1) Does every employer have to send data to OSHA? No. Each year, OSHA sends injury and illness survey forms to employ- ers in certain industries. In any year, some employers will receive an OSHA survey form and others will not. You do not have to send in- jury and illness data to OSHA unless you receive a survey form. 1904.17(b) Survey reports shall be transmitted to OSHA by mail or 1904.41(b)(2) How quickly do I need to respond to an OSHA survey other remote transmission authorized by the Survey Form within the form? time period specified in the Survey Form, or 30 calendar days, You must send the survey reports to OSHA, or OSHA’s designee, by whichever is longer.. 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. 1904.17(c) Employers exempted from keeping injury and illness 1904.41(b)(3) Do I have to respond to an OSHA survey form if I am records under §§ 1904.15 and 1904.16 shall maintain injury and ill- normally exempt from keeping OSHA injury and illness records? ness records required by §§ 1904.2 and 1904.4, and make Survey Yes. Even if you are exempt from keeping injury and illness records Reports pursuant to this Section, upon being notified in writing by under § 1904.1 to § 1904.3, OSHA may inform you in writing that it OSHA, in advance of the year for which injury and illness records will will be collecting injury and illness information from you in the fol- be required, that the employer has been selected to participate in an lowing year. If you receive such a survey form, you must keep the information collection.’’. injury and illness records required by § 1904.5 to § 1904.15 and make survey reports for the year covered by the survey. 1904.17(d) Nothing in any State plan approved under Section 18 of the 1904.41(b)(4) Do I have to answer the OSHA survey form if I am lo- Act shall affect the duties of employers to comply with this section.. cated in a State-Plan State? Yes. All employers who receive survey forms must respond to the sur- vey, even those in State-Plan States 1904.17(e) Nothing in this section shall affect OSHA’s exercise of its 1904.41(b)(5) Does this section affect OSHA’s authority to inspect my statutory authorities to investigate conditions related to occupational workplace? safety and health. No. Nothing in this section affects OSHA’s statutory authority to inves- tigate conditions related to occupational safety and health.
Thus, section 1904.41 of the final rule employer that there is no need to send Occupational Injuries and Illnesses.’’ merely restates, in a plain language in the Part 1904 injury and illness data The former rule described the Bureau of question-and-answer format, the until the government asks for it. Labor Statistics annual survey of requirements of former rule section Section 1904.42 Requests From the occupational injuries and illnesses, 1904.17, with one minor change. The Bureau of Labor Statistics for Data discussed the duty of employers to final rule adds paragraph 1904.41(b)(1), answer the survey, and explained the which contains no requirements or Section 1904.42 of the final rule effect of the BLS survey on the States derives from the subpart of the former prohibitions but simply informs the operating their own State plans. rule titled ‘‘Statistical Reporting of
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Both OSHA and the BLS collect reports and work to streamline the process today replace former section 1904.21. occupational injury and illness and reduce redundancies. Specifically, US Paragraph 1904.42(a) states the general information, each for separate purposes. WEST requests that OSHA move to obligation of employers to report data to The BLS collects data from a statistical implement systems that will allow employers the BLS or a BLS designee. Paragraph to electronically provide data, such as the sample of employers in all industries data requested in the BLS Survey of 1904.42(b)(1) states that some employers and across all size classes, using the Occupational Injuries and Illnesses. Such a will receive a BLS survey form and data to compile the occupational injury method will be more effective, in terms of others will not, and that the employer and illness statistics for the Nation. The receiving consistently formatted data, and should not send data unless asked to do Bureau gives each respondent a pledge will be more cost efficient for both employers so. Paragraph 1904.42(b)(2) directs the of confidentiality (as it does on all BLS and the Department of Labor. employer to follow the instructions on surveys), and the establishment-specific In addition, the DOL should work to avoid the survey form when completing the injury and illness data are not shared duplicate internal efforts that are costly and information and return it promptly. time-consuming for the government and with the public, other government employers. By way of example, US WEST has Paragraph 1904.42(b)(3) of this final agencies, or OSHA. The BLS’s sole in the past received requests from BLS to rule notes that the BLS is authorized to purpose is to create statistical data. complete the Survey and from OSHA to collect data from all employers, even OSHA collects data from employers complete the Occupational Injury and Illness those who would otherwise be exempt, from specific size and industry classes, Report (Form 196B) for the same facility. under section 1904.1 to section 1904.3, but collects from each and every Both surveys collect similar information. from keeping OSHA injury and illness employer within those parameters. The OSHA and the BLS have worked records. This enables the BLS to establishment-specific data collected by together for many years to reduce the produce comprehensive injury and OSHA are used to administer OSHA’s number of establishments that receive illness statistics for the entire private various programs and to measure the both surveys. These efforts have largely sector. Paragraph 1904.42(b)(3) performance of those programs at been successful. However, OSHA and combines the requirements of former individual workplaces. BLS use different databases to select rule paragraphs 1904.15(b) and OSHA proposed to replace sections employers for their surveys. This makes 1904.16(b) into this paragraph of the 1904.20, .21, and .22 of the former rule it difficult to eliminate the overlap final rule. with a single reporting provision that completely. We are continuing to work In response to the question ‘‘Am I would combine the requirements for on methods to reduce further the required to respond to a BLS survey BLS and OSHA survey reports into a numbers of employers who receive both form if I am normally exempt from single section (61 FR 4039). However, BLS and OSHA survey requests. keeping OSHA injury and illness since the time of the proposal, OSHA OSHA and BLS are also pursuing records?,’’ the final rule states ‘‘Yes. has determined that the BLS and OSHA ways to allow employers to submit Even if you are exempt from keeping information collections warrant separate occupational injury and illness data injury and illness records under coverage because they occur at different electronically. In 1998, the OSHA § 1904.1 to § 1904.3, the BLS may times and collect data for different survey allowed employers for the first inform you in writing that it will be purposes. When OSHA published final time to submit their data electronically, collecting injury and illness information Section 1904.17, Annual OSHA Injury and this practice will continue in future from you in the coming year. If you and Illness Surveys (62 FR 6434, Feb. OSHA surveys. The BLS has not yet receive such a survey form, you must 11, 1997), the Agency made clear that its allowed electronic submission of these keep the injury and illness records surveys are separate from any data due to security concerns, but required by § 1904.4 to § 1904.12 and collections of injury and illness data by continues to search for appropriate make survey reports for the year covered the BLS. Accordingly, the final rule methods of electronic submission, and by the survey.’’ includes two separate sections: section hopes to allow it in the near future. Paragraph 1904.42(b)(4) of this final 1904.41, which is devoted entirely to In this final rule, OSHA has replaced rule replaces section 1904.22 of the the collection of employer-generated former sections 1904.20 to 1904.22 with former rule. It provides that employers injury and illness data by OSHA, and a new section 1904.42, which is stated in the State-plan States are also required section 1904.42, which is devoted to the in the form of a basic requirement and to fill out and submit survey forms if the collection of such data by the Bureau of four implementing questions and BLS requests that they do so. The final Labor Statistics. answers about the BLS survey. Former rule thus specifies that the BLS has the Many commenters discussed the need section 1904.20 ‘‘Description of authority to collect information on for accurate government statistics about statistical program,’’ is not carried occupational fatalities, injuries and occupational death, injury and illness; forward in the final rule because it illnesses from: (1) employers who are however, very few of the comments merely described BLS’s general legal required to keep records at all times; (2) specifically addressed the proposed authority and sampling methodology employers who are normally exempt provisions relating to employer and contained no regulatory from keeping records; and (3) employers participation in the BLS survey. The requirements. under both Federal and State plan comments OSHA did receive on this Section 1904.21 of the former rule, jurisdiction. The information collected point addressed the burden imposed by titled ‘‘Duties of employers,’’ required in the annual survey enables BLS to requests for employer records and the an employer to respond to the BLS generate consistent statistics on potential duplication between the data annual survey: ‘‘Upon receipt of an occupational death, injury and illness collections of OSHA and the BLS (see, Occupational Injuries and Illnesses for the entire Nation. e.g., Exs. 15: 9, 163, 184, 390, 402). The Survey Form, the employer shall Subpart F. Transition From the Former comments of the U.S. West Company promptly complete the form in Rule to the New Rule (Ex. 15: 184) are typical: accordance with the instructions The transition interval from the [U]S WEST acknowledges the need for the contained therein, and return it in Secretary of Labor to periodically request accordance with the aforesaid former rule to the new rule involves reports, including recordkeeping data, from instructions.’’ several issues, including training and employers. However, US WEST does ask that Paragraphs 1904.42(a), (b)(1) and outreach to familiarize employers and OSHA carefully consider the need for such (b)(2) of the final rule being published employees about the now forms and
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requirements, and informing employers rule for five years and provide access to requirements of this final rule on in newly covered industries that they those records for the government, the January 1, 2002. are now required to keep OSHA Part employer’s employees, and employee Some commenters stressed the need 1904 records. OSHA intends to make a representatives, as required by the final for an orderly transition from the former major outreach effort, including the rule at sections 1904.43 and 44. system to the new system, and pointed development of an expert software The proposal did not spell out the out that adequate lead time is needed to system, a forms package, and a procedures that the employer would understand and assimilate the changes, compliance assistance guide, to assist have to follow in the transition from the make adjustments in their data employers and recordkeepers with the former recordkeeping rule to the new management systems, and train transition to the new rule. An additional rule. OSHA realizes that employers will personnel who have recordkeeping transition issue for employers who kept have questions about how they are responsibilities (see, e.g., Exs. 15: 9, 36, records under the former system and 119, 347, 409). will also keep records under the new required to handle the data collected system is how to handle the data under the former system during this The transition also raises questions collected under the former system transition interval. The final rule about what should be done in the year during the transition year. Subpart F of maintains the basic structure and 2002 with respect to posting, updating, the final rule addresses some of these recordkeeping practices of the former and retaining the records employers transition issues. system, but it employs new forms and compiled in 2001 and previous years. In Subpart F of the new rule (sections somewhat different requirements for the transition from the former rule to the 1904.43 and 1904.44), addresses what recording, maintaining, posting, present rule, OSHA intends employers employers must do to keep the required retaining and reporting occupational to make a clean break with the former OSHA records during the first five years injury and illness information. system. The new rule will replace the the new system required by this final Information collection and reporting old rule on the effective date of the new rule is in effect. This five-year period is under the final rule will continue to be rule, and OSHA will discontinue the called the transition period in this done on a calendar year basis. The use of all previous forms, interpretations subpart. The majority of the transition effective date for the new rule is January and guidance on that date (see, e.g., Exs. requirements apply only to the first 1, 2001. OSHA agrees with the 21, 22, 15: 184, 423). Employers will be year, when the data from the previous commenter who stated that beginning required to prepare a summary of the year (collected under the former rule) the new recordkeeping system on ‘‘Any OSHA Form 200 for the year 2001 and must be summarized and posted during other date [but January 1] would create to certify and post it in the same manner the month of February. For the an insurmountable number of problems and for the same time (one month) as remainder of the transition period, the ***’’ (Ex. 27). Accordingly, employers they have in the past. The following employer is simply required to retain must begin to use the new OSHA 300 time table shows the sequence of events the records created under the former and 301 forms and to comply with the and postings that will occur:
Date Activity
2001 ...... Employers keep injury and illness information on the OSHA 200 form January 1, 2002 ...... Employers begin keeping data on the OSHA 300 form February 1, 2002 ...... Employers post the 2001 data on the OSHA 200 Form March 1, 2002 ...... Employers may remove the 2001 posting February 1, 2003 ...... Employers post the 2002 data on the OSHA 300A form May 1, 2003 ...... Employers may remove the 2002 posting
The final rule’s new requirements for (Ex. 2, p. 23). OSHA believes it would The Act dual certification and a 3-month posting be confusing and burdensome for The Occupational Safety and Health period will not apply to the Year 2000 employers to update and adjust Act of 1970 (the ‘‘OSH Act’’) is defined Log and summary. Employers still must previous years’ Logs and Summaries because the term is used in many places retain the OSHA records from 2001 and under the former system at the same in the regulatory text. The final rule’s previous years for five years from the time as they are learning to use the new definition is essentially identical to the end of the year to which they refer. The OSHA occupational injury and illness definition in the proposal. OSHA employer must provide copies of the recordkeeping system. received no comments on this retained records to authorized definition. The definition of ‘‘the Act’’ Subpart G. Definitions government representatives, and to his follows: or her employees and employee The Definitions section of the final The Act means the Occupational representatives, as required by the new Safety and Health Act of 1970 (84 Stat. rule. rule contains definitions for five terms: ‘‘the Act,’’ ‘‘establishment,’’ ‘‘health care 1590 et seq., 29 U.S. 651 et seq.), as However, OSHA will no longer professional,’’ ‘‘injury and illness,’’ and amended. The definitions contained in require employers to update the OSHA section (3) of the Act and related ‘‘you.’’ To reduce the need for readers Log and summary forms for years before interpretations shall be applicable to to move back and forth from the the year 2002. The former rule required such terms when used in this Part 1904. employers to correct errors to the data regulatory text to the Definitions section on the OSHA 200 Logs during the five- of this preamble, all other definitions Employee year retention period and to add new used in the final rule are defined in the The proposed rule defined information about recorded cases. The regulatory text as the term is used. ‘‘employee’’ as that term is defined in former rule also required the employer OSHA defines the five terms in this section 3 of the Act and added a Note to adjust the totals on the Logs if section here because they are used in describing the various types of changes were made to cases on them several places in the regulatory text. employees covered by this
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recordkeeping rule (e.g., ‘‘leased the employer operates the locations as a establishments classified in certain employees,’’ ‘‘seasonal employees’’). In single business operation under Standard Industrial Classification codes the final rule, OSHA has decided that it common management; the locations are (SIC codes) are not required to keep is not necessary to define ‘‘employee’’ all located in close proximity to each injury and illness records except when because the term is defined in section 3 other; and the employer keeps one set asked by the government to do so. of the Act and is used in this rule in of business records for the locations, Because a given employer may operate accordance with that definition. such as records on the number of establishments that are classified in employees, their wages and salaries, Employer different SIC codes, some employers sales or receipts, and other kinds of may be required to keep OSHA injury The proposed rule included a business information. For example, one and illness records for some definition of ‘‘employer’’ that was taken manufacturing establishment might establishments but not for others, e.g. if from section 3 of the Act’s definition of include the main plant, a warehouse one or more of the employer’s that term. Because the final rule uses the serving the plant a block away, and an establishments falls under the final term ‘‘employer’’ just as it is defined in administrative services building across rule’s partial exemption but others do the Act, no separate definition is the street. The final rule also makes it not. included in the final rule. clear that when an employee Fourth, the definition of Establishment telecommutes from home, the establishment is used to determine employee’s home is not a business which records an employee, former The final rule defines an establishment for recordkeeping employee, or authorized employee establishment as a single physical purposes, and a separate OSHA 300 Log representative may access. According to location where business is conducted or is not required. the final rule, employees may ask for, where services or industrial operations The definition of ‘‘establishment’’ is and must be given, injury and illness are performed. For activities where important in OSHA’s recordkeeping records for the establishment they employees do not work at a single system for many reasons. First, the currently work in, or one they have physical location, such as construction; establishment is the basic unit for which worked in, during their employment. transportation; communications, records are maintained and The proposed rule defined an electric, gas and sanitary services; and summarized. The employer must keep a establishment as: similar operations, the establishment is separate injury and illness Log (the represented by main or branch offices, (1) A single physical location that is in OSHA Form 300), and prepare a single operation for 60 calendar days or longer terminals, stations, etc. that either summary (Form 300A), for each supervise such activities or are the base where business is conducted or where establishment. Establishment-specific services or industrial operations are from which personnel carry out these records are a key component of the performed. (For example: A factory, mill, activities. recordkeeping system because each grocery store, construction site, hotel, farm, The final rule also addresses whether separate record represents the injury ranch, hospital, central administrative office, one business location can include two and illness experience of a given or warehouse.) The establishment includes or more establishments. Normally, one location, and therefore reflects the the primary work facility and other areas business location has only one particular circumstances and hazards such as recreational and storage facilities, restrooms, hallways, etc. The establishment establishment. However, under limited that led to the injuries and illnesses at conditions, the employer may consider does not include company parking lots. that location. The establishment-specific (2) When distinct and separate economic two or more separate businesses that summary, which totals the activities are performed at a single physical share a single location to be separate establishment’s injury and illness location, each activity may represent a establishments for recordkeeping experience for the preceding year, is separate establishment. For example, contract purposes. An employer may divide one posted for employees at that construction activities conducted at the same location into two or more establishment and may also be collected physical location as a lumber yard may be establishments only when: each of the by the government for statistical or treated as separate establishments. According proposed establishments represents a administrative purposes. to the Standard Industrial Classification (SIC) distinctly separate business; each Second, the definition of Manual, Executive Office of the President, business is engaged in a different Office of Management and Budget, (1987) establishment is important because each distinct and separate activity should be economic activity; no one industry injuries and illnesses are presumed to considered an establishment when no one description in the Standard Industrial be work-related if they result from industry description from the SIC manual Classification Manual (1987) applies to events or exposures occurring in the includes such combined activities, and the the joint activities of the proposed work environment, which includes the employment in each such economic activity establishments; and separate reports are employer’s establishment. The is significant, and separate reports can be routinely prepared for each presumption that injuries and illnesses prepared on the number of employees, their establishment on the number of occurring in the work environment are wages and salaries, sales or receipts, or other employees, their wages and salaries, by definition work-related may be types of establishment information. sales or receipts, and other business rebutted under certain circumstances, The final rule modifies this definition information. For example, if an which are listed in the final rule and in several ways: it deletes the ‘‘60 days employer operates a construction discussed in the section of this in operation’’ threshold, adds language company at the same location as a preamble devoted to section 1904.5, to the definition to address the concerns lumber yard, the employer may consider Determination of work-relatedness. of employers who operate each business to be a separate Third, the establishment is the unit that geographically dispersed establishment. determines whether the partial establishments, describes in greater The final rule also deals with the exemption from recordkeeping detail what OSHA means by separate opposite situation, and explains when requirements permitted by the final rule establishments at one location, and an establishment includes more than for establishments of certain sizes or in defines which locations must be one physical location. An employer may certain industry sectors applies (see considered part of the establishment, combine two or more physical locations Subpart B of the final rule). Under the and which employee activities must be into a single establishment only when final rule’s partial exemption, considered work-related, for
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recordkeeping purposes. Each of these Form 300 and Form 301 for all of the urged OSHA to adopt an even shorter topics is discussed below. locations) only when (1) the locations time-in-operation threshold (see, e.g., Subpart G of the final rule defines are all geographically close to each Exs. 15: 369, 418, 429). Typical of the ‘‘establishment’’ as ‘‘a single physical other, (2) the employer operates the comments favoring an even shorter location where business is conducted or locations as a single business operation period was one from the International where services or industrial operations under common management, and (3) the Brotherhood of Teamsters (IBT): are performed. For activities such as employer keeps one set of business [t]he International Brotherhood of Teamsters construction; transportation; records for the locations, such as is encouraged by OSHA’s modification to the communications, electric and gas records on the number of employees, definition of an establishment, especially utility, and sanitary services; and their wages and salaries, sales or reducing the requirement for an operation in similar operations, the establishment is receipts, and other business a particular location from one year to sixty represented for recordkeeping purposes information. However, even for days. The IBT would strongly support by main or branch offices, terminals, locations meeting these three criteria, reducing the requirement to thirty days to stations, etc. that either supervise such the employer may, if it chooses, cover many low level housing construction activities or are the base from which consider the separate physical locations sites, and transient operations, similar to personnel carry out these activities.’’ to be separate establishments. This part mobile amusement parks (Ex. 15: 369). This part of the definition of of the definition allows an employer to The AFL–CIO agreed: ‘‘* * * [t]he 60- ‘‘establishment’’ provides flexibility for consider a single business operation to day time period is still too long. We employers whose employees (such as be a single establishment even when believe that to truly capture a majority repairmen, meter readers, and some of his or her business operations of these transient worksites, a 30-day construction superintendents) do not are carried out on separate properties, time period would be more realistic. A work at the same workplace but instead but does not allow for separate 30-day time period as the trigger would move between many different businesses to be joined together. For capture construction activities such as workplaces, often in the course of a example, an employer operating a trenching, roofing, and painting projects single day. manufacturing business would not be which will continue to be missed if a How the definition of ‘‘establishment’’ allowed to consider a nearby storage 60-day time period is used’’ (Ex. 15: must be used by employers for facility to be a separate establishment, 418). recordkeeping purposes is set forth in while an employer who operates two Those commenters objecting to the the answers to the questions posed in separate retail outlets would be required proposed 60-day threshold usually did this paragraph of Subpart G: to consider each to be a separate so on grounds that requiring temporary (1) Can one business location include establishment. facilities to maintain records would be two or more establishments? OSHA received many comments on burdensome and costly and would not (2) Can an establishment include the proposed definition of increase the utility of the records (see, more than one physical location? ‘‘establishment.’’ These are organized by e.g., Exs. 21, 15: 21, 43, 78, 116, 122, (3) If an employee telecommutes from topic and discussed below. 123, 145, 170, 199, 213, 225, 254, 272, home, is his or her home considered a How long must an establishment exist 288, 303, 304, 305, 308, 338, 346, 349, separate establishment? to have a separate OSHA Log. The 350, 356, 358, 359, 363, 364, 375, 389, The employer may consider two or proposed rule would have required an 392, 404, 412, 413, 423, 424, 433, 437, more economic activities at a single establishment to be in operation for 60 443, 475). For example, the Associated location to be separate establishments days to be considered an Builders and Contractors, Inc. (ABC) (and thus keep separate OSHA Form ‘‘establishment’’ for recordkeeping remarked: 300s and Form 301s for each activity) purposes. Under the proposed ABC agrees with OSHA’s sentiment of only when: (1) Each such economic definition, employers with activity represents a separate business, making injury and illness records useful, but establishments in operation for a lesser disagrees that sites in existence for as little (2) no one industry description in the period would not have been required to as 60 days need separate injury and illness Standard Industrial Classification keep a log for that operation. The records. The redefinition of ‘‘establishment’’ Manual (1987) applies to the activities proposed 60-day threshold would have will cause enormous problems for carried out at the separate locations; and changed the definition of subcontractors in a variety of construction (3) separate reports are routinely ‘‘establishment’’ used in OSHA’s former industries. Even employers with small prepared on the number of employees, recordkeeping rule, because that rule workforces could be on the site of several their wages and salaries, sales or included a one-year-in-operation projects at any one time, and in the course receipts, and other business threshold for defining establishments of the year could have sent crews to information. This part of the definition hundreds of sites. Though they may be on required to keep a separate OSHA log such sites for only brief periods of time, they of ‘‘establishment’’ allows for separate (Ex. 2, p. 21). The effect of the proposed will be required under this proposal to create establishments when an employer uses change in the threshold would have separate logs for each site, increasing greatly a common facility to house two or more been to increase the number of short- their paperwork requirements without separate businesses, but does not allow duration operations required to increasing the amount of information different departments or divisions of a maintain separate injury and illnesses available to their employees. Projects which single business to be considered records. In particular, the proposed last less than 90 days do not need separate separate establishments. However, even change would have affected logs. Requiring separate logs for short-term if the establishment meets the three construction employers and utility projects only increases inefficiency and costs, criteria above, the employer may, if it companies. while doing nothing for safety (Ex. 15: 412). chooses, consider the physical location The majority of the comments OSHA Many of these commenters argued to be one establishment. received on this issue opposed the that a 60-day threshold would be The definition also permits an decrease in the duration of the threshold especially burdensome if it captured employer to combine two or more from one year to 60 calendar days. A small work sites where posting of the physical locations into a single few commenters, however, supported annual summary or mailing the establishment for recordkeeping the proposed 60-day rule (see, e.g., Exs. summary to employees would make purposes (and thus to keep only one 15: 9, 133, 310, 369, 425), and some little sense because so few cases would
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be captured on each Log. The majority Geographically Dispersed chances of discovering patterns of of these commenters suggested that Workplaces. A number of commenters occupational injury and illness that can OSHA retain the former one-year raised issues of particular importance to be used to make safety and health duration threshold in the definition of the construction and utility industries improvements. At the same time, by establishment (see, e.g., Exs. 15: 78, 123, (see, e.g., Exs. 15: 43, 116, 122, 123, 145, requiring records to be kept for any 225, 254, 305, 356, 389, 404). 170, 199, 213, 225, 272, 288, 303, 305, individual construction project that is Other commenters expressed concern 350, 359, 364, 392, 412, 433, 443). In expected to last for one year or longer, that the proposed 60-day threshold addition to objections about the 60- the final rule ensures that useful records would create an unreasonable burden days-in-operation threshold in the are generated for more permanent on employers in service industries like definition of establishment, these facilities. telecommunications and other utilities, commenters raised concerns about the More than one establishment at a whose employees typically report to a difficulty of keeping records for a single location. OSHA’s former rule fixed location but perform tasks at mobile and dispersed workforce. recognized, for recordkeeping purposes, transient locations that remain in Representative of these comments is the that more than one establishment can existence for more than 60 days and statement by Con Edison (Ex. 15: 213): exist at a single location, although most workplaces consist of a single would thus be classified as new Con Edison believes that OSHA’s proposal ‘‘establishments’’ for OSHA to tie its redefinition of a permanent establishment at a single location. The recordkeeping purposes (see, e.g., Exs. establishment to a 60-day time frame, as final rule also recognizes that, in some 15: 65, 170, 199, 213, 218, 332, 336, 409, opposed to the present one-year limit, would narrowly defined situations, a business 424). be costly, overly burdensome and in some may have side-by-side operations at a cases unworkable. On many occasions work OSHA has reviewed all of the single location that are operated as must be performed on city streets or in out separate businesses because they are comments on this issue and has of the way areas during the erection of responded by deleting any reference to engaged in different lines of business. In overhead transmission and distribution lines. these situations, the Standard Industrial a time-in-operation threshold in the These projects may carry on for periods Classification Manual (OMB 1987) definition of establishment but greater than the 60-day period specified allows a single business location to be specifying a one-year threshold in above for designation as an establishment. No classified as two separate section 1904.30 of the final rule. In permanent structures are erected at these sites and to require maintenance of records establishments, each with its own SIC response to comments, OSHA has thus there is impractical. Con Edison believes that code. Like all government agencies, continued the former one-year threshold the definition of establishment as set forth in OSHA follows the OMB classification rather than adopting the 60-day the 1987 Standard Industrial Classification method and makes allowances for such threshold proposed. Under the final Manual (see below) should apply. circumstances. rule, employers will be required to ‘‘For activities such as * * * electric * * * The proposal stated that distinct, maintain establishment-specific records and similar physically dispersed operations, establishments are represented by those separate economic activities performed for any workplace that is, or is expected at a single physical location may each to be, in operation for one year or relatively permanent main or branch offices, terminals, stations, etc. that are (2) the base be classified, for recordkeeping longer. Employers may group injuries from which personnel operate to carry out purposes, as a separate establishment. and illnesses occurring to workers who these activities. Hence, the individual sites, The proposed definition stated that each are employed at shorter term projects, fields, networks, lines, or system of distinct and separate economic activity establishments onto one or more such dispersed activities are not ordinarily may be considered an establishment consolidated logs. These logs may cover considered to be establishments.’’ (SIC Manual, 1987, p. 265). when (1) no one industry description the entire company; geographic regions from the Standard Industrial such as a county, state or multi-state OSHA agrees that the recordkeeping Classification (SIC) manual includes area; or individual divisions of the system must recognize the needs of such combined activities, (2) the company. For example, a construction operations of this type and has adopted employment in each economic activity company with multi-state operations language in the final rule to provide is significant, and (3) separate reports might have separate logs for each state some flexibility for employers in the can be prepared on the number of to show the injuries and illnesses of construction, transportation, employees, their wages and salaries, short-term projects, as well as separate communications, electric and gas sales or receipts, or other types of logs for each construction project utility, and sanitary services industries, establishment information. The final expected to last for more than one year. as well as other employers with rule is essentially unchanged from the OSHA finds, based on the record geographically dispersed operations. proposal on this point, but the language evidence, that the one-year threshold The final rule specifies, in Subpart G, has been modified to make it clear that will create useful records for stable that employers may consider main or the employer may employ this option establishments without imposing an branch offices, terminals, stations, etc. only in the enumerated circumstances. unnecessary burden on the many that are either (1) responsible for Several commenters were in favor of establishments that remain in existence supervising such activities, or (2) the OSHA’s proposed definition of separate for only a few months. OSHA concludes base from which personnel operate to establishments as places engaged in that the one-year threshold and carry out these activities, as individual separate economic activities (see, e.g., permitting employers to keep one Log establishments for recordkeeping Exs. 15: 185, 297, 375) and agreed that for geographically dispersed or short- purposes. This addition to the final when distinct and separate economic term facilities will also provide more rule’s definition of establishment allows activities are performed at a single useful injury and illness records for an employer to keep records for physical location, each activity should workers employed in transient geographically dispersed operations be considered a separate establishment. establishments. This will be the case using the existing management structure Others, however, disagreed with the because the records will capture more of the company as the recording unit. proposed definition of multiple cases, which enhances the informational Use of this option will also mean that establishments at a single location (see, value of the data and permits analysis each Log will capture more cases, which e.g., Exs. 15: 194, 305, 322, 346, 347, of trends. will, as discussed above, improve the 348, 389, 409, 424, 431). The comments
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of the Ford Motor Company (Ex. 15: recordkeeping purposes, and will keep from the definition of establishment and 347) and the American Automobile just one Log. However, allowing some thus did not require injuries and Manufacturing Association (AAMA) flexibility for the rare cases that meet illnesses occurring to employees at (Ex. 15: 409) are representative: the specified criteria is appropriate. The these locations to be recorded unless the [a]ll economic activities performed at a single employer is responsible for determining employee was actually performing work location should be allowed to be placed on whether a given workplace meets the in those areas (Ex. 2, p. 33). The final a single log. Many of these locations have criteria; OSHA will consider an rule includes these areas in the only one medical department, payroll, or employer meeting these criteria to be in definition of establishment but does not management. At many of these locations, compliance with the final rule if he or require employers to record cases separate reports cannot be prepared on the she keeps one set of records per facility. occurring to employees engaged in number of employees per establishment, and This policy allows an employer to keep certain activities at these locations. For at times many of the employees will work at one set of records for a given location example, injuries and illnesses separate sites within the same single physical and avoid the additional burden or occurring at the establishment while the location. To break down the economic employee is voluntarily engaged in activities to record injuries and illness on inconvenience associated with keeping different logs is confusing, difficult, and separate records. recreation activities or resulting from a overly burdensome. The McDonnell Douglas Corporation motor vehicle accident while the (Ex. 15: 297) and the American Textile employee is commuting to or from work United Parcel Service (UPS) (Ex. 15: Manufacturers Institute (ATMI) (Ex. 15: would not have to be recorded (see 424) added: 156) commented on a different scenario, section 1904.5). The following [t]he proposal should be amended to make one in which a single establishment paragraphs discuss OSHA’s reasons for clear that treatment of a different activity as could encompass more than one taking this approach to the recording of a separate establishment is optional, not physical location. ATMI remarked that: injuries and illnesses occurring in these mandatory—the proposal currently results in locations. unnecessary ambiguity by saying first that [O]SHA’s definition of establishment as ‘‘a Company Parking Lots and Access single physical location’’ is too restrictive. separate activities ‘‘may’’ be separate Roads. Because the former rule establishments, and then describing We believe that OSHA should be more situations in which they ‘‘should be’’ flexible since many industries have primary excluded company parking lots and considered an establishment. A requirement facilities with secondary work facilities that access roads from the definition of that such vaguely defined ‘‘economic have the same local management. For establishment, injuries and illnesses activities’’ be treated as separate example, in the textile industry, a plant may that occurred to their employees while ‘‘establishments’’ would be mistaken: use a warehouse that is not physically on such parking lots and access roads employers would be left to guess what is an attached but the plant manager is responsible were not considered work-related and ‘‘economic activity’’ and when it is for the both facilities. We suggest that the text did not have to be recorded on the Log; ‘‘separate’’ from another. Moreover, such of the rule be modified to read: ‘‘A single the proposed rule would have mandatory separate recordkeeping would physical location or multiple physical continued this practice. Many locations under the same management unnecessarily burden employers with commenters urged OSHA not to determining when separate records are ***.’’ consider injuries and illnesses occurring required, and with maintaining such separate OSHA agrees that there are situations records. in these locations work-related, where a single establishment that has a principally because, in the view of these These commenters understood the satellite operation in close physical commenters, employers have little proposed language as requiring proximity to the primary operation may control over safety and health employers to keep separate logs if together constitute a single business conditions in their parking lots (see, separate economic activities were being operation and thus be a single e.g., Exs. 15: 9, 65, 78, 95, 105, 107, 111, conducted at a single establishment; establishment. For example, a business 119, 136, 137, 141, 154, 159, 194, 203, what OSHA intended, and the final rule may have a storage facility in a nearby 204, 218, 224, 225, 260, 262, 265, 266, makes clear in Subpart G, is that an building that is simply an adjunct to the 277, 278, 288, 304, 337, 389, 401). The employer whose activities meet the final business operation and is not a separate comments of the American Gas rule’s definition may keep separate logs business location. Association (AGA) are representative: if he or she chooses to do so. Thus the OSHA believes that there are ‘‘AGA agrees with OSHA that parking final rule includes a provision that situations where establishments in lots and access roads should be allows an employer to define a single separate physical locations constitute a excluded from the definition of business location as two separate single establishment. However, under establishment and therefore injuries establishments only under specific, the final rule, employers will only be occurring there are not work-related. narrow conditions. The final rule allows allowed to combine separated physical Likewise, injuries and illnesses that the employer to keep separate records locations into a single establishment occur during commuting must also only when the location is shared by when they operate the combined continue to be excluded’’ (Ex. 15: 225). completely separate business operations locations as a single business operation The Texas Chemical Council (TCC) involved in different business activities under common management and keep a agreed with this position: ‘‘[T]CC (Standard Industrial Classifications) for single set of business records for the supports continuing these exceptions. which separate business records are combined locations, such as records on Employers have limited to no control available. By providing specific, narrow the number of employees, their wages over variables that contribute to criteria, the final rule reduces ambiguity and salaries, sales or receipts, and other incidents occurring in parking lots or and confusion about what is required types of business information. during commutes to and from work’’ and sets out the conditions that must be How OSHA defines an establishment (Ex. 15: 159). met in order for employers to deviate also has implications for the way Other commenters, however, argued from the one place-one establishment company parking lots and recreation that cases occurring on company concept. facilities, such as company-provided parking lots and access roads should be OSHA expects that the overwhelming gymnasiums, ball fields, and the like are included in the establishment’s Log majority of workplaces will continue to treated for recordkeeping purposes. The (see, e.g., Exs. 15: 61, 157, 310, 407, be classified as one establishment for 1986 Guidelines excluded these areas 432). The Laborer’s Health and Safety
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Fund of North America pointed to the to provide their employees with better recreational facilities maintained by the difficulty of separating cases occurring protection. Accordingly, for employer. As discussed above, OSHA on the parking lot from those occurring recordkeeping purposes, the final rule believes that including in the final rule at other locations within the includes company parking lots and a list of activities that employers can use establishment: access roads in the definition of to rebut the presumption of work- [w]e do not believe that company parking establishment. However, the final rule relatedness for recordkeeping purposes lots should be excluded from the definition recognizes that some injuries and will greatly simplify the system for of establishment. The parking lot exclusion illnesses occurring on company parking employers and result in the collection of seems to be based on the assumption that lots and access roads are not work- more meaningful data. Including a list parking lots are separate from loading dock related and delineates those that are of such activities in the final rule was and other work areas. On road construction work-related from those that are not supported by many commenters (see, sites, ‘‘parking lots’’ are sometimes right in work-related on the basis of the activity e.g., Exs. 15: 65, 151, 152, 170, 179, 180, the middle of the work zones where heavy the employee was performing at the 204, 246, 350, 392). The comments of equipment is operating. Pedestrian time the injury or illness occurred. For the Tosco Corporation are employees being hit by traffic and moving machinery are responsible for about 41.5% of example, when an employee is injured representative: ‘‘[w]e agree that the the yearly fatalities in road construction and in a motor vehicle accident that occurs recreational facilities should not be maintenance work. We believe that excluding during that employee’s commute to or automatically excluded, but rather that parking lots from the definition of from work, the injury is not considered the voluntary use of the facilities govern establishment would open the door to under work-related. Thus, the final rule allows the work relatedness as OSHA has reporting of workplace fatalities on the employer to exclude from the Log indicated. This will make the OSHA construction sites, and discourage injuries and illnesses occurring on regulation consistent with workers construction employers from establishing company parking lots and access roads compensation rulings’’ (Ex. 15: 246). safe parking areas for their employees (Ex. while employees are commuting to or An even larger number of commenters 15: 310). from work or running personal errands disagreed with OSHA’s proposed The National Institute for Occupational in their motor vehicles (see section approach, however, arguing that a Safety and Health (NIOSH) presented 1904.5). However, other injuries and location-based, rather than activity- statistical data demonstrating the illnesses occurring in parking lots and based, exclusion was more appropriate importance of safety and health on access roads (such as accidents at for recordkeeping purposes (see, e.g., measures in employer-owned parking loading docks, while removing snow, Exs. 15: 9, 95, 111, 119, 136, 137, 141, lots: falls on ice, assaults, etc.) are considered 154, 156, 184, 194, 203, 213, 218, 224, [N]IOSH does not support continuing the work-related and must be recorded on 232, 266, 271, 277, 278, 288, 304, 317, exemption of employer-owned parking lots the establishment’s Log if they meet the 345, 347, 389, 409, 414, 423, 428, 431). from the definition of an establishment. other recording criteria of the final rule For example, the law firm of Constangy, NIOSH recommends that OSHA require (e.g., if they involve medical treatment, Brooks & Smith, LLC, argued that employers to record cases meeting the work lost time, etc.). excluding facilities is simpler than relationship criteria that occur in employer- OSHA concludes that the activity- excluding activities: ‘‘* * * [t]he owned parking areas. Employers have based approach taken in the final rule current requirements allow a more extensive control over the environmental will be simpler for employers to use simplified analysis of the recreational conditions in their own parking areas. than the former rule’s location-based facility issue and this analysis should be Environmental conditions that are under employer control include snow and ice approach and will result in the retained in place of the more accumulation in walk areas, vicinity lighting collection of better data. First, the complicated analysis that would be around parked cars and entrance ways, and activity-based approach eliminates the imposed under the Proposed security provisions in parking areas. In 1993, need for employers to determine where Recordkeeping Rule’’ (Ex. 15: 345). parking lots and garages were identified in a a parking lot begins and ends, i.e., what Other employers stressed the concept study of violence in the workplace as the specific areas constitute the parking lot, that changing the exclusion for location where 211 fatal injuries occurred which can be difficult in the case of recreational facilities would reduce the [Toscano and Weber 1995]. Eighty-two of combined, interspersed, or poorly incentive for employers to provide such these deaths were homicides. Parking lots defined parking areas. Second, it facilities for their employees’ use (see, and garages accounted for 3.4% of fatal ensures the recording of those injuries e.g., Exs. 15: 136, 137, 141, 213, 224, injuries and 7.8% of homicides. Data on the total number of injuries and illnesses and illnesses that are work-related but 266, 278). The remarks of the Society for occurring in parking lots and garages is simply happen to occur in these areas. Human Resource Management (SHRM) unknown. However, in 1992 the category If parking lots and access roads are are typical: ‘‘[t]o presume that the ‘‘parking lots’’ was listed as the source of totally excluded from the definition of employee’s usage of weight room injury or illness for 10,000 cases involving establishment, employers would not facilities is involuntary may be days away from work [U.S. Department of record any injury or illness occurring in unrealistic and would likely result in Labor l995a]. The proportion of parking lots such locations. For example, employers the closure of employer provided weight and garages owned by the employer where could fail to record an injury occurring rooms, golf courses, and other facilities fatal and nonfatal injuries occurred is not to an employee performing work, such which benefit the employees * * *’’ known (Ex. 15: 407). as building an attendant’s booth or (Ex. 15: 431). OSHA agrees with NIOSH that demarcating parking spaces, from the In the final rule, OSHA has decided company parking lots can be highly Log. to include recreational areas in the hazardous and that employers have Recreation facilities. Although the definition of establishment but to considerable control over conditions in proposed rule would have included include voluntary fitness and such lots. In addition, OSHA believes recreational facilities in the definition of recreational activities, and other that having data on the kinds of injuries establishment, it would have excluded, wellness activities, on the list of and illnesses occurring on company for recordkeeping purposes, injuries and excepted activities employers may use parking lots and access roads will illnesses occurring to employees who to rebut the presumption of work- permit employers to address the causes were voluntarily participating in relatedness in paragraph 1904.5(b)(2). of these injuries and illnesses and thus wellness activities at fitness or OSHA finds that this approach is
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simpler and will provide better injury private homes needs to be reexamined. any non-relevant or extraneous information. and illness data because recreational The sixty day rule by itself does not We believe that this anomaly is easily facilities are often multi-use areas that seem unreasonable except that it correctable, and the result will be a more are sometimes used as work zones and accurate assessment of hazards associated captures these small work sites where with a specific workplace (Ex. 15: 203). sometimes as recreational areas. Several the requirements for posting or mailing of the interpretations OSHA has summaries make little sense’’ (Ex. 21). OSHA does not agree with this provided over the years address this In the final rule, OSHA has not commenter that injuries and illnesses problem. For example, the loading dock excluded private homes from the occurring in such areas are not work- or warehouse at some establishments definition of establishment because related. For example, many injuries has an area with a basketball hoop that many private homes contain home occurring in lunch rooms involve is used for impromptu ball games offices or other home-based worksites, slippery floors, which the employer can during breaks, while at other and injuries and illnesses occurring to address by establishing a system for establishments employees may use a employees during work activities immediate spill cleanup. However, the grassy area to play softball, an empty performed there on behalf of their final rule does contain an exception meeting room for aerobics classes, or the employer are recordable if the employer from recordability of cases where the perimeter of the property as a jogging or is required to keep a Log. However, the employee, for example, chokes on his or bicycling track. Providing an exception final rule makes clear that, in the case her food, is burned by spilling hot based on activity will make it easier for of an employee who telecommutes from coffee, etc. (see paragraph 1904.5(b)). employers to evaluate injuries and his or her home, the home is not The United Parcel Service (UPS) illnesses that occur in mixed-use areas considered an establishment for OSHA recommended that OSHA craft its rule of the facility. recordkeeping purposes and the to coincide with the company’s This approach is also consistent with employer is not required to keep a personnel records system, stating ‘‘[t]he OSHA’s overall approach in the final separate Log for the home office. For unit for which an employer maintains rule of using specific activity-based these workers, the worker’s personnel records is presumptively exemptions to allow the employer to establishment is the office to which they appropriate and efficient; accordingly, rebut the presumption of work report, receive direction or supervision, OSHA should not mandate a rule that relationship rather than providing collect pay, and otherwise stay in conflicts with a company’s current exemptions by modifying the definition contact with their employer, and it is at personnel units policy’’ (Ex. 15: 424). of establishment. OSHA also does not this establishment that the Log is kept. OSHA recognizes that employers would believe that this approach will provide For workers who are simply working at prefer OSHA to allow companies to an incentive for employers to eliminate home instead of at the company’s office, keep records in any way they choose. recreational and fitness opportunities i.e., for employees who are However, OSHA believes that allowing for their employees. Both approaches telecommuting, OSHA does not each company to decide how and in exempt the same injuries from consider the worker’s home to be an what format to keep injury and illness recording, but the final rule’s approach establishment for recordkeeping records would erode the value of the provides employers with a more purposes, and the definition of injury and illness records in describing straightforward mechanism for rebutting establishment makes this fact clear. the safety and health experience of the presumption of work relationship. OSHA has recently issued a compliance individual workplaces and across OSHA believes that injuries and directive clarifying that OSHA does not different workplaces and industries. illnesses occurring to employees who and will not inspect home offices in the OSHA has therefore decided not to are present in recreational areas as part employee’s home and would inspect a adopt this approach in the final rule. of their assigned work duties should be home-based worksite other than a home Two commenters raised the issue of recorded on the Log; the final rule thus office only if the Agency received a centralized recordkeeping as it related only permits employers to exclude complaint or referral. A fuller to the proposed definition of recreational activities that are being discussion concerning the establishment. The General Electric performed by the employee voluntarily determination of the work-relatedness of Company (GE) stated: from their Logs. For example, an injury injuries and illnesses that occur when [G]E does not support the redefinition of to an exercise instructor hired by the employees are working in their homes establishment to mean a single physical company to conduct classes and can be found in the discussion of location that is in operation for 60 calendar demonstrate exercises would be § 1904.5 Determination of work- days or longer. GE field staff frequently considered work related, as would an establish such establishments and the illness injury or illness sustained by an relatedness. and injury recording and reporting for these Miscellaneous issues. Two employee who is required to exercise to sites has been done at central locations. The commenters recommended that OSHA maintain specific fitness levels, such as required data therefore is already collected consider excluding injuries and a security guard. but the new definition would substantially Private homes as an establishment. illnesses occurring to employees while increase the administrative burden for employers, without providing any additional Two commenters raised the issue of they were present in other areas as well (Exs. 15: 203, 389). The International value. Currently, field employees can report whether or not private homes could an injury to one well-trained individual who constitute an establishment (see, e.g., Dairy Foods Association (IDFA) suggested: is able to properly administer the program Exs. 21, 15: 304, 358). The National and keep all required documentation. Under Federation of Independent Business [i]n addition, facilities such as cafeterias/ this new rule, the employer would need to (NFIB) stated: ‘‘[N]FIB believes that the lunch/break/rest/locker rooms should be train a significantly greater number of definition of establishment as applied to exempted except for the employees who employees on the proper method for extremely small work sites, including work in those areas. While it is true that recording injuries and illnesses, keeping other workers may occasionally be injured in private homes, needs to be reexamined’’ documentation, and ensuring the submission these areas, the inclusion of all injury/illness of this information to the central office for (Ex. 15: 304). The Organization information that occurs in these areas only long-term retention. Further, turnover in the Resource Counselors (ORC) added: distorts the data. OSHA should be concerned field service operations necessitates an ‘‘[d]efinition of establishment as applied with the accuracy of any information it ongoing training program. GE would prefer to to extremely small work sites including requires and/or collects and should eliminate train field service employees on GE’s
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expectations for safe performance and how to intended to ensure that those meanings in different states, and in perform their jobs safely, rather then training professionals providing treatment and some states, some providers can pay to field service employees on OSHA making determinations about the be certified or registered even though recordkeeping regulations (Ex. 15: 349). recordability of certain complex cases their credentials are inadequate (see, OSHA will continue to allow are operating within the scope of their e.g., Exs. 15: 199, 272, 303, 375). A few employers to keep their records license, as defined by the appropriate commenters also noted that some centrally and on computer equipment, state licensing agency. registrations and certifications are given and nothing in the final rule would The rulemaking record reflects a wide by professional associations rather than preclude such electronic centralization. diversity of views on this topic. Many state agencies. For example, according OSHA believes that the definition of commenters thought the proposed to the American Academy of Physician establishment in the final rule will have definition was much too broad, leaving Assistants: no impact on the ability of the employer ‘‘[t]he door open for unqualified [w]hile many health care providers receive to keep records centrally; however, the individuals to make medical diagnoses’’ professional certification through a private final rule does continue to require (see, e.g., Exs. 15: 342, 201). Many certifying body (e.g. board certification in employers to summarize and post the commenters also argued that the cardiology for a doctor), this ‘‘certificate’’ is records for each establishment at the proposed definition could be not automatically tied to any state recognized end of the year. misinterpreted (see, e.g., Exs. 31, 15: credential or scope of practice permitting the The North Carolina Department of 131, 342, 397). Specifically, many provision of health care services. PAs, for Labor (Ex. 15: 186) suggested that OSHA employers thought the definition could example, are certified by the National Commission on Certification of Physician add a note cross-referencing the rule’s be interpreted to permit untrained or exceptions for work relationship in Assistants. This certification is not unlicensed individuals to treat synonymous with a state certificate or parking lots, to assist readers in locating employees or to make medical them. OSHA has not added a note to the license. As the proposed rule is currently diagnoses that would determine the worded, an NCCPA-certified PA or a definition but believes that the list of recordability of certain an injuries or physician who is board certified in exceptions to the presumption of work- illnesses (see, e.g., Exs. 15: 304, 355, cardiology would qualify as a ‘‘health care relationship will achieve the objective 433). Additionally, some commenters provider.’’ However, OSHA would not be this commenter intended. In addition, interpreted the proposed definition to assured that the PA or physician was OSHA has included a table showing mean that any time an individual who practicing medicine with a license and in compliance with their state scope of practice. changes from the former system to the was certified or trained in new system in the compliance Further, it would be illegal in all states for cardiopulmonary resuscitation (CPR) or a PA or a physician to provide health care assistance and training materials it is first aid administered treatment, the distributing to employers and services based solely on their professional case would automatically be recordable certification (Ex. 15: 81). employees. (see, e.g., Exs. 15: 116, 132, 323, 341, Still others feared that registered or 356). For example, the National Health Care Professional certified ‘‘alternative medicine’’ Federation of Independent Business The final rule defines health care providers, such as acupuncturists and noted: professional (HCP) as ‘‘a physician or massage therapists, might influence an other state licensed health care [u]nlike licensed practitioners, those who are employer’s recordkeeping decision (see, professional whose legally permitted registered or certified are not consistently e.g., Exs. 15: 184, 317, 430). scope of practice (i.e. license, judged against stringent objective criteria. The proposed definition was, registration or certification) allows the Oftentimes registration is obtained by paying however, supported by several unions, professional independently to provide a fee and certification usually entails attending training courses on how to large and small employers, and or be delegated the responsibility to administer first aid. In any given place of professional associations representing provide some or all of the health care employment it is common to find at least one those health care personnel who might services described by this regulation.’’ employee who is trained and certified in first be excluded by a more restrictive The proposed rule used the term aid care. Simple actions on the part of such definition (see, e.g., Exs. 15: 9, 72, 137, ‘‘health care provider,’’ defined as a an employee could become recordable 170, 204, 278). These commenters person operating within the scope of his instances under this proposal. This would generally advocated a broader definition or her health care license, registration or only serve to erroneously inflate statistics because such a definition would certification. The final rule uses the thus making the work site log an inaccurate recognize the various types of health term ‘‘health care professional’’ to be reflection of occupational injuries and illnesses (Ex. 15: 304). care personnel who may be called on to consistent with definitions used in the attend an injured employee (see, e.g., medical surveillance provisions of other Consequently, many commenters Exs. 15: 181, 350, 376, 392, 417). OSHA standards (see, e.g., the advocated qualifying the proposed Typical of these comments was one methylene chloride final rule (29 CFR definition by limiting it to providers from The Fertilizer Institute: 1910.1052). with specific types of training, such as OSHA recognizes that injured licensed physicians (see, e.g., Exs. 15: [O]SHA should not qualify and limit this definition to personnel with specific training employees may be treated by a broad 42, 105) or other providers, such as due to the wide variation in health care range of health care practitioners, dentists, psychiatrists, or clinical support and training available throughout the especially if the establishment is located psychologists (see, e.g., Exs. 15: 126, country. Because not all facilities are located in a rural area or if the worker is 312, 342, 410, 433, 443) and/or in large metropolitan areas where a wide employed by a small company that does practitioners operating under their variety of medical training is available, it not have the means to provide on-site direction, such as physician assistants may be difficult, if not impossible to satisfy access to an occupational nurse or a and nurses (see, e.g., Exs. 15: 116, 131, Administration-specified minimal training physician. Although the rule does not 334, 344, 441). (Ex. 15: 154). specify what medical specialty or Some commenters proposed These commenters did agree, however, training is necessary to provide care for eliminating the words ‘‘registration’’ that to ensure the availability of quality injured or ill employees, the rule’s use and ‘‘certification’’ from the definition health care to employees, health care of the term health care professional is because these terms have different professionals must be licensed or
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certified by the state(s) in which they those decisions must be operating final rule being published today because practice and must operate within the within the scope of their license or the former rule required employers to scope of that license or certification certification when they make such record every occupational illness, (see, e.g., Exs. 24, 15: 81, 181, 350, 417). decisions. regardless of severity. The final rule In particular, several commenters Injury or Illness applies the same recording criteria to stressed the need to define the term occupational illnesses as to ‘‘health care professional’’ as one The final rule’s definition of injury or occupational injuries, and thus rules out practicing ‘‘in accordance with the laws illness is based on the definitions of minor illnesses (see the Legal Authority of the applicable jurisdiction’’ (Ex. 15: injury and illness used under the former section and the preamble discussion 409; see also Exs. 15: 308, 349). recordkeeping regulation, except that it accompanying section1904.4). Additionally, the AFL–CIO cautioned combines both definitions into a single The former rule’s broad definition of that using a broad definition of the term term ‘‘injury or illness.’’ Under the final illness was upheld in a 1989 ‘‘health care provider’’ in this rule, an injury or illness is an abnormal Occupational Safety and Health Review recordkeeping rule should not condition or disorder. Injuries include Commission decision concerning the supersede or in any way affect the cases such as, but not limited to, a cut, recording of elevated levels of lead in provisions of many OSHA health fracture, sprain, or amputation. Illnesses the blood of workers employed at a standards that specifically require a include both acute and chronic battery plant operated by the Johnson physician to perform medical illnesses, such as, but not limited to, a Controls Company. In that decision surveillance of occupationally exposed skin disease, respiratory disorder, or (OSHRC 89–2614), the Occupational employees: systemic poisoning. The definition also Safety and Health Review Commission includes a note to inform employers that [a]ll of OSHA’s 6(b) health standards, except found that: some injuries and illnesses are for Bloodborne Pathogens, require that the [a]s the Secretary states in his brief on review medical examinations required by the rules recordable and others are not, and that ‘‘The broad applicability of the term ‘‘illness’’ be carried out by a physician or under the injuries and illnesses are recordable adopted in the BLS Guidelines serves this supervision of a licensed physician. Many of only if they are new, work-related cases purpose [to set explicit and comprehensive these standards further require that a that meet one or more of the final rule’s recording requirements designed to obtain physician evaluate the results of the exam recording criteria. accurate and beneficial statistics regarding and provide a diagnosis and opinion as to Former rule’s definition. The former the causes of occupational disease] by whether any adverse medical condition has rule also defined these terms broadly, as including health related conditions which been detected. Some standards such as lead, did the proposal. The text of the former may not look like, or may not yet be, treatable benzene, and formaldehyde also require the recordkeeping rule did not include a illnesses.’’ Accordingly, for the purposes of physician to determine whether or not an definition of injury or illness; instead, the Secretary’s recordkeeping regulations employee should be removed from his or her promulgated pursuant to sections 8(c)(1) and job due to occupational exposures. the definitions for these terms were (2) of the Act, we accept the Secretary’s [In contrast], the proposed recordkeeping found on the back of the OSHA 200 Log interpretation of ‘‘illness’’ that includes rule would allow diagnoses for conditions and in the former Recordkeeping blood lead levels at or above 50 ug/100g. covered by these standards (e.g., lead Guidelines (Ex. 2, p. 37). The definition poisoning, asbestosis, byssinosis) to be made of occupational injury found in the Proposed rule’s definition. OSHA by any health care provider operating within Guidelines was: proposed a new, broad definition that the scope of their license. We are concerned encompassed both occupational injury that this discrepancy and inconsistency may Occupational injury is any injury such as and occupational illness. This approach lead to confusion about the requirements for a cut, fracture, sprain, amputation, etc., was consistent with one of the goals of which results from a work accident or from medical surveillance under OSHA’s health the proposal, to eliminate the standards (Ex. 15: 418). an exposure involving a single incident in the work environment. distinction between injury and illness Therefore, the AFL–CIO Note: Conditions resulting from animal entirely for recordkeeping purposes. recommended that OSHA insert a bites, such as insect or snake bites, or from OSHA’s proposed definition of an injury provision in the proposed one-time exposure to chemicals are or illness was: recordkeeping rule that would ensure considered to be injuries. ‘‘Injury or illness’’ is any sign, symptom, or that it is not interpreted as superseding An occupational illness was defined as: laboratory abnormality which indicates an the requirements of those standards. [a]ny abnormal condition or disorder, other adverse change in an employee’s anatomical, OSHA shares this concern and does not than one resulting from an occupational biochemical, physiological, functional, or intend the use of the term ‘‘health care injury, caused by exposure to environmental psychological condition (61 FR 4058). professional’’ in this rule to modify or factors associated with employment. It Comments on the proposed definition. supersede any requirement of any other includes acute and chronic illnesses or Many commenters remarked that the OSHA regulation or standard. diseases which may be caused by inhalation, absorption, ingestion, or direct contact. proposed definition of injury and illness On the basis of the record, OSHA was too broad and all encompassing finds that there is a broad consensus The former rule’s definitions of injury (see, e.g., Exs. 25, 33, 15: 95, 120, 156, among commenters that only qualified and illness captured a very broad range 174, 176, 199, 201, 213, 231, 273, 282, health care professionals should make of injuries, including minor injuries 301, 305, 318, 331, 346, 348, 375, 383, diagnoses and treat injured employees, such as scratches, bruises and so forth, 386, 395, 420, 424, 425, 430). The views and that state licensing agencies are best which the employer then tested for of the National Association of suited to determine who may practice work-relatedness and their relationship Manufacturers (NAM) are representative and the legal scope of that practice (see, to the recording criteria. The former of this view: e.g., Exs. 15: 31, 65, 95, 154, 184, 201, rule’s definition of illness was even 288, 308, 335, 349, 409, 425). The broader, including virtually any [a] second option is to re-examine the scope of the proposed definition of the term ‘‘injury definition in the final rule ensures that, abnormal occupational condition or or illness,’’ which appears to go well beyond although decisions about the disorder that was not an occupational the normal understanding of the medical recordability of a particular case may be injury. However, the recording of profession. That definition is so broad it made by a wide range of health care illnesses under the former rule was includes virtually any change in the status of professionals, the professionals making more inclusive than is the case for the the employee. In contrast, Dorland’s
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Illustrated Medical Dictionary defines the final rule’s definition of injury and screening mechanism for excluding term ‘‘illness’’ as a condition marked by illness because many such conditions minor injuries and illnesses, even before ‘‘pronounced deviation from the normal are caused, contributed to, or the status of the case vis-a-vis the healthy state.’’ Accordingly, the NAM significantly aggravated by events or geographic presumption or recording believes the proposed definition of the term ‘‘injury or illness’’ would be far more exposures in the work environment, and criteria was assessed. OSHA recognizes accurate and credible if it were modified to the Agency would be remiss if it did not that the proposed language referring to read substantially as follows ‘‘Any sign, collect injury and illness information any adverse change was too broad, and symptom, or laboratory abnormality which about conditions of these types that has returned to the former language evidences a significant adverse change in an meet one or more of the final rule’s requiring that the change reach the employee’s anatomical, biochemical, recording criteria. ‘‘abnormal condition’’ level. OSHA physiological, functional, or psychological In the final rule, OSHA has relied recognizes that this is still a broad condition, and which evidences a state of ill- primarily on the former rule’s concept definition—deliberately so. After health or a reasonable probability that ill- health will result (Exs. 25, 15: 305). of an abnormal condition or disorder. reviewing this issue thoroughly, OSHA The American Iron and Steel Instute (AISI) Although injury and illness are broadly finds that a system that initially defines also objected to the definition, stating that: defined, they capture only those injury and illness broadly and then OSHA also fails to provide any guidance as changes that reflect an adverse change applies a series of screening to what constitutes a ‘‘change’’ in an in the employee’s condition that is of mechanisms to narrow the number of employee’s condition. If a person is tired at some significance i.e. that reach the recordable incidents to those meeting the end of the day, does that constitute a level of an abnormal condition or OSHA and statutory criteria has several change in his physical condition? If a person disorder. For example, a mere change in advantages. First, by being inclusive, is grumpy at the end of a long shift, has he undergone a change in his psychological mood or experiencing normal end-of- this system avoids the problem condition? If a person gains weight, has his the-day tiredness would not be associated with any ‘‘narrow gate’’ ‘‘anatomical’’ condition ‘‘changed’’? OSHA’s considered an abnormal condition or approach: that some cases that should proposed definition would force employers disorder. Similarly, a cut or obvious be evaluated are lost even before the to address these questions but provides none wound, breathing problems, skin rashes, evaluation process begins. Second, this of the answers. * * * Finally, in addition to blood tests with abnormal results, and approach is consistent with the broad inviting gross intrusions into employees’ the like are clearly abnormal conditions definitions of these terms that OSHA lives, the concept of an ‘‘adverse’’ and disorders. Pain and other symptoms has used for more than 20 years, which psychological change is so vague and burdened with value judgments that it that are wholly subjective are also means that the approach is already simply is beyond definition. considered an abnormal condition or familiar to employers and their disorder. There is no need for the recordkeepers. Third, adding Several other commenters urged abnormal condition to include objective terminology like ‘‘significant’’ and OSHA to add the word ‘‘significant’’ signs to be considered an injury or ‘‘reasonable probability that ill-health and the phrase ‘‘and which evidences a illness. However, it is important for will result,’’ as commenters suggested, state of ill-health or a reasonable employers to remember that identifying would unnecessarily complicate the probability that ill-health will result’’ to a workplace incident as an occupational first step in the evaluation process. the final rule’s definition of injury or injury or illness is only the first step in Accordingly, the definition of injury illness (see, e.g., Exs. 15: 169, 174, 199, the determination an employer makes and illness in the final rule differs from 282, 305, 318, 346, 348, 375, 386, 420, about the recordability of a given case. the former definition only in minor 425). OSHA finds that this definition respects. The definition is based on the A number of commenters stated that provides an appropriate starting point former rule’s definitions, simply they did not understand the word for decision-making about recordability, combining the separate definitions of ‘‘functional’’ in the definition, and and that the requirements for injury and illness into a single category, particularly how its meaning differs determining which cases are work- to be consistent with the elimination of from that of the word ‘‘physiological’’ in related and which are not (section separate recording thresholds for the definition (see, e.g., Exs. 15: 313, 1904.5), for determining which work- occupational injuries and occupational 352, 353, 424). Several commenters also related cases reflect new injuries or illnesses. As discussed above, OSHA suggested the deletion from the illnesses rather than recurrences has elected to continue to use a broad definition of an occupational injury or (section 1904.6), and for determining definition of illness or injury. The illness any reference to signs, symptoms which new, work-related cases meet one definition in the final rule also makes it or laboratory abnormalities (see, e.g., or more of the general recording criteria clear that each injury and illness must Exs. 33, 15: 176, 231, 273, 301). The or the additional criteria (sections be evaluated for work-relatedness, to Pacific Maritime Association (Ex. 15: 1904.7 to 1904.12) together constitute a decide if it a new case, and to determine 95) suggested that OSHA delete the system that ensures that those cases that if it is recordable before a covered proposed definition of injury or illness should be recorded are captured and employer must enter the case in the and replace it with the following: ‘‘[an that minor injuries and illnesses are OSHA recordkeeping system. injury or illness] is any condition excluded. In response to the desire of diagnosed by a health care provider.’’ many commenters for greater clarity, ‘‘You’’ Two commenters suggested excluding OSHA has added language to the The last definition in the final rule, of psychological conditions from the definition of injury and illness to make the pronoun ‘‘you,’’ has been added definition of injury or illness (Exs. 15: it clear that many injuries and illnesses because the final rule uses the ‘‘you’’ 395, 424). A discussion of mental are not recordable, either because they form of the question-and-answer plain- conditions and OSHA’s reasons for are not work-related or because they do language format recommended in including them in the definition is not meet any of the final rule’s Federal plain-language guidance. included in the preamble discussion of recording criteria. ‘‘You,’’ as used in this rule, mean the work-relationship at section 1904.5, In general, all of those commenters employer, as that term is defined in the Determination of work relatedness. who opposed the proposed definition Act. This definition makes it clear that OSHA has decided to continue to wished OSHA to revise the definition so employers are responsible for include psychological conditions in the that it would provide an initial implementing the requirements of this
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final rule, as mandated by the The proposed revision of 29 CFR including those which administer Occupational Safety and Health Act of 1952.4 would have retained the same approved State-Plans. However, in 1970 (29 U.S.C. 651 et seq.) substantive requirements for the State- recent years, Federal OSHA has Plan States, but reflected the collected data only in the State-Plan VIII. Forms organizational shift of some States that wish to participate. For This section of the preamble includes recordkeeping responsibilities from the example, in 2000, the states of Oregon, a copy of the final forms package. For Bureau of Labor Statistics to OSHA in South Carolina, Washington, and a discussion of the contents, the old 1990. See also the memorandum of Wyoming elected not to participate in forms, the proposed forms, and understanding between OSHA and BLS the annual OSHA survey and employers comments to the proposed forms, refer effective July, 1990 (Ex. 6). in those States were not surveyed. to the preamble discussion of Subpart C. OSHA received no comments directed OSHA plans to continue to allow the 1904.6 Forms. The forms fit on 11″ by specifically to proposed section 1952.4. individual States to decide, on an 14″ legal sized paper. The forms do not Section 1952.4 of the final rule parallels annual basis, whether or not they will appear in the Federal Register due to the provisions of § 1904.37, State participate in the OSHA data collection. printing considerations. To obtain a Recordkeeping Regulations, the section If a State elects to participate, the copy contact OSHA’s Publications of the final rule implementing the State may either adopt and enforce the Office at (202) 693–1888, order the requirements proposed as § 1904.14, requirements of section 1904.41 as an forms from the OSHA Internet home Recordkeeping Under Approved State identical or more stringent State page (http://www.osha.gov) or download Plans. The discussion of the comments regulation, or may defer to the Federal the forms from the OSHA home page. and OSHA’s decisions on the few issues regulation and Federal enforcement associated with this section can be with regard to the mandatory nature of IX. State Plans found in the preamble discussion for the survey. If the State defers to the The 25 States and territories with § 1904.37, State Recordkeeping Federal section 1904.41 regulation, their own OSHA approved occupational Regulations. Section 1952.4 of the final OSHA’s authority to implement the safety and health plans must adopt a regulation differs from that of the former survey is not affected either by rule comparable to the 29 CFR part 1904 regulation in that (1) the final rule operational agreement with a State-Plan recordkeeping and reporting requires the States to consult with and State or by the granting of final State- occupational injuries and illnesses obtain approval from OSHA rather than Plan approval under section 18(e). regulation being published today, with BLS when promulgating supplementary OSHA’s authority under the Act to take the exception of the requirements of fatality, injury or illness recording and appropriate enforcement action if § 1904.41 Annual OSHA Injury and reporting requirements; (2) the final rule necessary to compel responses to the allows the State to grant variances from survey and to ensure the accuracy of the Illness Survey of Ten or More the fatality, injury and illness reporting data submitted by employers will be Employers. These 25 States are: Alaska, and recording requirements for State exercised in consultation with the State Arizona, California, Hawaii, Indiana, and local governments with Federal in State-Plan states. Iowa, Kentucky, Maryland, Michigan, approval; and (3) Federal OSHA rather Minnesota, Nevada, New Mexico, North X. Final Economic Analysis than the BLS is responsible for issuing Carolina, Oregon, Puerto Rico, South all private sector and federal variances 1. Introduction Carolina, Tennessee, Utah, Vermont, from the 29 CFR part 1904 Virginia, Virgin Islands, Washington, A. Background requirements. and Wyoming; and Connecticut and OSHA is revising its regulation on New York (for State and local OSHA Data Initiative Surveys Recording and Reporting Occupational Government employees only). In 1997, OSHA issued a final rule at Injuries and Illnesses, which is codified The former 29 CFR 1952.4 regulation § 1904.17, OSHA Surveys of 10 or More at 29 CFR part 1904. Executive Order required that States with approved Employers that required employers to 12866, issued by President Clinton on State-Plans under section 18 of the OSH submit occupational injury and illness September 30, 1993, requires OSHA to Act (29 U.S.C. 667) must adopt data to OSHA when sent a survey form. assess the benefits and costs of occupational injury and illness The 1904.17 rule enabled the Agency to regulations, and to design regulations to recording and reporting regulations conduct a mandatory survey of the 1904 impose the least burden on society which were ‘‘substantially identical’’ to data, which has been named the OSHA consistent with achieving the Agency’s those set forth in 29 CFR part 1904 Data Initiative. Section 1904.41 of the regulatory objective. This economic because the definitions used by the final rule, Annual OSHA Injury and analysis, therefore, was developed to Federal and State governments for Illness Survey of Ten or More describe the potential impacts of the recordkeeping purposes must be Employers, simply carries forward the final revisions to 29 CFR part 1904. identical to ensure the uniformity of the employer reporting requirements of the The final revisions to 29 CFR part collected information. In addition, former § 1904.17, with only minor 1904 reflect the results of studies of former § 1952.4 provided that employer editorial changes. occupational injury and illness variances or exceptions to State When OSHA issued the 1997 rule, the reporting and recordkeeping. One study recordkeeping or reporting requirements Agency determined that the States were of the accuracy and quality of in a State-Plan State would be approved not required to adopt a rule comparable occupational safety and health statistics by the Bureau of Labor Statistics. to the federal § 1904.17 rule (62 FR was conducted by the National Research Similarly, a State was permitted to 6441). Paragraph 1952.4(d) has been Council of the National Academy of require supplemental reporting or added to the final rule to continue to Sciences (NAS), under contract to the recordkeeping data, but that State was provide the States with the flexibility to Bureau of Labor Statistics (BLS).4 The required to obtain approval from the participate in the OSHA Data Initiative NAS report focused on changes to the Bureau of Labor Statistics to ensure that under the Federal requirements or the the additional data would not interfere State’s own regulation. At its outset, 4 National Research Council of the National Academy of Sciences, Counting Injuries and with ‘‘the primary uniform reporting Federal OSHA conducted the OSHA Illnesses in the Workplace: Proposal for a Better objectives.’’ data collection in all of the states, System, 1987.
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overall strategy for occupational health recordkeeping regulations and their specific provisions that affect the and safety statistics and reporting, accompanying guidelines. Although requirements for recording and rather than on specific methods for BLS continues to compile occupational reporting. Changes are summarized in improving the existing recordkeeping injury and illness statistics, OSHA Table X–1. system. Reform of the occupational determines what information needs to health and safety recordkeeping system be recorded by employers. (1) Editing and Format Changes was also the topic of a conference This economic analysis measures the Language and Structure of the Rule. convened by the Keystone Center, an potential regulatory impacts of the final The final regulation reflects a complete independent, non-profit organization revisions to 29 CFR part 1904. Much of rewriting of 29 CFR part 1904. The new that specializes in mediating multi-party the data for this analysis derives from a version of the rule is written in plain disputes in the areas of science, study conducted for OSHA by Meridian language, using a question and answer technology, environmental, and health Research.6 The data in the Meridian format. This style is designed to make concerns. The Keystone Conference study, however, have been updated to brought together 46 representatives from reflect more recent data on the numbers the rule clearer, more accessible, and labor unions, corporations, the health of establishments affected and on rates easier to understand. In addition, the professions, government agencies, of occupational illnesses and injuries, as final rule contains many questions that Congressional staff, and academia to well as the evidence submitted to the employers frequently ask about engage in a year-long dialogue. The record in the course of this rulemaking. recordkeeping, and it provides answers Conference’s final report5 was an to those questions. By including these important source of ideas for some of B. Overview of the Final Regulation questions and answers in the rule itself, the changes being made in OSHA’s final The final regulation revises an OSHA has provided employers with a recordkeeping rule. existing rule, Recording and Reporting readily available source of information In 1990, the Department of Labor Occupational Injuries and Illnesses (29 on how to record particular cases. This transferred from the Bureau of Labor CFR part 1904). Specific changes means that the quality of the data being Statistics (BLS) to OSHA the include changes in coverage, editorial recorded will be higher than was the responsibility for developing and formatting changes, and changes in case in the past.
TABLE X–1: CHANGES IN RECORDKEEPING REQUIREMENTS
Section of final Section of former or other rule source Rule change
1904.2 ...... 1904.16 ...... Cover parts of SICs 55, 57, 59, 65, 72, 73, 83, & 84; Exempt parts of SICs 52, 54, 76, 79, & 80. 1904.5 ...... Guidelines ...... Include specific exemptions from recording for certain cases, such as common cold or flu. Limit parking lot exemption to commuting. Require recording of preexisting injury or illness only if workplace exposure ‘‘significantly’’ aggravates the injury or illness. 1904.7 ...... 1904.12 ...... Replace term ‘‘lost workdays’’ in recording criteria with ‘‘days away’’ or ‘‘days restricted or transferred’’; count days as calendar days, rather than scheduled work days; cap count at 180 days; do not record restricted, transferred, or lost time occurring only on day of injury or illness as restricted work, job transfer, or a day away. Define routine duties for re- stricted work purposes as work activities done at least once per week. Define medical treatment beyond first aid to include all non-prescription drugs given at prescription strength and first and subsequent physical therapy or chiropractic treatment and to ex- clude use of Steri-StripsTM and hot or cold therapy. 1904.7 ...... (New) ...... Narrow criteria for recording illnesses by excluding minor illnesses. 1904.8 ...... (New) ...... Record all needlestick/sharps injury cases involving exposure to blood or other potentially infectious materials. 1904.10 ...... Interpretation ...... Record all hearing loss cases at 10 dB shift, rather than 25 dB shift. 1904.11 ...... Interpretation ...... Narrow criteria for recording positive tuberculosis test. 1904.12 ...... 1904.12 ...... Make criteria for recording MSD cases the same as those for all other injuries and ill- nesses. 1904.29 ...... 1904.2 ...... Replace old Log form with simplified Form 300. Require that cases be recorded within 7 calendar days rather than 6 working days. 1904.29 ...... 1904.4 ...... Require more information on new Form 301 than on former Form 101. 1904.29 ...... (New) ...... Define new category of ‘‘privacy concern cases’’ and require maintenance of separate, con- fidential list of names for such. 1904.29 ...... (New) ...... Require employer to protect privacy of injured or ill workers by withholding names, with cer- tain exceptions. 1904.32 ...... 1904.5 (New) ...... Post Annual Summary for 3 months rather than 1 month. Review records for accuracy at end of year. Require descriptive and statistical totals in Annual Summary. Require certification of accuracy of the Log by responsible company official. 1904.34 ...... 1904.11 ...... With change of ownership, require seller to turn over OSHA records to buyer. 1904.35 ...... (New) ...... Inform employees how to report injuries or illnesses to employer. Provide union representative access to some, but not all, Form 301 information. 1904.39 ...... 1904.8 ...... Delete requirement for common carrier and motor vehicle incidents to be reported.
6 Meridian Research, Inc., Economic Analysis of 5 Keystone Center, Keystone National Policy Proposed Changes to OSHA’s Recordkeeping Dialogue on Work-Related Illness and Injury Requirements (29 CFR 1904), 1991. Recording, 1989.
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The rule also has been completely (b) Changes to the OSHA Forms data elements are quantified in this restructured. Its provisions have been Former rule. The former rule required economic analysis. put into a logical sequence, with topics the employer to maintain two forms, the (c) Changes in the Recording Criteria addressed as an employer would OSHA 200 Log and Summary of encounter them when complying with Occupational Injuries and Illnesses (one The final rule includes a number of the rule. The numbering of sections form including both a Log and changes that will affect the number of within 29 CFR part 1904 has been Summary), and the OSHA 101 recorded cases, and thus potentially entirely revised. Supplementary Record of Occupational affect the costs and costs savings The final rule includes considerable Injuries and Illnesses. The employee associated with the regulation. Some of detail not found in the former rule. This who supervised the production of the these changes will result in more cases detail generally reflects interpretations annual summary was required to certify being recorded, as follows: (1) Changes that OSHA has made over time. By it. to the definitions of medical treatment including these in the rule itself, OSHA Final rule. The final rule requires the and first aid, (2) change to the criterion intends to make the rule far clearer. employer to maintain up to four records: for recording cases of hearing loss, and Interpretations and related details are the OSHA 300 Log of Work-Related (3) change to the criterion for recording formatted as check lists, for ease of Injuries and Illnesses, the OSHA 300-A needlestick and sharps injuries. interpretation. Summary of Work-Related Injuries and Other changes will result in fewer Illnesses, the OSHA 301 Injury and (2) Specific Changes in Regulatory cases being recorded, as follows: (1) Provisions Illness Incident Report, and, if one or more employees experiences an injury Exemptions from the requirement to (a) Changes in Coverage or illness case classified as a ‘‘privacy consider certain cases work-related, (2) Former rule. The former rule concern’’ case, a confidential list of elimination of different recording exempted all employers with 10 or those employees. (See discussion of criteria for injuries and illnesses, (3) fewer employees and all employers in privacy provisions below.) changes to the requirements for specific low-hazard retail and service Change. The new OSHA 300 Log is recording injuries and illnesses with industry sectors from routinely keeping smaller than the Former OSHA 200 Log, days away or job restriction/transfer, (4) OSHA records. The industry fits on legal sized pages (8 1⁄2’’ x 14’’), changes to the criteria for recording exemptions were based on injury and has fewer columns and a more logical, cases of tuberculosis, and (5) illness data at the 2-digit SIC code level. user friendly design. Each injury and elimination of separate recording Final rule. The final rule continues illness must be recorded within 7 criteria for musculoskeletal disorders. the former rule’s exemption of all calendar days, rather than the 6 working Because the final rule makes a employers with 10 or fewer employees days allowed under the former rule. number of changes, some of which from routine recordkeeping Although the 300 Log requires increase the number of recordable requirements. The final rule also essentially the same information as the injuries and illnesses and some of exempts all employers in specific lower- former 200 Log, it is easier to complete, which decrease the number of hazard retail and service industry which will result in cost savings for recordable cases, it is difficult to sectors, as the former rule did, from employers. These savings are quantified estimate the precise impact of each maintaining OSHA records routinely. in this economic analysis. change. OSHA expects that these The final rule exempts 3-digit SIC The OSHA 300–A Summary Form changes, with two exceptions, will industries if their average lost workday replaces the summary portion of the generally have the effect of offsetting injury (LWDI) rate was at or below 75% former OSHA 200 Log and Summary each other, with the result that of the overall private sector LWDI Form. Each covered employer must approximately the same number of average rate in the most recent BLS complete the summary at the end of the injury and illness cases will be recorded occupational injury and illness data. year and post it for 3 months, while the under the final rule as were recorded Change. Updating the list of exempted former rule required posting for one under the former rule. The costs and industry categories by relying on 3-digit, month. The longer posting period will cost savings associated with each small rather than 2-digit, data in the final rule result in only minimal additional costs. definitional change have not been results in 17 formerly exempt industries The final rule also requires the quantified in this economic analysis. being covered under the final rule (see employer to review the records at year However, the changes made in the Table X–2). Employers in 16 industries end for accuracy before summarizing recording of hearing loss cases and the that were covered by the former rule are them, requires additional certification of recording of needlestick and sharps exempted by the final rule (see Table X– accuracy by a company executive, and injury cases will result in quantifiable 3). The exemptions in the final rule are requires additional data on the average increases in the number of recorded better targeted than those in the former employment and hours worked at the injuries. The cost effects of these rule, because high-hazard 3-digit establishment. These changes will result changes are specifically identified in industries embedded within lower- in higher quality data, and will also add this economic analysis. hazard 2-digit industries are not costs for employers. These costs are exempted, while low-hazard 3-digit quantified in this economic analysis. OSHA recognizes that individual industries embedded within higher- The OSHA 301 Incident Report is employers will be affected differently by hazard 2-digit industries are exempted. only slightly different from the OSHA the changes made in the final rule and Employers in the newly covered 101 Form that it replaces. Some data that some employers will record more industries will experience additional elements have been added to the form. cases under the final rule while others costs and benefits from these new In addition, the form has been will record fewer. OSHA also finds that requirements, while newly exempted redesigned to obtain better responses to the overall effect of the changes made to employers will also experience changes the questions and to accommodate the final rule is to greatly ease the in costs and benefits. These costs and employee access to the forms while still determination of recordability, and has benefits are quantified in this economic protecting privacy (see discussion quantified these cost savings in this analysis. below). Costs of recording additional economic analysis.
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(i) Changes to the Determination of Final rule. Under the final rule, the none of the other recording criteria are Work-Relationship employer is not required to determine met, the case is not recordable. The final rule continues to require the Former rule. Under the former rule, whether a case is an injury or illness to employer to count days away from work work-relationship was established if decide whether or not to record the and days of restricted work/job transfer. work either caused or contributed to the case. A case is recordable if it results in However, the days are counted using injury or illness, or aggravated a pre- death, days away from work, job calendar days, and employers may stop existing condition. Injuries and illnesses restriction or transfer, medical treatment the count at 180 days. The employer that occurred on the employer’s beyond first aid, loss of consciousness, or if the case is a significant injury or also may stop counting restricted days premises were presumed to be work- illness diagnosed by a physician or if the employer permanently modifies related, with three exceptions: cases that other licensed health care professional. the employee’s job in a way that occurred in a parking lot or recreational Additional criteria are included for eliminate the routine functions the facility, cases that occurred while the cases of hearing loss, tuberculosis, and employee was restricted from employee was present at the workplace needlestick injuries and the rule performing. as a member of the general public and clarifies how to record musculoskeletal Change. The final rule shifts the focus not as an employee, and cases where disorders and cases involving medical of the definition of restricted work to injury or illness symptoms arose at work removal or work restriction under the routine functions of the job and but were the result of a non-work- OSHA’s standards. away from the former rule’s focus on related injury or illness were not Change. The new general recording any activity the injured or ill employee required to be recorded. criteria eliminate the recording of minor might have performed during the work Final rule. Work relationship is illness cases, which will result in fewer year, and eliminates the requirement to established if work either caused or cases being recorded by employers, and record cases that involve restrictions contributed to the injury or illness, or lower costs. The new criteria for only on the day of injury or illness. significantly aggravated a pre-existing recording hearing loss and needlestick These changes will result in fewer cases condition. The final rule continues the cases will increase the number of cases being recorded, and will have the effect former rule’s geographic presumption of and the costs associated with recording. of reducing costs for employers. work relationship but adds several The final rule’s changes to the method additional exceptions to the need to (iii) Days Away and Job Restriction/ of counting days, i.e., relying on record cases involving: voluntary Transfer calendar days instead of scheduled participation in wellness programs, Former rule. Under the former rule, work days, will simplify the counting eating and drinking food or beverages employers were required to record lost requirements and produce more reliable for personal consumption, intentionally workday cases, which were defined as information on injury and illness self-inflicted wounds, personal any case that resulted in days away from severity. Both the change to the calendar grooming, or the common cold or flu. work and/or days of restricted work or day counting method and the capping of The final rule also contains an job transfer. Restricted work included days away and days restricted or exception that limits the recording of any case when because of injury or transferred at 180 days will have the mental illness cases. illness (1) the employee was assigned to effect of reducing costs for employers. Change. The final rule changes the another job on a temporary basis, (2) the requirement to record cases in which employee worked at a permanent job (iv) Changes to the Definitions of any degree of aggravation of a less than full time, or (3) the employee Medical Treatment and First Aid preexisting injury or illness has worked at his or her permanently Former rule. The former rule defined occurred; now, the work environment assigned job but could not perform his medical treatment as any treatment, must have significantly aggravated a or her routine duties. Routine duties other than first aid treatment, pre-existing injury or illness before the were defined as any activity the administered to injured or ill case becomes work-related. The final employee would be expected to perform employees. Medical treatment involved rule also adds several new exceptions to even once during the course of the year. the provision of medical or surgical care the geographic presumption of work The employer was required to record for injuries through the application of relationship. Both of these changes will any case that involved restricted work, procedures or systematic therapeutic result in fewer cases being recorded even if the restriction occurred only on measures. under the final rule. the day the injury or illness occurred. The former regulation defined first aid Employers were also required to as ‘‘any one-time treatment, and any (ii) Elimination of Different Recording count days as the number of scheduled follow up visit for the purpose of Criteria for Injuries and Illnesses days away or restricted, i.e., to use a observation, of minor scratches, cuts, Former rule. Under the former rule, counting system that included only burns, splinters, and so forth, which do employers were required to record all scheduled work days and excluded any not ordinarily require medical care. work-related deaths, all illnesses, and days off, such as weekends and days the Such one-time treatment, and follow up injuries that resulted in days away from plant was closed. visits for the purpose of observation are work, restricted work, transfer to Final Rule. The final rule continues to considered first aid even though another job, medical treatment beyond require employers to record cases with provided by a physician or registered first aid, or loss of consciousness. The days away from work, restricted work or professional personnel.’’ employer was required to decide if the transfer to another job. For restricted The former Recordkeeping Guidelines case was either an injury or illness; work/job transfer, the final rule focuses provided two lists of treatments injuries included all back cases and any on whether or not the employee is employers could use to determine case caused by an instantaneous event, permitted to perform his or her routine whether a particular treatment was first while illnesses were any abnormal job functions, defined as the duties he aid or medical treatment for condition or disorder caused by a non- or she would have performed at least recordkeeping purposes. For example, instantaneous event. The employer was once per week before the injury or the use of prescription drugs was required to record every illness case, illness. If the work restriction is limited generally considered medical treatment, regardless of severity. to the day of the injury or illness, and except when only a single dose was
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prescribed. Physical therapy, hot or cold presumed if the employee was exposed Changes from the Impact on number therapy, or soaking therapy was former rule to the final of cases recorded to noise at or above an 8-hour time considered medical treatment if it was rule weighted average of 85 decibels. used on a second or subsequent visit to The employer must check a separate Second degree burns Fewer cases box on the OSHA Log to identify medical personnel. Treatment of any are now not automati- third or second degree burn was cally recordable. hearing loss cases. considered medical treatment. The Change. The additional check box former rule’s lists provided a useful The overall effect of the changes to will result in improved statistical data starting point for determining which the definitions of medical treatment and on occupational hearing loss. The treatments were first aid or medical first aid is difficult to determine. OSHA change to a more sensitive threshold (10 treatment, but also caused some believes that they generally offset each decibel shift rather than 25 decibel shift) confusion because, if a particular other, but data to confirm this are not for recording occupational hearing loss treatment was not on either list, the available. will result in the recording of additional employer was not sure how to classify cases. Based on audiometric data the treatment. (v) Changes in the Recording of collected from 22 companies in SICs 20 Needlestick and Sharps Injuries through 29, 33, 34, 35, 39, 49, and 90, Final rule. The final rule defines Former rule. Under the former rule, an OSHA estimated that, with the new medical treatment as the management threshold, 250,000 more workers in and care of a patient to combat disease employer was required to record a needlestick or sharps injury involving manufacturing and 25,000 more workers or disorder. For the purposes of Part elsewhere in general industry would 1904, medical treatment does not human blood or other potentially infectious material if the case resulted sustain recordable hearing loss include: visits to a physician or other annually. The costs associated with this licensed health care professional solely in death, days away from work, restricted work, medical treatment increase have been quantified in this for observation or counseling; the economic analysis. conduct of diagnostic procedures, such beyond first aid, or loss of consciousness, or if the employee as x-rays and blood tests, including the (vii) Changes in the Recording of seroconverted (contracted HIV or administration of prescription Tuberculosis hepatitis infection). medications used solely for diagnostic Final rule. Under the final rule, an Former rule. Under OSHA’s purposes (e.g., eye drops to dilate employer is required to record all interpretation of the former rule, an pupils); or first aid. needlestick or sharps injuries involving employer was required to record an The final rule then defines first aid by human blood or other potentially active case of tuberculosis (TB) or a listing 14 first aid treatments, such as infectious material. These cases are positive TB skin test. If the employee using non-prescription drugs at non- recorded as privacy concern cases. was employed in one of five high risk prescription strength, using bandages or Change. The final rule will require the industries, as defined by the Centers for butterfly bandages, using hot or cold recording of an additional estimated Disease Control and Prevention (CDC), therapy, using splints or slings to 501,640 needlestick and sharps injury the case was presumed to be work transport an accident victim, and cases. The costs associated with this related. drinking liquids for relief of heat stress. change have been quantified in this Final rule. Under the final rule, a case of tuberculosis is recorded if the Change. The final rule changes the economic analysis. This change will employee has active TB or has a positive definitions of which treatments are also significantly simplify recording for skin test. The case is considered work- considered first aid and medical those employers who recorded 88,925 related if the employee has been treatment. Each change will result in needlestick and sharps injuries under occupationally exposed at work to some change in the number of cases that the former rule, resulting in cost savings another person (client, patient, co- are recorded, as shown in the following for those cases. These cost savings have worker) with a known, active case of table. been quantified in this economic analysis. tuberculosis. The employer may subsequently remove or line out the Changes from the (vi) Changes in the Recording of Hearing Impact on number case if a medical investigation shows former rule to the final of cases recorded Loss rule that the case was caused by a non- Former rule. Under OSHA’s occupational exposure. Medical treatment now More cases interpretations of the former rule, an Change. The final rule eliminates the includes all non-pre- employer was required to record a ‘‘special industries’’ presumption of scription drugs at pre- hearing loss of 25 decibels in one or work-relatedness. OSHA believes that scription strength and both ears, averaged over three any dose of a pre- this change will reduce the number of scription drug. frequencies, compared to the recorded TB cases, and thus reduce First aid now includes Fewer cases employee’s baseline audiogram. Work- costs somewhat. However, data to hot or cold therapy, relatedness was presumed if the estimate the cost savings associated regardless of how employee was exposed to noise at or with this change are not available. often applied. above an 8-hour time weighted average Medical treatment now More cases of 85 decibels. (viii) Changes in the Recording of includes any physical Final rule. The final rule requires an Musculoskeletal Disorders (MSD) therapy/chiropractic employer to record any hearing loss that Former rule. Under the former rule, treatment. reaches the level of a standard threshold MSD cases were recorded differently First aid now includes Fewer cases shift (STS), defined by the occupational use of butterfly ban- based on whether they were dages and Steri-Strips noise standard as a 10 decibel shift in occupational injuries or occupational for any purpose. hearing, averaged over three illnesses. If the case was an MSD injury, Medical treatment now More cases frequencies, in one or both ears, it was recorded if it resulted in days includes any use of compared to the employee’s baseline away from work, restricted work, job oxygen. audiogram. Work-relatedness is transfer, or medical treatment beyond
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first aid. If the case was an MSD illness, Change. The final rule differs from the providing copies. With certain it was recorded if it resulted in: former rule by requiring the prior owner exceptions, if the employer provides the (1) Objective findings: to transfer the records to the new owner. information to anyone other than a —A diagnosis by a health care provider Any new costs imposed by this government representative, an (carpal tunnel, tendinitis, etc.) requirement are extremely small and employee, a former employee, or an —Positive test results (Tinel’s, have not been quantified in this employee representative, the names and Finkelstein’s, Phalen’s, EMG) economic analysis. other personally identifying information —Signs (redness, swelling, loss of must be removed from the forms. In (e) Employee Involvement motion, deformity) addition, separation of the summary OR Former rule. The former rule involved form will eliminate accidental (2) Symptoms combined with days employees in the recordkeeping process disclosure of employee names during away from work, restricted work, or in two ways: through posting of the the posting of the summary information. medical treatment beyond first aid. annual summary of occupational Change. The final rule protects Injury MSD cases were considered to injuries and illnesses for one month, injured or ill employees’ privacy in be ‘‘new cases’’ if they resulted from and by allowing access to the OSHA 200 several ways, e.g., by limiting the new (additional) workplace events or Log by employees, former employees, distribution of injured or ill employees’ exposures. Illness MSD cases were and their representatives. names, by not recording the employee’s treated in the same way or were Final rule. The final rule involves name in privacy concern cases, and by subjected to a ‘‘30 day rule’’ whereby if employees in the process to a greater providing employee representatives an ill employee did not return to the extent than formerly: it requires the access to only part of the Form 301. The health care provider for care after 30 employer to set up a system for costs of keeping a separate, confidential days the case was considered resolved. accepting injury and illness reports from list for privacy concern cases have been If the same employee reported later with employees and requires the employer to quantified in the economic analysis. additional MSD problems, the case was tell each employee how to report a work-related injury or illness. The final (g) Computerized and Centralized evaluated for recordability as a new Records illness. rule also requires the employer to post Final rule. Under the final rule, MSD the annual summary for three months. Former rule. The former rule allowed cases are recorded using the same Employees, former employees, and their the employer to keep the OSHA 200 Log criteria as those for other injuries and representatives have the right to one free on computer equipment or at a location illnesses. Cases are recorded if they copy of the 300 Log, the injured or ill other than the establishment, and result in days away from work, employee or a personal representative required that the employer have restricted work/job transfer, or medical has a right to one free copy of the 301 available a copy of the Log current to treatment beyond first aid. Recurrences (Incident Report) for his or her case, and within 45 calendar days. The former are also handled just as other types of authorized employee representatives rule had no provisions for keeping the injuries and illnesses are. have a right to one free copy of a portion OSHA 101 form off site or on computer The employer must check a separate of the 301 form for all injuries and equipment. box on the Log for MSD cases to permit illnesses at the establishment he or she Final rule. The final rule allows all separate data on these disorders to be represents. forms to be kept on computer collected. Change. The final rule will improve equipment or at an alternate location, Change. The final rule simplifies the employee reporting of work-related providing the employer can produce the recording of MSDs and collects injuries and illnesses and allow data when it is needed to provide access improved statistical information on improved access to the information in to a government inspector, employee, or these disorders on the 300 Log. Because the records, including one free copy of an employee representative. There is no the final rule does not require the each record requested. OSHA finds that need to keep records at the automatic recording of diagnosed these provisions will increase costs for establishment at all times. disorders, physical signs, and positive employers, and these costs have been Change. The final rule provides the test results, it will generally require quantified in the economic analysis. employer with greater flexibility for employers to record fewer MSD cases, keeping records on computer equipment (f) Privacy Protections resulting in some cost savings. However, and at off-site locations. These costs the magnitude of these cost savings is Former rule. The former rule had no savings have been quantified in the not known. provisions to protect the privacy of economic analysis. injured or ill workers when a coworker (d) Change in Ownership or employee representative was allowed Reporting of Fatality and Catastrophe Former rule. Under the former rule an access to the OSHA 200 Log. The Incidents employer who acquired a business employer was required to provide the Former rule. The former rule required establishment was required to retain the Log with names intact. the employer to report any workplace OSHA records of the prior owner. Each Final rule. The final rule protects the fatality, or any incident involving the owner was responsible for the records privacy of injured or ill workers when hospitalization of 3 or more employees only for that period of the year that each a coworker or employee representative to OSHA within 8 hours. owned the business. accesses the records by prohibiting the Final rule. The final rule requires the Final rule. Under the final rule, when employer from entering the employee’s employer to report any workplace a business establishment changes name for certain ‘‘privacy concern’’ fatality, or any incident involving the owners, each owner is responsible for cases. A separate, confidential list of hospitalization of 3 or more employees the OSHA records only for that period case numbers and employee names to OSHA within 8 hours. The final rule of the year that each owned the must be kept for these cases. An does not require the employer to report business. The prior owner is required to employee representative can access only to OSHA fatal or multiple transfer the records to the new owner, part of the information from the 301 hospitalization incidents that occur on and the new owner is responsible for form, and the employer must withhold commercial airlines, trains and buses; or retaining those records. the remainder of the information when fatality/catastrophe incidents from a
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motor vehicle accident on a public changes, by two-digit SICs, are as Food Stores (SIC 54), highway. follows: Miscellaneous Repair Services (SIC 76), Industries covered under the former Change. The final rule requires Amusement and Recreation Services employers to report fewer incidents to rule that would continue to be covered 7 (SIC 79), and OSHA, which will result in cost savings. under the final rule : These cost savings have not been Agriculture (SIC 01–02), Health Services (SIC 80). quantified in the economic analysis. Forestry, and Fishing (SIC 07–09), Oil & Gas Extraction (SIC 13), Table X–2 shows the specific three- (3) Qualitative Overview of Impacts Sulfur Mining (SIC 1479, part), digit industries that were formerly exempted and to which the final rule Forms Construction (SIC 15–17), Manufacturing (SIC 20–39), will extend coverage. Table X–3 shows The largest impact of the final rule’s Transportation (SIC 41–42), the specific three-digit industries that revised provisions on recordkeeping at United States Postal Service (SIC 43), were formerly covered and which the the individual establishment will be in Public Utilities (SIC 44–49), final rule will exempt. the direction of cost savings and will Wholesale Trade (SIC 50–51), General Merchandise Stores (SIC 53), Exempting an industry means that come from the plain language rewriting employers with establishments in that of the rule itself and the new forms. Hotels and Other Lodging Places (SIC industry do not have to keep the OSHA These changes in language, 70), and Form 300 (the Log of Occupational organization, and format will reduce the Automotive Repair, Services, and Injuries and Illnesses), the Annual burden on employers and recordkeepers Parking (SIC 75). in several ways. The clearer language Industries exempted under the former Summary (OSHA 300-A), and OSHA and streamlining will allow the entire rule that would continue to be Form 301 (the Incident Record) or their rule to be read more quickly and with exempted: equivalents. The final rule does not greater comprehension. It will also be Apparel and Accessory Stores (SIC 56), exempt establishments from the possible to obtain a good understanding Eating and Drinking Places (SIC 58), obligation to report fatalities or multiple of the rule in a single reading (which Depository Institutions (SIC 60), hospitalization accidents to OSHA, nor will be particularly helpful for Nondepository Institutions (SIC 61), does it exempt an employer from the establishments with very few or no Security and Commodity Brokers (SIC requirement to maintain records if recordable incidents). Finally, the 62), notified by the Bureau of Labor organization and format make it far Insurance Carriers (SIC 63), Statistics that it is a participant in the easier to get quick answers to specific Insurance Agents, Brokers, and Services annual Occupational Injuries and questions, because the answers are part (SIC 64), Illnesses Survey or by OSHA that it has Holding and Other Investment Offices of the final rule itself rather than being been selected to report under the OSHA included in a separate document, the (SIC 67), Motion Pictures (SIC 78), Data Initiative. Recordkeeping Guidelines for Legal Services (SIC 81), Occupational Injuries and Illnesses (the B. Characteristics of Covered Educational Services (SIC 82), Establishments ‘‘Blue Book’’). Membership Organizations (SIC 86), 2. Industry Profile Engineering, Accounting, Research, (1) Number of Establishments Management & Related Services (SIC OSHA’s former regulation for 87), and Table X–4 shows the estimated Recording and Reporting Occupational Services, not elsewhere classified (SIC number of establishments, by industry, Injuries and Illnesses, 29 CFR part 1904, 89). covered by the final regulation. Data for covered most industries in the economy. Two-digit industries that were not agriculture (SICs 01 and 02) are taken The principal exceptions were the covered under the former rule but will from the 1997 Census of Agriculture. finance, insurance, and real estate have some three-digit industries within Data for the remaining SICs are taken sector, some retail trade industries, and them covered under the final rule: from a compilation of 1996 data by the some service industries. This chapter Automobile Dealers (SIC 55), U.S. Census Bureau for the Small describes the changes in coverage, as Furniture Stores (SIC 57), Business Administration (SBA) to well as key characteristics of the Miscellaneous Retail Stores (SIC 59), reflect parent company control of industries that will be covered under Real Estate (SIC 65), establishments. Firms that have 10 or the final rule. Personal Services (SIC 72), fewer employees,8 which are exempt A. Changes in Industries Covered Business Services (SIC 73), from the final regulation because of Social Services (SIC 83), and their size, are excluded from Table X– The former rule (with one exception) Museums (SIC 84). 4. covered or exempted industries at the Two-digit industries that were two-digit SIC level. The final rule fine covered under the former rule but will tunes this coverage in the finance, have some or all three-digit industries insurance, and real estate, retail trade, within them exempted under the final and service sectors by extending rule: 8 The SBA data have size classes of 5–9 coverage to some high-hazard three-digit Building Materials & Garden Supplies employees and 10–19 employees. Establishments SICs in two-digit SICs that were not with 10 employees were assumed to account for ten (SIC 52), covered by the former rule and percent of the 10–19-employee size class. Since the distribution is skewed by size, rather than being exempting some low-hazard three-digit 7 In addition, state and local government uniform, this assumption slightly overstates the SICs in two-digit industries that were employers will continue to be covered in State Plan number of establishments covered by the covered by the former rule. These states. regulation.
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TABLE X–2.—FORMERLY EXEMPT INDUSTRIES THAT THE FINAL RECORDKEEPING RULE COVERS
Two-digit industry* Three-digit industry that OSHA’s final rule covers
SIC 55 ...... SIC 553, Auto and Home Supply Stores SIC 555, Boat Dealers SIC 556, Recreational Vehicle Dealers SIC 57 ...... SIC 571, Home Furniture and Furnishings Stores SIC 572, Household Appliance Stores SIC 59 ...... SIC 593, Used Merchandise Stores SIC 596, Nonstore Retailers SIC 598, Fuel Dealers SIC 65 ...... SIC 651, Real Estate Operators and Lessors SIC 655, Subdividers and Developers SIC 72 ...... SIC 721, Laundry, Cleaning, and Garment Service SIC 73 ...... SIC 734, Services to Buildings SIC 735, Miscellaneous Equipment Rental/Leasing SIC 736, Personnel SIC 83 ...... SIC 833, Job Training and Related Services SIC 836, Residential Care SIC 84 ...... SIC 842, Botanical and Zoological Gardens * 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
Two-digit industry Three-digit industry that OSHA’s final rule exempts
SIC 52 ...... SIC 525, Hardware Stores SIC 54 ...... SIC 542, Meat and Fish Markets SIC 544, Candy, Nut, and Confectionery Stores SIC 545, Dairy Product Stores SIC 546, Retail Bakeries SIC 549, Miscellaneous Food Stores SIC 76 ...... SIC 764, Reupholstry and Furniture Repair SIC 79 ...... SIC 791, Dance Studios, Schools, and Halls SIC 792, Producers, Orchestras, and Entertainers SIC 793, Bowling Centers SIC 80 ...... SIC 801, Offices and Clinics of Medical Doctors SIC 802, Offices and Clinics of Dentists SIC 803, Offices of Osteopathic Physicians SIC 804, Offices of Other Health Practitioners SIC 807, Medical and Dental Laboratories SIC 809, Health and Allied Services, nec
TABLE X–4—ESTABLISHMENTS REQUIRED BY THE FINAL RULE ROUTINELY TO KEEP OCCUPATIONAL INJURY/ILLNESS RECORDS
Estimated number of es- Estimated number of re- Industry tablishments required to cordable cases annually establishments keep records in these
Agricultural Production ...... SIC 01–02 56,367 46,770 Agricultural Svcs, Forestry, Fishing ...... SIC 07–09 16,271 54,022 Oil and Gas Extraction ...... SIC 13 5,367 13,851 Construction ...... SIC 15–17 114,470 415,500 Manufacturing ...... SIC 20–39 196,643 2,060,900 Transportation, Postal, Utilities ...... SIC 41–49 157,390 516,653 Wholesale Trade ...... SIC 50–51 219,678 403,240 Building Materials/Garden Supplies ...... SIC 52a 22,339 56,091 General Merchandise Stores ...... SIC 53 28,519 180,909 Food Stores ...... SIC 54b 64,443 126,780 Automotive Dealers ...... SIC 55c 23,342 22,662 Furniture Stores ...... SIC 57d 25,580 24,302 Miscellaneous Retail Stores ...... SIC 59e 19,913 23,750 Real Estate ...... SIC 65f 17,925 22,702 Hotels and Other Lodging Places ...... SIC 70 23,956 103,423 Personal Services ...... SIC 72g 14,768 18,072 Business Services ...... SIC 73h 51,525 58,659 Automotive Repair, Svcs, Parking ...... SIC 75 41,575 40,359 Miscellaneous Repair Services ...... SIC 76i 12,294 17,686 Amusement and Recreation Services ...... SIC 79j 20,602 79,623
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TABLE X–4—ESTABLISHMENTS REQUIRED BY THE FINAL RULE ROUTINELY TO KEEP OCCUPATIONAL INJURY/ILLNESS RECORDS—Continued
Estimated number of es- Estimated number of re- Industry tablishments required to cordable cases annually establishments keep records in these
Health Services ...... SIC 80k 38,996 995,122l Social Services ...... SIC 83m 25,998 25,349 Museums ...... SIC 84n 236 2,408 State and Local Government Employers in State Plan States ...... 167,788 519,646
TOTAL: Final Ruleo ...... 1,365,985 5,828,477
TOTAL: Former Ruleo ...... 1,306,418 4,907,081 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). b Consists of Grocery Stores (SIC 541) and Fruit and Vegetable Markets (SIC 543). c Consists of Auto and Home Supply Stores (SIC 553); Boat Dealers (SIC 555); and Recreational Vehicle Dealers (SIC 556). d Consists of Furniture & Homefurnishings Stores (SIC 571) and Household Appliance Stores (SIC 572). e Consists of Used Merchandise Stores (SIC 593); Nonstore Retailers (SIC 596); and Fuel Dealers (SIC 598). f Consists of Real Estate Operators and Lessors (SIC 651) and Subdividers and Developers (SIC 655). g Consists of Laundry, Cleaning, and Garment Services (SIC 721). h Consists of Services to Buildings (SIC 734); Miscellaneous Equipment Rental and Leasing (SIC 735); and Personnel Supply Services (SIC 736). i Consists of Electrical Repair Shops (SIC 762); Watch, Clock and Jewelry Repair (SIC 763); and Miscellaneous Repair Shops (SIC 769). j Consists of Commercial Sports (SIC 794) and Miscellaneous Amusement & Recreation Services (SIC 799). k Consists of Nursing and Personal Care Facilities (SIC 805); Hospitals (SIC 806); and Home Health Care Services (SIC 808). l Includes estimated 501,640 needlesticks and sharps not now recordable that are covered by the final rule. m Consists of Job Training and Related Services (SIC 833) and Residential Care (SIC 836). n Consists of Botanical and Zoological Gardens (SIC 842). o Sulfur mining (part of SIC 1479) is excluded because information is not available. Sources: U.S. Census Bureau compilation of 1996 establishment and employment data by parent firm, performed for the Small Business Ad- ministration; Bureau of Labor Statistics 1998 Survey of Occupational Injuries and Illnesses.
The final regulation covers an SIC 80 is covered by the final rule, this on methodology and estimates provided estimated total of 1,365,985 figure is likely to overstate the number in a study conducted for OSHA by establishments belonging to 699,712 of recordable cases to some extent. Meridian Research, Inc. The Meridian employers. The number of Exclusive of the 275,000 additional analysis has been updated to reflect establishments covered by the rule hearing loss cases and the 501,640 more recent data as well as changes that represents a net increase of 4.6 percent additional needlestick and sharps OSHA has made to the regulation in the over the 1,306,418 establishments injuries, the final regulation will capture interval since the Meridian report was covered by the former regulation. This an estimated 5,051,837 cases annually. prepared, and to reflect comments on increase in the number of This is an increase of 3 percent over the the proposed rule. establishments covered results from the 4,907,081 cases captured by the former The great majority of the changes made to the scope of the final rule. This increase in capture reflects establishments covered by the rule are rule. changes in the scope of the rule that are small, i.e., have fewer than 20 designed to target the regulation more employees. On average, a covered (2) Number of Recordable Cases precisely to high-risk industries in the establishment records 4 occupational Table X–4 also shows the number of retail and service sectors of the injury and illness cases per year, and recordable cases of occupational injury economy. This increase in the rule’s the recordkeeping decisions involved in and illness, by industry, covered by the capture efficiency, or cost-effectiveness, these cases are generally straightforward final regulation. These are taken from is reflected by the fact that the and easy to make (e.g., the injuries unpublished data from the 1998 BLS industries that are newly covered under involve lacerations, slips and falls, or Survey of Occupational Injury and the final rule average 2.6 times as many fractures). Unlike other OSHA rules, the Illness. cases per covered establishment as the recordkeeping rule does not require The final regulation will annually industries the final rule would newly employers to implement engineering capture an estimated total of 5,828,477 exempt. controls, change employee work occupational injury and illness cases. Of practices, provide protective equipment, these cases, 275,000 represent 3. Costs or take other costly actions to protect additional hearing loss cases and A. Overview of the Analysis their employees’ safety and health. 501,640 represent additional needlestick Instead, the costs of this rule are based and sharps injuries anticipated to occur (1) Background on the costs associated with the time the in SIC 80. The needlestick and sharps This chapter assesses the changes in recordkeeper and others spend in number represents 85 percent of the compliance costs associated with the maintaining the records and overseeing estimated 590,165 needlestick and changes the Occupational Safety and the recordkeeping system. OSHA’s sharps injuries occurring in SIC 80 (63 Health Administration (OSHA) is estimates of the time necessary to FR 48250, September 9, 1998; Ex. 3– making to 29 CFR part 1904, the perform each step of the recordkeeping 172V, Docket No. H370A), since OSHA Agency’s Recording and Reporting process, including the time to consider estimates that approximately 15 percent Occupational Injuries and Illnesses rule, and record each case, maintain the Log, of such injuries were being recorded and its associated forms and and perform other recordkeeping tasks, under the former rule. Since not all of instructions. The analysis relies in part have been reviewed and commented on
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by the public and approved by the rule, impacts are the total cost of purposes are considerably more detailed Office of Management and Budget in compliance employers will incur than those required by OSHA. Even connection with the process required by under the final rule. OSHA recordable injuries and illnesses the Paperwork Reduction Act of 1995. In examining the costs of this rule, it that turn out, in the end, not to be Even if OSHA’s estimates of the time is critical to remember certain basic workers’ compensation claims are likely involved in making, determining, and characteristics of affected facilities. On to be investigated to determine their overseeing the records involved in the average, facilities subject to status in relation to the workers’ recordkeeping system are low, for recordkeeping have about 50 employees compensation system. As a result, much example, by a factor of two or so, the and record about four injuries and of the basic data gathering necessary to costs imposed by the final rule are low illnesses a year. Because the size the recording of injuries and illnesses in comparison with the benefits of the distribution of facilities is somewhat has already been done independent of system and are readily affordable by skewed, the majority of establishments the OSHA recordkeeping requirements, covered establishments. (See the record fewer than four injuries and and, in most cases, making the OSHA Impacts section of this economic illnesses a year and have fewer than 20 record simply involves copying analysis.) employees. Some commenters appeared information from other sources to the Because the final regulation makes a to be unaware of the small number of OSHA form. number of changes, some of which injuries and illnesses recorded by the (3) Overview of Estimates increase the amount of information typical affected establishment when employers must maintain and others commenting on the proposal. For The estimated net impact of the that simplify recordkeeping and reduce example, the comment of one revisions to the recordkeeping rule is a the burden, it is difficult to estimate the commenter that the typical cost of $38.6 million per year. Estimated precise impact of a given change on establishment will need to train 2 to 4 net costs for establishments covered by establishments in particular industries. recordkeepers (Ex. 15–375) is clearly not the former rule that will continue to be Moreover, most individual changes have reasonable because the typical covered by the final rule are relatively only a minor impact on burdens, establishment covered by this rule minor, and the estimated 119,720 whether positive or negative. employs about 50 employees and establishments that OSHA has Accordingly, the analysis groups records a total of four injuries and exempted from the final rule will incur together changes to a specific portion of illnesses a year. substantial savings. The chief cost the recordkeeping activities, such as The impacts of changes in specific increases will be to the 179,287 maintaining the Log or filling out the regulatory provisions are generally establishments brought under the scope individual report of injury, and (for the related to one of two factors: of OSHA’s recordkeeping rule for the most part) assesses the net impact of the • Costs that are essentially fixed costs first time. group of provisions, rather than the for an establishment are estimated on a impact of each provision individually. per-establishment basis and multiplied B. Initial Costs of Learning the The analysis reflects the fact that the by the number of affected Recordkeeping System final regulation is a revision of a former establishments. (1) Initial Costs to Establishments • regulation. Thus many of the impacts Costs that vary with the number of Already Covered of Becoming Familiar are changes in the burden of doing cases recorded are estimated on a per- With the Revised Recordkeeping System something that is already required. case-recorded basis and multiplied by Wherever this is the case, the burden the number of such cases recorded. Recordkeepers in establishments that under the former and final regulations Other Parameters. Burdens are were covered by the former regulation will be the same if the activities are estimated as number of minutes (per and that will continue to be covered unchanged. In addition, small changes establishment or per case) to comply under the final regulation will need to in burden estimates, both positive and with each provision. Most of the costs become familiar with the changes in the negative, may offset each other. are based on the assumption that recordkeeping system associated with the final rule even before an injury or (2) Analytical Approach recordkeeping tasks will be conducted by someone with the skill level of a illness occurs. OSHA originally Scope. The costs of the final rule personnel specialist who would be estimated that this initial familiarization depend in part on the scope of the rule, qualified both to obtain and to enter the would require 15 minutes per such i.e., on the industries that are covered. necessary data. The wage rate for a establishment. Some commenters As noted in Chapter II, affected Personnel Training and Labor Relations objected to this estimate as too low. industries fall into three groups, Specialist—$19.03, or $26.32 including (See, for example, Exs. 15: 119, 15: 357, depending on their inclusion or fringe benefits 9—is used for this cost. 15: 375, 15: 395.) For example, one exemption under the former and final Where the time of a company official is commenter (Ex. 15: 395) stated that ‘‘No rules. Impacts differ for each of these called upon, the estimated labor cost is person could give even a superficial three groups: based on the hourly rate for an reading to this material [the proposed —For industries covered under the Industrial Production Manager—$26.38, rule] in 15 minutes.’’ Another former rule and the final rule, impacts or $36.48 including fringe benefits. commenter (Ex. 15: 375) stated that this are the costs employers will incur to Cost estimates for many specific tasks was ‘‘not enough time for one person to comply with changes made in a are also influenced by the fact that even read through the rule and the regulatory provision. almost all establishments will also have preamble one time.’’ OSHA does not —For industries covered by the former to gather information on work-related believe that experienced recordkeepers rule but exempted under the final injuries and illnesses for insurance and will need to read the entire preamble, or rule, impacts consist of cost savings workers’ compensation purposes. In even the entire rule, in order to equal to the cost of compliance many cases, the data that employers familiarize themselves with the new employers incurred under the former must collect and provide for these recordkeeping changes. For the most rule. part, the new system continues the —For industries exempted under the 9 Benefits and overhead are computed at 38.3 concepts, practices, and interpretations former rule but covered by the final percent of the hourly wage. developed under the former rule and
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thus is well known to recordkeepers. (2) Costs of Learning the Basics of the further study of the rule will be OSHA believes that most recordkeepers Recordkeeping System De Novo necessary in the relatively unlikely will avail themselves of the summaries Establishments required to keep event that such an injury or illness of the changes in the rule provided by OSHA records will incur the costs occurs. OSHA’s estimates of the time OSHA or by a wide variety of other associated with learning about the required to record each case (discussed sources. The recordkeepers’ thorough recordkeeping system from scratch further below) include the time for the knowledge of the recordkeeping system whenever a new person takes over the recordkeeper to study the instructions to will suffice to cover most aspects of the recordkeeping job as a result of staff learn how to address specific issues that rule. Nor does OSHA agree that the turnover. OSHA assumes that 20 may arise when recording specific types typical recordkeeper, who needs to percent of covered establishments will of injuries or illnesses (e.g., noise- record only 4 injuries and/or illnesses a experience such staff turnover in any induced hearing loss or work-related TB year, needs to study every change. For given year. Establishments that are cases). example, a recordkeeper relying on newly covered by the regulation will OSHA believes that the new system is OSHA’s summary information on the also incur the costs of learning the much simpler than the old. Many differences between the former and the recordkeeping system de novo. simplifications, e.g., the use of calendar revised rule only needs to make a Establishments that are newly exempted days, capping of days away cases, have mental note to the effect that injuries under the regulation, of course, will been made to the rule to save effort. and illnesses occurring in parking lots save the staff turnover costs formerly This additional simplicity, as well as are treated differently under the revised associated with recordkeeping. improved outreach materials to explain rule, but would not have to know the At the time of the proposal, OSHA the new regulation, will, OSHA details of the changes until (if ever) the estimated that, under the former believes, result in significantly reducing recordkeeper actually has an injury or regulation, new personnel would the length of time required to learn the illness that occurred in a parking lot. require a 30-minute orientation to learn system. OSHA estimates that learning Nevertheless, as a result of the the basics of the recordkeeping system the basics will take, on average, one and 25 minutes to learn the newer, comments received on the prior hour. This will save 30 minutes simpler recordkeeping system. Many proposed time estimates, OSHA has compared to the learning time that commenters believed that these would have been required for the former raised its familiarization estimate to 20 estimates were too low. (See, for system. minutes per establishment for facilities example, Exs. 15: 119, 15: 170, 15: 357, Continuously Covered Establishments. with prior OSHA recordkeeping 15: 375.) After reviewing the record, experience. This estimate covers the Establishments that were covered under the OSHA agrees that the estimates in the former regulation and continue to be covered time needed for an experienced Preliminary Economic Analysis did not recordkeeper to learn the basics of the under the final regulation will save 30 adequately capture the average amount minutes, compared with the time needed new system, but assumes that such a of time required to learn the system for under the former rule, whenever staff recordkeeper, who records an average of a person without previous knowledge of turnover requires a new recordkeeper. At a four cases per year, need not learn the OSHA recordkeeping. OSHA has 20 percent turnover rate, the net annualized details of the system for dealing with revised its average estimate of the time savings for this learning activity under the unusual cases until, and if, they arise; for learning the new recordkeeping final rule are $3,123,394.11 instead, this recordkeeper is assumed to system de novo to one hour and has Newly Exempted Establishments. examine specific issues later and as revised the average estimate of the time Establishments that were covered under the needed, when issues arise in the course it would have taken a recordkeeper to former regulation but are exempted under the final regulation will incur a saving of 90 of the recording of actual cases. The learn the previous recordkeeping system time attributed in this analysis to the minutes whenever staff turnover would have to 1.5 hours. (In other words, OSHA required a new recordkeeper. At a 20 percent recording of individual cases (discussed believes that its prior estimate of the turnover rate, the net annualized savings of below) includes the time needed to average amount of time required to learn eliminating the need for this learning activity understand the details of the individual the former recordkeeping system—30 are $945,309.12 case. It is assumed that this subsequent minutes—was too low.) Newly Covered Establishments. learning will occur as recordkeepers Although OSHA’s revised average Establishments that were exempt under the enter the data; that is, the time that estimates are lower than the estimates former regulation but are covered under the OSHA estimates will be initially made by some commenters, OSHA final regulation will incur two types of costs: required to complete both Form 300 and believes that the Agency’s estimates All establishments will incur an initial Form 301 entries includes the time that appropriately reflect the average amount learning cost of one hour per establishment. the Agency estimates will be needed for of time new recordkeepers will need to Since this is a one-time cost that will not additional familiarization with issues learn the basics of the system. Again, recur, the cost was annualized over ten years new recordkeepers are assumed not to using a 7 percent discount rate. In addition, related to the entry being made. The these establishments will incur an ongoing costs for this subsequent recording learn all the details of the new system cost of 60 minutes whenever staff turnover activity are discussed in Part D of this up front, such as exactly when an off- requires a new recordkeeper to become section of the economic analysis. The site injury is considered work-related or familiar with the system. The net annualized initial familiarization cost is a one-time how to classify injuries occurring in costs of this learning activity are $671,856 + cost that will not recur. Accordingly, lunch rooms, until such a case actually $943,756 = $1,615,612.13 this cost was annualized over ten years arises in the workplace. Since unusual using a 7 percent discount rate. The net cases and those falling within the 11 $3,123,394 = (1,186,698 Establishments) × (0.2) annualized costs of this initial exceptions are relatively rare, × (30 Minutes/Establishment) × ($26.32/Hour) 12 × × familiarization activity are $1,482,384.10 recordkeepers will generally choose to $945,309 = (119,720 Establishments) (0.2) obtain detailed case-specific (90 Minutes/Establishment) × ($26.32/Hour) 13 $1,615,612 = (179,287 Establishments) × (60 10 $1,482,384 = (1,186,698 Establishments) × (20 information only when it is needed. Minutes/Establishment) × ($26.32/Hour) × [0.07/ Minutes/Establishment) × ($26.32/Hr.) × [0.07/ New recordkeepers need only to know (1¥(1/(1.07) 10))] + (179,287 Establishments) × (0.2) (1¥(1/(1.07) 10))] that such exceptions exist and that × (60 Minutes/Establishment) × ($26.32/Hour)
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(3) Total Cost Impact C. Fixed Costs of Recordkeeping the Summary, and providing data from the Table X–5 summarizes the total annualized A number of the cost items associated with Log to OSHA inspectors. Impacts in this cost impacts of initially learning the the final rule do not vary with the size of the category are related to the number of recordkeeping system under the final establishment or the number of cases establishments covered and the specific regulation. The total net annualized impact is reported. These include the costs of setting changes in recordkeeping requirements. estimated to be a saving of $970,757. up the Log, posting the Summary, certifying
TABLE X–5—FAMILIARIZATION COSTS ASSOCIATED WITH THE FINAL RULE
Estimated Change in Cost element/industry status under the final rule number of level of effort Total cost establishments (Minutes) Hours
Shift to the New Recordkeeping System: Formerly & Still Covered ...... 1,186,698 20 395,566 a,b$1,482,384 Initally Learn the Basics of the Recordkeeping System: Newly Covered ...... 179,287 60 179,287 a,b671,856 Re-learn the Basics of the Recordkeeping System: Formerly & Still Covered ...... 237,340 ¥30 -118,670 a¥3,123,394 Newly Exempted ...... 23,944 ¥90 ¥35,916 a¥945,309 Newly Covered ...... 35,857 60 35,857 a943,756
Total Annual Cost ...... c456,124 970,757 a Based on an hourly cost of $26.32. b One-time cost that is annualized over 10 years at a discount rate of 7 percent. c Includes 574,853 hours that will be required in the first year only.
(1) Setting Up the Log and Posting the scope is a net cost of ¥$420,146 + $629,180 with more than one establishment may keep Summary = $209,034.14 this information only on a firm, not Both the former rule and the final rule (2) The Annual Summary establishment, basis, and may need to perform calculations to compile or revise the require that the Log be set up at the The final rule adds a requirement for data available from their management beginning of the year and that the Annual employers to record on the Log Summary the systems. To account for this, OSHA has Summary be posted on February 1 of the year average number of employees working in the raised its average estimate of the time following the year to which the data pertain. establishment over the past year and the total required for the additional information to 20 The final regulation requires that the hours worked by all employees during that minutes. Summary remain posted for three months, year. OSHA initially estimated that recording This burden is estimated to fall on all while the former regulation required that it these data on the Summary would add 5 establishments covered by the rule, but not remain posted for only one month. minutes of labor per establishment to the cost on newly exempted establishments. The total of maintaining each Log. Many commenters OSHA estimates that the process of setting estimated cost of this additional data noted that this step might be difficult, and up the Log and filling out and posting the requirement is $10,411,297 + $1,572,936 = some stated that it might be more time $11,984,233.15 Summary under the former regulation consuming than estimated. (See, e.g., Ex. 15: required 8 minutes. OSHA has no reason to The former rule required the recordkeeper 170.) One commenter stated that this to certify that the entries on the Summary believe that this burden will change as a information was sufficiently valuable for were true, accurate, and complete. The final result of the final rule. Most of the concern management purposes that firms would rule requires a company executive to certify expressed in the comments on the proposed benefit from having the data if they did not that he or she has examined this document recordkeeping rule related to the burden already compile these data (Ex. 15: 395). The and ‘‘reasonably believes, based on his or her commenters perceived to be associated with commenters who argued that this knowledge of the process by which the updating the posted Summary form when requirement would be burdensome were information was recorded, that the annual revisions were made and mailing out the generally large multi-establishment firms summary is correct and complete.’’ Summary as an alternative to posting (see, (see, e.g., Exs. 15: 218, 15: 423). Since OSHA estimated, at the time of the e.g., Exs. 15: 288, 303, 395). Updating the OSHA’s estimate of this cost is per proposal, that the former requirement that establishment, these firms would indeed bear posted Summary was never OSHA’s intent, the recordkeeper certify the Summary cost an higher costs. OSHA does not believe that this and the final rule has dropped the mailing average of 2 minutes, because all the requirement will necessitate modifications to recordkeeper had to do was sign the form. alternative, so that both of these concerns are data systems for the vast majority of firms; now moot. Any possible increase in burden The final rule drops the requirement for finding where the data are on existing recordkeeper certification. due to the longer posting periods for the systems should suffice. OSHA also believes Having the Summary certified by a Summary (posting for 3 months rather than that the final rule has clarified that the company executive was estimated at the time 1 month) should be offset by greater average number of employees and hours of the proposal to require only 5 minutes.16 simplicity in keeping the Log using the new worked need not be precise and can simply OSHA now estimates that certification by a forms. be an estimate, which should reduce the amount of effort required to generate this The final rule’s changes in posting 15 $11,984,233 = (1,186,698 + 179,287 requirements will have no impact on number. The Agency thus finds that this Establishments) × (20 Minutes/Establishment) × establishments that were covered under the procedure will be relatively simple for most ($26.32/Hour) single-establishment firms that maintain former rule and will be covered under the 16 The proposal would have replaced certification final rule. Establishments that are newly personnel records that already have this information for a variety of other purposes. by the recordkeeper with certification by a plant exempted by the final rule will have an manager. Many commenters stated that this would However, OSHA also recognizes that firms annual savings of 8 minutes each, however. have required the plant to become personally Establishments that are newly covered will familiar with the information being certified, and 14 $209,034 = (¥119,720 + 179,287 that this would have entailed considerably more incur an annual cost of 8 minutes each. The Establishments) × (8 Minutes/Establishment) × time than 5 minutes (see, e.g., Exs. 15–9, 15–355, total estimated impact of these changes in ($26.32/Hour) 15–428, 15–395).
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company executive will require 30 minutes, former regulation but are covered by the final average of twenty minutes to decide on because the Agency believes that the regulation will incur costs of 30 minutes of a system and inform employees of it. company executive will briefly review the company official time. The total annual cost 19 The ‘‘way’’ will usually simply involve records, perhaps speak with the is estimated to be $3,270,213. directing supervisors to inform their recordkeeper, and generally take whatever The total impact of the final rule’s steps are necessary to assure himself/herself subordinates, as part of their usual that the records are accurate. Although, as certification requirement is estimated to communication with them, to report noted above, the typical firm covered by the be $23,769,204. work-related injuries and illnesses to rule only records 4 cases per year and these (3) Provision of Data to OSHA their supervisor. Most, if not all, cases are generally straightforward, OSHA Inspectors establishments require employees believes that the certifying executive will routinely to report problems of any kind need this amount of time, on average, to Like the former rule, the final rule to their supervisors, and reporting perform this task thoughtfully. Again, this requires employers to provide the Log estimate is an average estimate—it will take injuries and illnesses is simply one of and Incident Reports to an OSHA the kinds of things employees report. longer for some very large firms and less time inspector during a compliance visit. for small firms. Estimated impacts on the OSHA believes there will be no different classes of establishments are as Employers are now required by the final additional cost associated with the follows: rule to provide a copy of these forms to supervisors’ forwarding of these reports Continuously Covered Establishments. the inspector on request. OSHA believes to the person in charge of Establishments that were covered by the that providing copies has in fact been recordkeeping, because this is already former rule and will be covered by the final the practice in the past, even though the part of supervisors’ duties. This is a one- regulation will save the costs for certification former rule did not spell this out time cost, which OSHA has annualized by the recordkeeper, but will incur new costs specifically. OSHA thus does not over ten years using a 7 percent for certification by a responsible company believe that this small change in the official. This change in requirements results discount rate. The net annualized costs regulation will result in burdens or costs in an estimated total annual cost of of setting up the system are 17 for employers. $20,604,232. $1,706,285.20 Newly Exempted Establishments. (4) Informing Employees How To Report (5) Total Cost Impact Establishments that were covered by the Occupational Injuries and Illnesses former regulation but are exempted from the final regulation will realize a cost saving of The final regulation requires Table X–6 summarizes the total 2 minutes of recordkeeper time. The employers to set up a way for employees annualized cost impacts of fixed, estimated total annual savings will be to report work-related injuries and establishment-level costs resulting from $105,043.18 illnesses and inform employees about the final regulation. The total net Newly Covered Establishments. the approach they have chosen. OSHA annualized costs are estimated to be Establishments that were exempt under the assumes that it will take a Personnel $37,668,954. Training and Labor Relations Specialist 17 $20,604,232=(1,186,698 Establishments) × (¥2 BILLING CODE 4510–26–P Minutes/Establishment) × ($26.32/Hour) + (30 (or equivalent) at each establishment an Minutes/Establishment) × ($36.48/Hour) 20 $1,706,285=(1,365,985 Establishment) × (20 18 $105,043=(119,720 Establishments) × (2 19 $3,270,213=(179,287 Establishments) × (30 Minutes/Establishment) × ($26.32/Hr.) × [0.07/ Minutes/Establishment) × ($26.32/Hour) Minutes/Establishment) × ($36.28/Hour) (1¥(1/(1.07)10))]
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BILLING CODE 4510–26–C
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D. Costs of Maintaining Records (1) Impacts on Costs of the Final Rule’s saving of 20 minutes for the 301 form. The Changes in Scope estimated total annual savings will be The costs of maintaining the Log and $405,499.21 Incident Reports are related to the The changes in the scope of the final • Newly Covered Establishments. number of cases recorded. There are rule’s industry coverage will bring Establishments that were exempt under the numerous changes to the final rule that commensurate changes in the costs of former regulation but are covered by the final result in very small increases or the regulation. OSHA estimates that, regulation will incur for each currently decreases in the number of cases that under the former regulation, it required recorded case costs of 15 minutes for the Log will need to be recorded. With two an average of 15 minutes per recorded entry plus, for 18% of the cases, 22 minutes case to maintain the Log, plus 20 for the 301 form. The total annual cost is exceptions, OSHA concludes that the 22 average establishment keeping records minutes to fill out a 101 form, for those estimated to be $1,646,000. • Additional Hearing Loss Cases. under both the former rule and the final employers who did not use an Establishments will incur for each additional rule will experience an overall decrease equivalent form. hearing loss case costs of 15 minutes for the in the number of occupational injury The addition of new elements to Form Log entry plus, for 18% of the cases, 22 and illness cases entered into its OSHA 301, as will be described shortly, raises minutes for the 301 form, or an estimated records. These decreases will result OSHA’s estimate of the total time total annual cost of $2,287,208.23 from the addition of several exemptions required to fill out an individual report • SIC 80. Establishments in SIC 80 will to the presumption of work-relatedness of injury or illness to 22 minutes. Based incur for each additional needlesticks and on data collected during approximately sharps case costs of 5 minutes for the Log for cases occurring in the work 24 environment and from definitional 400 recordkeeping audit inspections, entry plus, for 18% of the cases, 22 OSHA assumes that 82 percent of minutes for the 301 form, or an estimated changes (e.g., medical treatment, first total annual cost of $1,971,664.25 aid, restricted work, aggravation) that incidents will be recorded on forms will make fewer cases recordable. other than the new Form 301, such as (The costs of the ‘‘log of percutaneous However, for this analysis, OSHA makes workers’ compensation forms. injuries from contaminated sharps’’ the conservative assumption that these The average for the Log takes into specified in the revision of the will net out to a zero change. This account a wide range of cases. For Bloodborne Pathogens standard in assumption means that the costs clearly work-related injuries involving conformance with the requirements of presented in this economic analysis are an absence of 10 work days and the Needlestick Safety and Prevention somewhat overstated. involving no additional restricted time, Act have been captured in the analysis The two exceptions to the overall for example, essentially all of the of that rule. No offset has been taken in decrease in the number of cases necessary information can be obtained the economic analysis of this rule for recorded are the result of the change to from workers’ compensation-related costs common to these two rules for a more sensitive standard threshold files. In such a case, entering the data on recording needlestick injuries.) shift for recording hearing loss, which the Log will simply require pulling the The estimated total cost impact will increase the number of cases in all workers’ compensation file and entering related to changes in scope of the industries except construction, and the the key information on the Log—a three recordkeeping rule is $5,499,373. new requirement to record needlesticks minute task. OSHA assumes that the (2) Maintenance of the Log and sharps injuries, which will result in time required to make an entry will Form 300 will replace Form 200 as a relatively large increase in the number increase when either (1) information is the Log of injuries and illnesses. The of cases recorded in SIC 80. not already kept for other purposes, or revisions to this form represent the The costs for SIC 80 are analyzed (2) making the entry requires the greatest source of cost savings to separately. The analysis uses the recordkeeper to study the regulation. employers required to record work- following classes of industries: Examples of situations where the For industries covered by the former necessary information would not related injuries and illnesses. The major regulation and now covered by the new already have been recorded elsewhere modifications that result in time and regulation, except for SIC 80, OSHA are cases that are not recorded as cost savings are simplifications of Form assumes that the number of needlestick workers’ compensation cases, or cases 300 and changes and simplifications in cases recorded will essentially be involving restricted work days (which the criteria for recordable cases. Simplification of the Log. Compared unchanged by the final regulation. are not recorded in workers’ to the form that it will replace, Form For industries (except in SIC 80) compensation data and may not be part 300 has a more logical progression, covered by the former regulation, but of the affected worker’s payroll or makes available considerably more exempted under the final regulation, personnel files). Examples of situations space, and eliminates unnecessary recorded cases will fall to zero, resulting where it would be necessary to study columns. OSHA estimates that this will in commensurate savings. the regulation are those involving take an average of one minute off the For industries exempted under the questions about the recordability of the time required to record cases (except for former regulation but covered by the incident or its work-relatedness. final regulation, the impact will be the Changes in scope will have different 21 $405,499 = ((49,698 Cases) × (15 Minutes/Case) full cost of recording such cases. impacts on the different classes of + (8,946 Cases) × (20 Minutes/Case)) × ($26.32/ In SIC 80, recorded cases in three-digit industries, as follows: Hours). industries that are newly exempted (see • 22 $1,646,000 = ((197,904 Cases) × (15 Minutes/ Continuously Covered Establishments. × × Table X–3) will fall to zero, resulting in By definition, establishments in industries Case) + ($35.623 Cases) (22 Minutes/Case)) ($26.32/Hours). commensurate savings. The industries that formerly covered and still covered by the 23 $2,287,208 = (275,000 Cases) × (15 Minutes/ will continue to be covered (SIC 805, Nursing final regulation will have no changes in costs × × and Personal Care Facilities, SIC 806, Case) ($26.32/Hour) + (49,500 Cases) (22 related to industry scope. Minutes/Case)) × ($26.32/Hour). Hospitals, and SIC 808, Home Health Care • Newly Exempted Establishments. 24 Under the simplified criteria of the final rule, Services) will bear the full cost of recording Establishments that were covered by the needlesticks and sharps cases are among the very the expected increase in needlesticks and former regulation but are exempt from the easiest cases to document and record. sharps cases. This increase in cases will be final regulation will realize for each currently 25 $1,971,664 = ((501,640 Cases) × (5 Minutes/ analyzed in the same manner as cases in recorded case a cost saving of 15 minutes for Case) + (90,295 Cases) × (22 Minutes/Case)) × newly covered industries. the Log entry plus, for 18% of the cases, a ($26.32/Hour).
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those that involve needlesticks or job transfer (as appropriate). OSHA had ‘‘privacy concern case’’ on the required sharps, which will be analyzed interpreted the former rule to have the separate, confidential list of case separately in this analysis). This same effect, but the former regulatory numbers and employee names. The simplification of the Log will produce a text did not clearly state the estimated annual cost of this provision saving of $2,177,240.26 requirement. This clarification makes is thus $843,524.29 Simplification of Decisionmaking overall compliance with OSHA’s rules (3) Maintenance of Individual Reports of about Recordability. In estimating the simpler, because both the recordkeeping Injury and Illness savings in time associated with the rule and the OSHA standards will rely simplification of recordability on the same criteria, such as biological The final regulation substitutes the decisionmaking, OSHA focused monitoring test results, employers’ new Form 301 for the former Form 101 primarily on the simplification of the determinations, and physician’s and provides other options. steps needed to determine whether an opinions, and the recording New Elements on Individual Reports. injury or illness is serious enough to be requirements are clearly stated in the The new form requires employers to recorded. When a work-related injury or regulatory text. record such additional items as the illness results in days away from work Under the final rule, days away from injured or ill employee’s date of hire, or restricted workdays, then it is work and days of restricted work will be emergency room visits, the starting time obvious under both the former and final counted by calendar days rather than of the employee’s shift, and time of the regulations that the injury or illness according to scheduled work days. One accident. OSHA estimates that these must be recorded. Under the former commenter (Ex. 57X, pp. 97–101, 117– additional elements will raise time regulation, however, the employer was 118) argued that, in the automobile required to fill out an individual report required to consult several paragraphs manufacturing industry alone, this of injury or illness from 20 minutes for of the Recordkeeping Guidelines to could free up $5,000,000 to $6,000,000 the old Form 101 to 22 minutes for the determine whether an injury that did worth of human resources per year for new Form 301. This change will cost not result in lost or restricted workdays more productive uses of time. However, employers in industries formerly would need to be counted. The final OSHA has not taken cost savings for this covered and still covered by the final regulation will allow the employer to change because no data in the record regulation an estimated $889,169.30 settle the issue quickly by looking at the suggest that the projections for this Changes that will reduce burden list of first aid treatments in Section industry will be typical of other include: 1904.7(b)(4). industries. An option to keep Form 301s off-site; Of the cases in the 1998 BLS Survey Privacy Concern Cases. The final rule and of Occupational Injury and Illness that requires maintenance of a separate, An option to keep Form 301s on did not involve needlesticks or sharps, confidential list of case numbers and electronic media. 52.34 percent did not involve lost or employee names for ‘‘privacy concern Keeping Form 301s Off-site. Keeping restricted workdays. In addition to the cases,’’ so that an employee’s name does Form 301s off-site will provide the one minute saved for each case because not appear on the Form 300. Privacy greatest cost savings to small, isolated of the forms simplification discussed on concern cases include injury or illness establishments that are owned by larger the previous page, OSHA estimates that to an intimate body part or the firms that already keep personnel data the simplification of recordability reproductive system; injury or illness at headquarters or at another site. For decisionmaking under the final rule will resulting from a sexual assault; mental such firms, OSHA estimates that the save approximately 2 minutes for each illness; HIV infection, hepatitis, or ability to maintain records off-site could such injury or illness case. Applying tuberculosis; needlesticks and sharps save as much as 5 minutes per record. this unit cost saving to all industries injuries; and other illnesses (except These savings in time and effort would covered by the final rule produces MSD illnesses) that the employee result from reductions in the amount of estimated total savings of $2,279,080.27 requests be treated as a privacy concern time necessary to copy the Form 301 at Under the final rule there will no case. headquarters, send it to the small longer be any need to examine in any In 1997 BLS estimated that there were establishment, receive it there, and file detail the recordability of any cases 621 days away from work cases it. There would also be a saving in involving needlesticks or sharps, since involving the reproductive tract, 18 postage. Under the final rule, such small all such cases will have to be recorded. rapes, 5,542 mental disorders, and no establishments would have to go OSHA estimates that the average time hepatitis cases. (Data are available at through all of these steps only when an required to record such cases will www.bls.gov.) In 1997, OSHA estimated inspection occurred. Even if only 2 change from 15 minutes under the that there were approximately 34,630 percent of the estimated recordable former rule to 5 minutes under the final occupational TB infections annually. It cases in establishments that are covered rule. This would save covered appears that TB cases have declined under the final regulation were affected establishments in SIC 80 an estimated somewhat since then, but OSHA uses by this provision (which OSHA believes $388,329.28 this number in this analysis as a is likely to be an underestimate), the OSHA has also clarified the conservative estimate. resulting cost savings would be requirement to record medical removal The time to record HIV infection cases $294,141.31 cases by stating in the regulatory text is included in the estimate of the time Storing Form 301s on Electronic that any case involving medical removal associated with recording 590,165 Media. The final rule permits employers required by an OSHA health standard needlestick and sharps cases, but each to store Form 301s on electronic media, must be recorded as a case involving of these cases will also require time for provided that they are able to produce days away from work or restricted work/ making an entry in the confidential list the records in hard copy within four of case numbers and employee names. 26 $2,177,240 = (4,963,312 Cases) × (1 Minute/ 29 $843,524 = (640,976 Cases) × (3 Minutes/Case) × OSHA also assumes that employees in × Case) ($26.32/Hour). 10,000 other illness cases will ask that ($26.32/Hour). 27 $2,279,080 = (2,597,736 Cases) × (2 Minutes/ 30 $889,169 = (1,013,503 Cases) × (2 Minutes/ Case) × ($26.32/Hour). their names not appear on the Form 300. Case) × ($26.32/Hour). 28 $388,329 = (88,525 Cases) × (10 Minutes/Case) OSHA estimates that it will take an 31 $294,141 = (5,630,573 Cases) × (0.02) × [(5 × ($26.32/Hour). average of 3 minutes to record each Minutes/Case) × ($26.32/Hour) + ($0.33/Case)].
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hours of a request by a government their representatives access to Form accomplish this by simply covering part representative permitted access under 301s and to pay the cost of one copy. (It of the form before they copy it, OSHA the regulation. OSHA estimated that also requires them to allow access to the considers this requirement to impose no electronic storage would be Log, but this is not a change from the costs. advantageous for establishments that former rule.) OSHA assumes that handle more than 100 cases per year. employers would require five minutes (6) Total Cost Impact OSHA used as a proxy variable for this to pull, copy (at $0.05), and replace the Table X–7 summarizes the cost number the number of establishments relevant form. OSHA assumes that (a) at impacts of maintaining records with 1,000 or more employees. In the one-tenth of covered establishments, attributable to the final regulation. The 1998 BLS survey, establishments in this one employee would request access to net impact is an estimated annual cost size category had a total of 899,700 his or her own Form 301, and (b) at one of $1,881,080. recordable cases. OSHA estimates that percent of covered establishments, a for each case the ability to store case union representative would request E. Summary of Costs information electronically would save 2 access to all Form 301s at the minutes of time, plus $.05, for making establishment. OSHA further assumes Table X–8 summarizes the total a paper copy. The estimated cost that there would be an average of ten annualized cost impacts of the entire savings from this change would amount Form 301s at such establishments.33 The final rule. This summary indicates that: to approximately $825,027 per year.32 estimated total cost of this provision is The largest sources of costs are: New OSHA believes that this may be an $612,860.34 certification requirements ($23.8 underestimate, because having even as (5) Access to Other Parties million), additional data requirements few as 30 to 40 cases a year might be ($12.0 million), expansion in the scope The final regulation requires that if enough incentive to prompt a firm to of the rule ($5.5 million), and employers voluntarily disclose Forms keep its records electronically. To the transitional costs of the new rule ($1.5 300 or 301 to persons other than extent that these much smaller firms million). turn to electronic storage, the cost government representatives, employees, savings associated with this provision former employees, of authorized The largest sources of savings are: could be many times greater than the representatives, they must remove or Simplified maintenance of the Log ($4.8 estimate. hide the employees’ names, with certain million), less time required to relearn exceptions. Since employers may the recordkeeping system ($3.1 million), (4) Employee and Employee simplified maintenance of individual Representative Access 33 This is a conservative estimate. The average reports ($1.1 million). The final regulation requires number of cases per covered establishment was only about 4 in 1998. Further, some employers The net impact of these changes is an employers to provide employees and already provide copies of Form 301s to union estimated annual cost of about $38.6 representatives. [Transcript, March 29, 1996, p. 14]. million. 32 $825,027 = (889,700 Cases × [(2 Minutes/Case) 34 $612,860 = (273,197 Forms × [(5 Minutes × × ($26.32/Hour) + ($0.05/Case)]. ($26.32/Hour) + $.05/Copy)]. BILLING CODE 4510–26–P
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BILLING CODE 4510–26–C
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4. Benefits the establishment’s records of injuries B. Specific Benefits of the Final OSHA’s final Recording and and illnesses will provide management Regulation Reporting Occupational Injuries and with an analytical tool that can be used (1) Changes in Scope of the Regulation Illnesses rule is designed to provide an to control or eliminate hazards. The changes in the scope of the final information base to assist employers The process of using recorded regulation in the retail and service and employees to maintain safe and information to control or eliminate sectors represent a refinement in healthy working conditions that protect hazards was well illustrated in a coverage. The scope of the former rule workers. The importance of the 36 comment on the proposed rule. This is defined at the two-digit SIC level; the contribution of accurate recordkeeping testimony described a training exercise scope of the final rule is defined at the to lower injury and illness rates is where trainees used Log data to plot three-digit SIC level. OSHA is indicated by experience with OSHA’s MSD injuries on a floor plan; went into expanding the scope to include high- Voluntary Protection Program (VPP), a the plant to look for risk factors and risk three-digit industries that were program that recognizes employers with previously exempt and to reduce the exemplary safety and health programs. interview workers; formulated specific scope to exempt low-risk three-digit VPP worksites, which have workplace design and work organization changes to eliminate or reduce risk industries that were previously covered. comprehensive safety and health The effect of this change is to make management programs that include factors; and refined their findings into an action plan. the regulation more cost-effective. This effective injury, illness, and accident retargeting shifts the burden from recordkeeping, generally have lost- If this enhanced ability to identify industries with relatively few injuries workday case rates ranging from one- (and thus address) hazards translates and illnesses per establishment to fifth to one-third the rates experienced into a reduction even as small as 0.5 to industries with substantially larger by most worksites in the same 1 percent of the estimated number of numbers of injuries and illnesses per industry.35 These sites also routinely recordable cases, it would mean the establishment. Thus the final rule will rely on the Logs and other worksite data prevention of 29,147 to 58,285 injuries result in higher hazard identification sources to evaluate their programs and and illnesses per year.37 benefits per dollar of regulatory burden. correct deficiencies. This chapter It is also likely to lead to a small describes the potential benefits (2) Increased Utility of Data to OSHA reduction in injuries and illnesses at associated with the changes OSHA is newly covered establishments that had making to the recordkeeping The final rule’s changes will also not been keeping records at all. requirements in 29 CFR 1904. make injury records more useful to OSHA, as well as to employers and The final rule’s changes in scope will A. Overview of Benefits employees. Improvements in the quality similarly increase the cost-effectiveness of OSHA’s compliance activities. With The benefits of improved and usefulness of the records being kept the same expenditure of resources, recordkeeping fall into two groups. by employers would enhance OSHA’s OSHA will be better able to detect Improved recordkeeping enhances the capacity to: ability of employers and employees to injury and illness trends and to assist prevent occupational injuries and Focus compliance outreach efforts on the employers to address the causes of these illnesses. Improved recordkeeping and most significant hazards; trends. OSHA expects this more reporting also increases the utility of Identify types or patterns of injuries and efficient use of Agency resources to injury and illness records for OSHA’s illnesses whose investigation might lead to translate directly into reduced worker purposes. regulatory changes or other types of injuries and illnesses, reductions in prevention efforts, such as enforcement costs to employers, and increased (1) Enhanced Ability of Employers and strategies, information and training, or productivity. Employees to Prevent Injuries and technology development; and Illnesses Set priorities among establishments for (2) Forms Simplification and Definitions The additional or improved inspection purposes. The general reduction in burden associated with changes in the forms information about events and exposures Employers and employees both stand to be collected on Form 301, including and in the data reported was discussed to benefit from the more effective use of information on the location, the in the previous chapter under cost OSHA’s resources. The enhanced ability equipment, materials or chemicals being savings. The simplification of the forms used, and the specific activity being of compliance officers to identify also will have benefits in the form of performed, will increase the ability of patterns of injuries will enable OSHA to improved information. The same is true employers and employees to identify focus on more serious problems. of definitional changes, such as hazardous conditions and to take Identification of such patterns will also counting lost workdays or restricted remedial action to prevent future increase the ability of employers to work days as calendar days and capping injuries and illnesses. Identifying the control these hazards and prevent other the count at 180 days. Easier recording irritating substance that has caused an similar injuries. To the extent that of data will make records of individual employee to experience a recordable employers take advantage of this cases more complete and consistent. It case of occupational dermatitis, for information, the burden of OSHA is also possible that simplified recording example, could prompt an employer to inspections should be reduced in the will encourage more complete recording re-examine available Material Safety long run. Employees clearly will also of job-related injuries and illnesses. Data Sheets to identify a non-irritating benefit from these reductions in This process is illustrated by the substitute material. On Form 301, injuries. change from days away from work to details will be recorded in a logical calendar days. This change represents sequence that will help structure the an explicit decision to shift the information and focus attention on 36 Nancy Lessin, Testimony on behalf of emphasis from lost productivity to the problem processes and activities. Thus Massachusetts Coalition for Occupational Safety seriousness of the injury or illness. and Health, May 3, 1996, Transcript, p. 48. Calendar days are a more accurate and 35 Federal Register, January 26, 1989, p. 3904. 37 (0.005 to .01) × 5,828,477. consistent reflection of seriousness than
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are lost scheduled workdays. They are however, it is necessary to get a records, and the buyer is required to also directly comparable across complete picture of the overall pattern take them over. The benefits of establishments and industries, while of all needlesticks and sharps injuries. continuity of information are clearly days away from work are not. Thus, This requires recording all such injuries, much greater than this trivial cost. calendar days produce more useful whether or not they result in AIDS, The cost, if any, for posting (but not information for the purpose of assessing hepatitis, or other bloodborne illness. revising) the Annual Summary for three patterns of injuries and illnesses. This The final regulation accomplishes this. months, rather than one month, is variable is also generally much simpler Because of their high mortality and extremely small—particularly to determine and record, so that the disability potentials, AIDS and hepatitis considering that quite a number of other information is more likely to be are particularly frightening illnesses. certificates and information (e.g., complete and accurate. This One implication of this fact, however, is elevator certificates, minimum wage combination of attributes, OSHA that the benefits per case of prevention information, etc.) must be posted at all believes, will substantially improve the are large. Another implication is that times. The ability of employees to refer quality of the information available for there are substantial employee morale back to the Annual Summary analysis and enhance the resulting benefits to a prevention program that is information, as well as the availability actions taken to reduce job-related comprehensive and well informed. of the information to new employees injuries and illness. Recording all risky wounds and then when they are hired, clearly produces using the data for prevention are actions benefits that exceed the costs. (3) Recordable Injuries/Illnesses that are reasonable. These provisions of Certification by a Company Executive. The changes in the definition of the the final rule are likely also to result in The requirement that a company injuries and illnesses that are recordable indirect benefits in the form of executive certify the Summary will have have several different types of benefits. improved patient care. In general, they follow a pattern of Hearing loss cases also result in the effect of increasing the oversight and simplification and/or more cost- substantial disability and lead to safety accountability of higher management in effective targeting of recording accidents as well. OSHA believes that health and safety activities. The requirements, which should produce aligning the recording threshold for certifying official will be responsible for the types of benefits discussed above. such cases with the Standard Threshold ensuring that systems and processes are Changes that add to the information Shift criterion in the Agency’s in place and for holding the recorded have other benefits as well. occupational Noise Standard will recordkeeper accountable. OSHA Specified Recording Thresholds. One simplify recording for many employers believes that this increased awareness of change involves identifying the who are already familiar with this job-related injuries and illnesses, and of threshold at which a medical removal criterion. The shift in this recording their prevention, will translate into condition or restriction is to be criterion will also increase the number fewer accidents and injuries because the recorded, and tying this to the level in of hearing loss cases captured by the certifying executive will have a a specific OSHA standard (lead, recordkeeping system and provide more heightened sense of responsibility for cadmium, ergonomics, etc.). This opportunities for employers to intervene safety and health, although quantifying requirement involves no increase in to prevent other hearing loss cases. this benefit is not possible at this time. cost, since the pre-removal or restriction Additional Data Requirements for conditions are already required under (4) Procedural Changes and Form 301 and Form 300–A. The final the specific OSHA standard. Informational Requirements rule will require employers to provide Needlesticks and Sharps Injuries and The relationship between costs and several additional pieces of information, Hearing Loss Cases. By far the most benefits varies for the final rule’s at an estimated cost of two minutes per extensive change in recording is the procedural changes and for its Form 301 and twenty minutes per Form requirement to report all needlesticks requirements for additional information. 300–A. and sharps injuries involving exposure Some provisions have positive but Additional information related to to blood or other potentially infectious trivial costs. Others have more incidents (on Form 301) includes: materials in the covered industries. The significant costs but substantial benefits. Employee’s date of hire, emergency benefits of this change are also quite De Minimis Costs. A number of room visits, time the employee began extensive, however, and the costs are changes have costs that are so low that work (starting time of the shift), and less than they might at first seem. In the benefits of the change are clearly time of the accident. effect, OSHA is changing the emphasis greater. Examples include the Additional establishment information on these injuries from the effects (the provisions discussed below. (on the Form 300–A Summary) injury’s medical treatment) to the actual Recording incidents within seven includes: injury caused by the incident (i.e., the calendar days, rather than six working needlestick or sharps injury). days, will impose costs for more rapid Annual average number of employees Recording all needlesticks and sharps employed in that year, and Total hours recording on establishments that work worked by all employees during the year. injuries will provide far more useful only five days a week. The reduced information for illness prevention burden resulting from a simpler Information on the injured employee’s purposes. Unlike many other conditions deadline—one week later—almost date of hire can provide insight into a (e.g., blood poisoning and hearing loss) certainly outweighs this minuscule cost, number of factors that have been shown that are progressive, AIDS and hepatitis however. Moreover, for establishments to relate to injury rates. Such factors are either present or they are not. In any that operate six or seven days a week, may include inadequate training, given work setting, the risk is this change does not impose any costs inexperience on the job, etc. If OSHA probabilistic and bimodally distributed; at all. were to link its injury data with either one is infected by an injury or one The requirement, upon change of information on the distribution of job is not. Under these circumstances, it is ownership, for the seller to hand over tenure, for example, it could then important to prevent all injuries that records to the buyer of the business has calculate injury rates by job tenure might lead to illness. For that extremely small costs. The seller, after category for different jobs. That prevention strategy to be successful, all, is already required to maintain those information would help to identify areas
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where better training would have the National Academy of Sciences, the In this section, for each affected greatest potential to reduce injuries. Keystone Report, the testimony of safety industry, estimates of per-firm Data on starting times of shifts and the and health professionals, and the annualized compliance costs are time of occurrence of the accident will Agency’s own experience. The final compared with (a) per-firm estimates of facilitate research on whether accident rule’s changes will thus benefit workers, sales from a compilation of 1996 data rates vary by shift, and whether certain their employers, and the Agency’s performed by the U.S. Census Bureau portions of a shift are particularly accident prevention efforts. for the Small Business Administration dangerous. This information will be to reflect parent company control of helpful to OSHA as well as to the 5. Economic Feasibility and Small establishments, and (b) per-firm employer’s own assessment of Business Impacts estimates of profits derived from workplace safety and health. Most Introduction information in Dun & Bradstreet’s importantly, employees will receive the ‘‘Industry Norms and Key Business This section assesses the impact on information they need to understand Ratios’’ database for 1996 or by applying affected firms of the costs of both the absolute and relative incidence 1996 profit percentages from Robert implementing the final recordkeeping of injuries and illnesses in their Morris Associates to the Agency’s per- rule. It is divided into four parts. The establishment. Such information is firm estimates of sales. Based on the first part analyzes the economic essential both for market-based results of these comparisons, which feasibility of the rule for firms in all mechanisms to influence safety and identify the magnitude of the potential health and for meaningful employee affected industries. The second part impacts of the final rule, OSHA then participation in safety and health. analyzes the economic impacts of the assesses the rule’s economic feasibility The inclusion of information rule on small entities in the affected for establishments in all affected concerning the average number of industries. The third part presents an industries. employees and total hours worked by all Unfunded Mandates Analysis, which To estimate the sales and profits of employees during the year will enable OSHA has conducted in accordance covered firms, OSHA identified the OSHA inspectors to calculate incidence with the Unfunded Mandates Reform Standard Industrial Classifications rates directly from the posted summary. Act. The fourth part examines the (SICs) of every industry under the scope Employers will also benefit from their potential environmental impacts of the of the rulemaking. For each industry, ability to obtain incidence information regulation. OSHA then calculated the average sales quickly and easily. Analysis of Economic Feasibility per firm in the relevant SIC(s). The At the establishment level, average rate of return on sales (from Dun occupational injury and illness records The final 1904 rule is a regulation and Bradstreet or, if necessary, from are examined at the beginning of an promulgated under sections 8 and 24 of Robert Morris Associates) was used to OSHA inspection and are used by the OSH Act, and is not a standard, estimate average profit per firm. compliance officers to identify safety which would be promulgated under (Throughout this section, the term and health problems that deserve to be Section 6 of the Act. Nevertheless, ‘‘average’’ is used to mean the focused on. The data on Form 300 and OSHA has performed an analysis of the arithmetic mean.) Form 301 will also be used to determine economic feasibility of the rule. The cost estimates compared with what areas of the site, if any, warrant The courts have held that, to estimated sales and profit data for firms particular attention during the demonstrate that a standard is in each affected industry ‘‘screen’’ for inspection. Again, access to this economically feasible, OSHA ‘‘must potential impacts. If sizeable impacts improved information will be of direct construct a reasonable estimate of were identified by this screening benefit to employers and employees, compliance costs and demonstrate a analysis, additional analysis would be who will be able to act on it to control reasonable likelihood that these costs necessary. hazards. will not threaten the existence or Table X–9 shows compliance costs as Employee Access to Form 301. competitive structure of an industry, a percentage of before-tax profits and of Providing employees with access to the even if it does portend disaster for some sales. This table presents the results of Form 301, as well as the Form 300, will marginal firms’’ [United Steelworkers of the screening analysis, which simply allow them to monitor the accuracy of America v. Marshall, 647 F.2d 1189, measures costs as a percentage of before- the data and to identify possible 1272 (D.C. Cir. 1980) (the ‘‘Lead tax profits and sales; the screening patterns of injuries and illnesses. Access decision’’)]. In assessing the economic analysis is used to determine whether to Form 301 is important because this feasibility of the final recordkeeping the compliance costs potentially form contains enough detailed rule, OSHA has followed the decisions associated with the rule could lead to information about the events of the courts in the Lead case and other significant impacts on the affected firms surrounding the occurrence to enable OSHA cases, and has relied on under worst-case scenarios. Whether or workers analyzing it to identify the information and data in the record to not the costs of compliance actually appropriate protective measures to determine that the final standard is lead to a significant impact on the profit prevent future accidents. economically feasible for firms in all and/or sales of firms in a given industry affected industries. will depend on the price elasticity of (5) Summary OSHA’s estimates of the number of demand for the products or services of Taken together, the changes that covered establishments in each affected firms in that industry. OSHA is making to its recording and industry are presented in Section 2 of Price elasticity refers to the reporting requirements are designed to this economic analysis, and the results relationship between the price charged achieve the Agency’s primary goal of of the Agency’s analysis of annualized for a product and the demand for that reducing job-related injuries, illnesses, compliance costs are presented in product: the more elastic the and fatalities. The link between more Section 3. The Agency’s analysis is relationship, the less able firms are to accurate and better-targeted injury and based on comments to the record, pass the costs of compliance through to illness recordkeeping and accident supplemented, where needed, by public their customers in the form of a price prevention has repeatedly been information sources such as the Census increase and the more they must absorb established and emphasized by the Bureau’s County Business Patterns. the costs of compliance from their
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profits. When demand is inelastic, firms passing the cost increase through in the way shifts a part of the cost to its can absorb all the costs of compliance form of a price increase; instead, they consumers and a part to its suppliers,’’ simply by raising the prices they charge must absorb some of the increase from in the words of the court in American for that product; under this scenario, their profits. In general, ‘‘when an Dental Association v. Secretary of profits are untouched. On the other industry is subjected to a higher cost, it Labor, [984 F.2d 823, 829 (Seventh Cir. hand, when demand is elastic, firms does not simply swallow it; it raises its 1993)] (the ‘‘ADA decision’’). cannot cover the costs simply by price and reduces its output, and in this BILLING CODE 4510–26–P
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BILLING CODE 4510–26–C
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Specifically, if demand is completely compliance costs per firm amount to them to the closest category. For those inelastic (i.e., the price elasticity is 0), more than .006 percent of sales or 0.3 industries where an ‘‘annual receipts’’ then the impact of compliance costs that percent of profits. Even if no price SBA definition was used, the Agency amount to 1 percent of revenues would increase were possible, a 0.3 percent projected the analogous employment be a 1 percent increase in the price of decline in profits would not threaten the break by examining the ratio of the product, with no decline in demand viability of any firm. For example, a employment to receipts per firm. For or in profits. Such a situation would be firm with before-tax profits of 10 example, in Heavy Construction, SIC 16, most likely when there are few, if any, percent of sales would still have profits the ratio of employment to receipts substitutes for the product or services of 9.97 percent of sales, even under this suggested that a $17 million firm would offered by the affected firms and the extreme scenario. Thus, the final rule is have approximately 104 employees. The products or services of the affected firms clearly economically feasible in all Agency therefore examined firms with account only for a small portion of the industry groups. fewer than 100 employees. This process income of their consumers. If demand is Among the covered SICs, average is shown in Table X–10. perfectly elastic (i.e., the price elasticity compliance costs as a percent of sales The results of this analysis are shown is infinitely large), then no increase in range from less than .00005% in several in Table X–11. Over the entire range of price is possible, and before-tax profits industries, such as SIC 29, Petroleum SICs affected by the final rule, estimated would be reduced by an amount equal and Coal Products, to .0059% in SIC cost per small firm averages only to the costs of compliance (minus any 593, Used Merchandise Stores. Average $31.63. compliance costs as a percent of profits savings resulting from improved worker In order to ensure that even the ranges from less than .0005% in several health and reduced insurance costs). smallest entities would not be Under this scenario, if the costs of industries, such as SIC 37, Transportation Equipment significantly impacted, the Agency compliance represent a large percentage performed an analysis of impacts on of the firm’s profits, some firms might manufacturing, to .293% in SIC 523, Paint, Glass, and Wallpaper Stores. very small firms, i.e., those with fewer be forced to close. This scenario is than 20 employees. This analysis used highly unlikely to occur, however, Potential Economic Impacts of the Rule the same sources for sales and profit because it can only arise when there are on Small Firms data as Table X–11. The results of this other goods or services that are, in the As required by the Regulatory analysis are shown in Table X–12. eyes of consumers, perfect substitutes Flexibility Act (as amended in 1996), Regardless of whether the SBA for the goods produced by the affected this section measures the potential definitions or the fewer-than-20- firms. economic impacts of the final rule on employee definition was used, the A common intermediate case would small businesses in the regulated results were the same—no significant be a price elasticity of one. In this community to determine whether the impact. For the purposes of small- situation, if the costs of compliance rule has a significant impact on a business impact assessment, OSHA amount to 1 percent of revenues, and substantial number of small firms. It defines as potentially significant prices are raised by 1 percent, then builds on the analysis of economic annualized costs of compliance that production would decline by 1 percent. impacts developed in the Economic amount to 1 percent of sales or 5 percent In this situation, firms would remain in Feasibility part of this section. The of profits. The impacts of the rule on business and maintain the same profit Agency has analyzed the impact of the sales and profits did not exceed 1 as before, but would produce 1 percent final recordkeeping rule on small percent for firms in any covered less product. Consumers would entities, as defined by the Small industry, whether the analysis used the effectively absorb the costs through a Business Administration and in SBA’s definitions or the fewer-than-20- combination of increased prices and accordance with the Regulatory employee size class definition. No small reduced consumption; this, as the court Flexibility Act. firm in any industry would need to described in the ADA decision, is the Data on receipts were provided by the increase its prices by more than 0.0105 more typical case. Commerce Department, in a data table percent, even under a full cost pass- As Table X–9 shows, the impacts specially commissioned by the Small through scenario. Alternatively, if a potentially imposed by the final rule are Business Administration. Since the size small firm had to pay for the costs of not sizeable. On average, annual costs definitions SBA has established do not compliance entirely from profits, costs per firm are less than $58. (In one precisely match the categories provided would account for no more than 0.406 industry, Transportation Equipment, in these data, the Agency approximated percent of profits 38 in any industry. characterized by large workplaces, the the nearest data grouping, where Impacts of this magnitude would not potential reduction in costs that vary necessary. The SBA-commissioned data affect the viability of even the smallest with the number of cases actually were broken into size categories of firms firm. outweighs the potential increase in defined by numbers of employees (1–4, BILLING CODE 4510–26–P essentially fixed costs associated with 5–9, 10–19, 20–99, 100–499, >500). the number of establishments, Where these size categories did not 38 It should be emphasized that a one percent producing an average reduction in costs match SBA’s assigned ‘‘small’’ firm decrease in profits represents a one percent per firm.) In no industry do average definitions, the Agency approximated decrease in profits, not in profit rate.
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BILLING CODE 4510–26–C
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Regulatory Flexibility Analysis small entities in two ways. First, all requirements, either to keep records or Although a Final Regulatory employers who had fewer than 11 to report information from the records to Flexibility Analysis is not required in workers at all times during the previous the government. In addition, the effort this case, OSHA has chosen to include year are exempt from keeping Part 1904 employers are required to put forth to the elements of a final regulatory records of occupational injuries and learn the requirements are considered flexibility analysis in this document. illnesses, unless specifically asked to do information requirements. The elements of a Final Regulatory so by the government. Second, the final In response to OSHA’s 1996 proposal, Flexibility Analysis are: rule exempts employers classified in the public submitted 450 written • A succinct statement of the need certain industries in the services and comments . The Agency also held two for, and the objective of, the rule; retail sectors. These industry-exempt public meetings where it collected oral • A summary of significant issues employers are also not required to keep comments from 43 individuals and raised by the public comments in records unless asked to do so by the groups during six days of informal response to the initial regulatory government. The effect of the size and meetings. flexibility analysis, a summary of the industry exemptions is that more than In summary, OSHA estimates that assessment of the Agency of such issues, 4.5 million of the Nation’s 6 million there are 1,365,985 establishments that and a statement of any changes made to business establishments are exempted will be required to keep records of the proposed rule as a result of such from keeping OSHA Part 1904 records occupational injuries and illnesses comments; on a routine basis. under the provisions. A total of • A description of and estimate of the OSHA considered several alternatives approximately 4,500,000 hours will be number of small entities to which the to exempting employers based on size needed for employers to comply with rule will apply or an explanation of why and/or industry classification. A the information collection requirements no such explanation is available; discussion of these alternatives, and for the first year, and 3,500,000 hours in • A description of the projected why OSHA chose the alternative in the each subsequent year. This represents reporting, recordkeeping and other final rule, can be found in the preamble an increase of 1,060,000 hours from the compliance requirements of the rule, discussion for Subpart B, Scope. previous paperwork burden estimates. including an estimate of the classes of XI. Regulatory Flexibility Certification OSHA has recently recognized that small entities that will be subject to the previous estimates of the burden Based on OSHA’s analysis of small associated with becoming familiar with rule’s requirements and the types of business impacts (Tables X–11 and X– professional skills necessary for the 1904 rule have been understated, 12), OSHA certifies that this final rule and recently corrected those estimates, preparation of the record or report; will not have a significant impact on a • A description of the steps the as noted in OSHA’s Final Economic substantial number of small entities. Agency has taken to minimize the Analysis for the Part 1904 rule. OSHA makes this certification to fulfill significant economic impact on small In accordance with the Paperwork its obligations under the Regulatory entities consistent with the stated Reduction Act (PRA) of 1995 (44 U.S.C. Flexibility Act (as amended in 1996). objectives of applicable statutes, 3501–3520), OSHA has requested OMB including a statement of the factual, XII. Environmental Impact Assessment approval of the collection of information policy, and legal reasons for selecting requirement described above. The In accordance with the requirements information collection provisions will the alternative adopted in the final rule of the National Environmental Policy and why each of the other significant take effect when OMB approves them Act (NEPA) (42 U.S.C. 4321 et seq.), under the PRA. alternatives considered by the agency Council on Environmental Quality was rejected. NEPA regulations (40 CFR part 1500 et XV. Authority The Regulatory Flexibility Act states seq.), and the Department of Labor’s that the Regulatory Flexibility Analysis This document was prepared under NEPA regulations (29 CFR part 11), the the direction of Charles N. Jeffress, (RFA) need not contain all of the above Assistant Secretary has determined that elements in toto if these elements are Assistant Secretary of Labor for this final rule will not have a significant Occupational Safety and Health, U.S. presented elsewhere in the impact on the external environment. documentation and analysis of the Department of Labor, 200 Constitution regulation. This analysis will follow this XIII. Federalism Avenue, N.W., Washington, DC 20210. approach and refer the reader to other This final rule has been reviewed in List of Subjects documentation for some of the above accordance with Executive Order 13132 29 CFR Part 1904 elements. (52 FR 41685), regarding Federalism. Need for and objectives of the rule. Because this rulemaking action involves Health statistics, Occupational safety The need for the final rule and its a ‘‘regulation’’ issued under section 8 of and health, Reporting and objectives are discussed in the the OSH Act, and not a ‘‘standard’’ recordkeeping requirements, State introductory sections of the preamble. issued under section 6 of the Act, the plans. The number of small entities to which rule does not preempt State law, see 29 29 CFR Part 1952 the rule will apply. As shown in Table U.S.C. § 667 (a). The effect of the final X–11, the final rule will impact 541,988 rule on States is discussed above in Health statistics, Intergovernmental firms defined as small firms by the SBA. Section VI, State Plans. relations, Occupational safety and The compliance requirements of the health, Reporting and recordkeeping final rule. The compliance requirements XIV. Paperwork Reduction Act of 1995 requirements, State plans. of the final rule are discussed in the The final regulation contains Accordingly, pursuant to sections summary and explanation section of the information collections which are 8(c), 8(g), 20 and 24 of the Occupational preamble, which discusses each subject to review by the Office of Safety and Health Act of 1970 (29 U.S.C. requirement in detail. Management and Budget (OMB) under 657, 673), Secretary of Labor’s Order No. Steps taken to minimize the impact of the Paperwork Reduction Act of 1995. 1–90 (55 FR 9033), and 5 U.S.C. 553, the the rule on small entities. The final Part Most of the provisions of the final rule Department amends 29 CFR Chapter 1904 rule minimizes the impact on contain collection of information XVII as set forth below.
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Signed in Washington, D.C., this 5th day of 1904.45 OMB control numbers under the size, you need to determine your January, 2001. Paperwork Reduction Act company’s peak employment during the Charles N. Jeffress, Subpart G—Definitions last calendar year. If you had no more Assistant Secretary of Labor. 1904.46 Definitions. than 10 employees at any time in the 1. 29 CFR Part 1904 is revised to read last calendar year, your company Authority: 29 U.S.C. 657, 658, 660, 666, qualifies for the partial exemption for as follows: 669, 673, Secretary of Labor’s Order No. 1– 90 (55 FR 9033), and 5 U.S.C. 553. size. Part 1904—Recording and Reporting Occupational Injuries and Illnesses § 1904.2 Partial exemption for Subpart A—Purpose establishments in certain industries. Sec. § 1904.0 Purpose. (a) Basic requirement. (1) If your Subpart A—Purpose The purpose of this rule (Part 1904) is business establishment is classified in a 1904.0 Purpose to require employers to record and specific low hazard retail, service, report work-related fatalities, injuries finance, insurance or real estate Subpart B—Scope and illnesses. industry listed in Appendix A to this 1904.1 Partial exemption for employers Note to § 1904.0: Recording or reporting a Subpart B, you do not need to keep with 10 or fewer employees. work-related injury, illness, or fatality does OSHA injury and illness records unless 1904.2 Partial exemption for establishments not mean that the employer or employee was the government asks you to keep the in certain industries. at fault, that an OSHA rule has been violated, records under § 1904.41 or § 1904.42. 1904.3 Keeping records for more than one or that the employee is eligible for workers’ However, all employers must report to agency. compensation or other benefits. Non-mandatory Appendix A to Subpart B— OSHA any workplace incident that Partially Exempt Industries. results in a fatality or the hospitalization Subpart B—Scope of three or more employees (see Subpart C—Recordkeeping Forms and Recording Criteria § 1904.39). Note to Subpart B: All employers covered (2) If one or more of your company’s 1904.4 Recording criteria. by the Occupational Safety and Health Act establishments are classified in a non- 1904.5 Determination of work-relatedness. (OSH Act) are covered by these Part 1904 exempt industry, you must keep OSHA 1904.6 Determination of new cases. regulations. However, most employers do not 1904.7 General recording criteria. have to keep OSHA injury and illness records injury and illness records for all of such 1904.8 Recording criteria for needlestick unless OSHA or the Bureau of Labor establishments unless your company is and sharps injuries. Statistics (BLS) informs them in writing that partially exempted because of size 1904.9 Recording criteria for cases they must keep records. For example, under § 1904.1. involving medical removal under OSHA employers with 10 or fewer employees and (b) Implementation. (1) Does the standards. business establishments in certain industry partial industry classification 1904.10 Recording criteria for cases classifications are partially exempt from exemption apply only to business involving occupational hearing loss. keeping OSHA injury and illness records. 1904.11 Recording criteria for work-related establishments in the retail, services, tuberculosis cases. § 1904.1 Partial exemption for employers finance, insurance or real estate 1904.12 Recording criteria for cases with 10 or fewer employees. industries (SICs 52–89)? Yes, business involving work-related musculoskeletal establishments classified in agriculture; disorders. (a) Basic requirement. (1) If your company had ten (10) or fewer mining; construction; manufacturing; 1904.13–1904.28 [Reserved] transportation; communication, electric, 1904.29 Forms. employees at all times during the last calendar year, you do not need to keep gas and sanitary services; or wholesale Subpart D—Other OSHA Injury and Illness trade are not eligible for the partial Recordkeeping Requirements OSHA injury and illness records unless OSHA or the BLS informs you in industry classification exemption. 1904.30 Multiple business establishments. writing that you must keep records (2) Is the partial industry 1904.31 Covered employees. under § 1904.41 or § 1904.42. However, classification exemption based on the 1904.32 Annual summary. industry classification of my entire 1904.33 Retention and updating. as required by § 1904.39, all employers covered by the OSH Act must report to company or on the classification of 1904.34 Change in business ownership. individual business establishments 1904.35 Employee involvement. OSHA any workplace incident that 1904.36 Prohibition against discrimination. results in a fatality or the hospitalization operated by my company? The partial 1904.37 State recordkeeping regulations. of three or more employees. industry classification exemption 1904.38 Variances from the recordkeeping (2) If your company had more than applies to individual business rule. ten (10) employees at any time during establishments. If a company has several business establishments engaged in Subpart E—Reporting Fatality, Injury and the last calendar year, you must keep Illness Information to the Government OSHA injury and illness records unless different classes of business activities, your establishment is classified as a some of the company’s establishments 1904.39 Reporting fatalities and multiple may be required to keep records, while hospitalization incidents to OSHA. partially exempt industry under 1904.40 Providing records to government § 1904.2. others may be exempt. representatives. (b) Implementation. (1) Is the partial (3) How do I determine the Standard 1904.41 Annual OSHA Injury and Illness exemption for size based on the size of Industrial Classification code for my Survey of Ten or More Employers. my entire company or on the size of an company or for individual 1904.42 Requests from the Bureau of Labor individual business establishment? The establishments? You determine your Statistics for data. partial exemption for size is based on Standard Industrial Classification (SIC) Subpart F—Transition From the Former the number of employees in the entire code by using the Standard Industrial Rule company. Classification Manual, Executive Office 1904.43 Summary and posting of year 2000 (2) How do I determine the size of my of the President, Office of Management data. company to find out if I qualify for the and Budget. You may contact your 1904.44 Retention and updating of old partial exemption for size? To nearest OSHA office or State agency for forms. determine if you are exempt because of help in determining your SIC.
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§ 1904.3 Keeping records for more than this Part 1904 requires you to record. codes, unless they are asked in writing one agency. You may contact your nearest OSHA to do so by OSHA, the Bureau of Labor If you create records to comply with office or State agency for help in Statistics ( BLS), or a state agency another government agency’s injury and determining whether your records meet operating under the authority of OSHA illness recordkeeping requirements, OSHA’s requirements. or the BLS. All employers, including OSHA will consider those records as those partially exempted by reason of meeting OSHA’s Part 1904 Non-Mandatory Appendix A to Subpart B—Partially Exempt Industries company size or industry classification, recordkeeping requirements if OSHA must report to OSHA any workplace accepts the other agency’s records under Employers are not required to keep incident that results in a fatality or the a memorandum of understanding with OSHA injury and illness records for any hospitalization of three or more that agency, or if the other agency’s establishment classified in the following employees (see § 1904.39). records contain the same information as Standard Industrial Classification (SIC)
SIC SIC code Industry description code Industry description
525 ...... Hardware Stores 725 ...... Shoe Repair and Shoeshine Parlors. 542 ...... Meat and Fish Markets 726 ...... Funeral Service and Crematories. 544 ...... Candy, Nut, and Confectionery Stores 729 ...... Miscellaneous Personal Services. 545 ...... Dairy Products Stores 731 ...... Advertising Services. 546 ...... Retail Bakeries 732 ...... Credit Reporting and Collection Services. 549 ...... Miscellaneous Food Stores 733 ...... Mailing, Reproduction, & Stenographic Services. 551 ...... New and Used Car Dealers 737 ...... Computer and Data Processing Services. 552 ...... Used Car Dealers 738 ...... Miscellaneous Business Services. 554 ...... Gasoline Service Stations 764 ...... Reupholstery and Furniture Repair. 557 ...... Motorcycle Dealers 78 ...... Motion Picture. 56 ...... Apparel and Accessory Stores 791 ...... Dance Studios, Schools, and Halls. 573 ...... Radio, Television, & Computer Stores 792 ...... Producers, Orchestras, Entertainers. 58 ...... Eating and Drinking Places 793 ...... Bowling Centers. 591 ...... Drug Stores and Proprietary Stores 801 ...... Offices & Clinics Of Medical Doctors. 592 ...... Liquor Stores 802 ...... Offices and Clinics Of Dentists. 594 ...... Miscellaneous Shopping Goods Stores 803 ...... Offices Of Osteopathic. 599 ...... Retail Stores, Not Elsewhere Classified 804 ...... Offices Of Other Health Practitioners. 60 ...... Depository Institutions (banks & savings institutions) 807 ...... Medical and Dental Laboratories. 61 ...... Nondepository 809 ...... Health and Allied Services, Not Elsewhere Classified. 62 ...... Security and Commodity Brokers 81 ...... Legal Services. 63 ...... Insurance Carriers 82 ...... Educational Services (schools, colleges, universities and li- braries). 64 ...... Insurance Agents, Brokers & Services 832 ...... Individual and Family Services. 653 ...... Real Estate Agents and Managers 835 ...... Child Day Care Services. 654 ...... Title Abstract Offices 839 ...... Social Services, Not Elsewhere Classified. 67 ...... Holding and Other Investment Offices 841 ...... Museums and Art Galleries. 722 ...... Photographic Studios, Portrait 86 ...... Membership Organizations. 723 ...... Beauty Shops 87 ...... Engineering, Accounting, Research, Management, and Re- lated Services. 724 ...... Barber Shops 899 ...... Services, not elsewhere classified.
Subpart C—Recordkeeping Forms and (1) Is work-related; and (iii) General recording criteria. See Recording Criteria (2) Is a new case; and § 1904.7. (3) Meets one or more of the general (iv) Additional criteria. (Needlestick Note to Subpart C: This Subpart describes recording criteria of § 1904.7 or the and sharps injury cases, tuberculosis the work-related injuries and illnesses that an application to specific cases of § 1904.8 cases, hearing loss cases, medical employer must enter into the OSHA records through § 1904.12. removal cases, and musculoskeletal and explains the OSHA forms that employers (b) Implementation. (1) What sections must use to record work-related fatalities, disorder cases). See § 1904.8 through of this rule describe recording criteria § 1904.12. injuries, and illnesses. for recording work-related injuries and (2) How do I decide whether a illnesses? The table below indicates § 1904.4 Recording criteria. particular injury or illness is recordable? which sections of the rule address each The decision tree for recording work- (a) Basic requirement. Each employer topic. required by this Part to keep records of (i) Determination of work-relatedness. related injuries and illnesses below fatalities, injuries, and illnesses must See § 1904.5. shows the steps involved in making this record each fatality, injury and illness (ii) Determination of a new case. See determination. that: § 1904.6. BILLING CODE 4510–26–P
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BILLING CODE 4510–26–C resulting from events or exposures equipment or materials used by the § 1904.5 Determination of work- occurring in the work environment, employee during the course of his or her relatedness. unless an exception in § 1904.5(b)(2) work.’’ specifically applies. (2) Are there situations where an (a) Basic requirement. You must (b) Implementation. (1) What is the consider an injury or illness to be work- ‘‘work environment’’? OSHA defines the injury or illness occurs in the work related if an event or exposure in the work environment as ‘‘the establishment environment and is not considered work environment either caused or and other locations where one or more work-related? Yes, an injury or illness contributed to the resulting condition or employees are working or are present as occurring in the work environment that significantly aggravated a pre-existing a condition of their employment. The falls under one of the following injury or illness. Work-relatedness is work environment includes not only exceptions is not work-related, and presumed for injuries and illnesses physical locations, but also the therefore is not recordable.
1904.5(b)(2) You are not required to record injuries and illnesses if . . .
(i) ...... 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. (ii) ...... The injury or illness 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. (iii) ...... The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activ- ity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball. (iv) ...... The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in). For example, if the employee is injured by choking on a sandwich while in the employer’s establishment, the case would not be considered work-related. Note: If the employee is made ill by ingesting food contaminated by workplace contaminants (such as lead), or gets food poi- soning from food supplied by the employer, the case would be considered work-related. (v) ...... 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. (vi) ...... The injury or illness is solely the result of personal grooming, self medication for a non-work-related condition, or is intentionally self-inflicted. (vii) ...... The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work. (viii) ...... The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).
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1904.5(b)(2) You are not required to record injuries and illnesses if . . .
(ix) ...... The illness is a mental illness. 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-re- lated.
(3) How do I handle a case if it is not likely not have resulted in death but for non-work-related event or exposure that obvious whether the precipitating event the occupational event or exposure. occured outside the work environment. or exposure occurred in the work (ii) Loss of consciousness, provided (6) How do I decide whether an injury environment or occurred away from that the preexisting injury or illness or illness is work-related if the employee work? In these situations, you must would likely not have resulted in loss of is on travel status at the time the injury evaluate the employee’s work duties consciousness but for the occupational or illness occurs? Injuries and illnesses and environment to decide whether or event or exposure. that occur while an employee is on not one or more events or exposures in travel status are work-related if, at the (iii) One or more days away from the work environment either caused or time of the injury or illness, the work, or days of restricted work, or days contributed to the resulting condition or employee was engaged in work of job transfer that otherwise would not significantly aggravated a pre-existing activities ‘‘in the interest of the have occurred but for the occupational condition. employer.’’ Examples of such activities event or exposure. (4) How do I know if an event or include travel to and from customer exposure in the work environment (iv) Medical treatment in a case where contacts, conducting job tasks, and ‘‘significantly aggravated’’ a preexisting no medical treatment was needed for entertaining or being entertained to injury or illness? A preexisting injury or the injury or illness before the transact, discuss, or promote business illness has been significantly workplace event or exposure, or a (work-related entertainment includes aggravated, for purposes of OSHA injury change in medical treatment was only entertainment activities being and illness recordkeeping, when an necessitated by the workplace event or engaged in at the direction of the event or exposure in the work exposure. employer). environment results in any of the (5) Which injuries and illnesses are Injuries or illnesses that occur when following: considered pre-existing conditions? An the employee is on travel status do not (i) Death, provided that the injury or illness is a preexisting have to be recorded if they meet one of preexisting injury or illness would condition if it resulted solely from a the exceptions listed below.
1904.5 (b)(6) If the employee has . . . You may use the following to determine if an injury or illness is work-related
(i) ...... checked into a hotel or motel for When a traveling employee checks into a hotel, motel, or into a other temporary residence, he one or more days. or she establishes a ‘‘home away from home.’’ You must evaluate the employee’s activities after he or she checks into the hotel, motel, or other temporary residence for their work-relat- edness in the same manner as you evaluate the activities of a non-traveling employee. When the employee checks into the temporary residence, he or she is considered to have left the work environment. When the employee begins work each day, he or she re-enters the work environment. If the employee has established a ‘‘home away from home’’ and is reporting to a fixed worksite each day, you also do not consider injuries or illnesses work-related if they occur while the employee is commuting between the temporary residence and the job loca- tion. (ii) ...... taken a detour for personal rea- Injuries or illnesses are not considered work-related if they occur while the employee is on a sons. personal detour from a reasonably direct route of travel (e.g., has taken a side trip for per- sonal reasons).
(7) How do I decide if a case is work- at home, becomes infected and requires (2) The employee previously related when the employee is working at medical treatment, the injury is experienced a recorded injury or illness home? Injuries and illnesses that occur considered work-related. If an employee of the same type that affected the same while an employee is working at home, is injured because he or she trips on the part of the body but had recovered including work in a home office, will be family dog while rushing to answer a completely (all signs and symptoms had considered work-related if the injury or work phone call, the case is not disappeared) from the previous injury or illness occurs while the employee is considered work-related. If an employee illness and an event or exposure in the performing work for pay or working at home is electrocuted because work environment caused the signs or compensation in the home, and the of faulty home wiring, the injury is not symptoms to reappear. (b) Implementation. (1) When an injury or illness is directly related to the considered work-related. employee experiences the signs or performance of work rather than to the § 1904.6 Determination of new cases. symptoms of a chronic work-related general home environment or setting. (a) Basic requirement. You must illness, do I need to consider each For example, if an employee drops a box consider an injury or illness to be a recurrence of signs or symptoms to be a of work documents and injures his or ‘‘new case’’ if: new case? No, for occupational illnesses her foot, the case is considered work- (1) The employee has not previously where the signs or symptoms may recur related. If an employee’s fingernail is experienced a recorded injury or illness or continue in the absence of an punctured by a needle from a sewing of the same type that affects the same exposure in the workplace, the case machine used to perform garment work part of the body, or must only be recorded once. Examples
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may include occupational cancer, licensed health care professional. See (iv) How do I count weekends, asbestosis, byssinosis and silicosis. § 1904.7(b)(7). holidays, or other days the employee (2) When an employee experiences (2) How do I record a work-related would not have worked anyway? You the signs or symptoms of an injury or injury or illness that results in the must count the number of calendar days illness as a result of an event or employee’s death? You must record an the employee was unable to work as a exposure in the workplace, such as an injury or illness that results in death by result of the injury or illness, regardless episode of occupational asthma, must I entering a check mark on the OSHA 300 of whether or not the employee was treat the episode as a new case? Yes, Log in the space for cases resulting in scheduled to work on those day(s). because the episode or recurrence was death. You must also report any work- Weekend days, holidays, vacation days caused by an event or exposure in the related fatality to OSHA within eight (8) or other days off are included in the workplace, the incident must be treated hours, as required by § 1904.39. total number of days recorded if the as a new case. (3) How do I record a work-related employee would not have been able to (3) May I rely on a physician or other injury or illness that results in days work on those days because of a work- licensed health care professional to away from work? When an injury or related injury or illness. determine whether a case is a new case illness involves one or more days away (v) How do I record a case in which or a recurrence of an old case? You are from work, you must record the injury a worker is injured or becomes ill on a not required to seek the advice of a or illness on the OSHA 300 Log with a Friday and reports to work on a physician or other licensed health care check mark in the space for cases Monday, and was not scheduled to work professional. However, if you do seek involving days away and an entry of the on the weekend? You need to record this such advice, you must follow the number of calendar days away from case only if you receive information physician or other licensed health care work in the number of days column. If from a physician or other licensed professional’s recommendation about the employee is out for an extended health care professional indicating that whether the case is a new case or a period of time, you must enter an the employee should not have worked, recurrence. If you receive estimate of the days that the employee or should have performed only recommendations from two or more will be away, and update the day count restricted work, during the weekend. If physicians or other licensed health care when the actual number of days is so, you must record the injury or illness professionals, you must make a decision known. as a case with days away from work or restricted work, and enter the day as to which recommendation is the most (i) Do I count the day on which the authoritative (best documented, best counts, as appropriate. injury occurred or the illness began? No, (vi) How do I record a case in which reasoned, or most authoritative), and you begin counting days away on the a worker is injured or becomes ill on the record the case based upon that day after the injury occurred or the day before scheduled time off such as a recommendation. illness began. holiday, a planned vacation, or a (ii) How do I record an injury or § 1904.7 General recording criteria. temporary plant closing? You need to illness when a physician or other (a) Basic requirement. You must record a case of this type only if you licensed health care professional receive information from a physician or consider an injury or illness to meet the recommends that the worker stay at general recording criteria, and therefore other licensed health care professional home but the employee comes to work indicating that the employee should not to be recordable, if it results in any of anyway? You must record these injuries the following: death, days away from have worked, or should have performed and illnesses on the OSHA 300 Log only restricted work, during the work, restricted work or transfer to using the check box for cases with days scheduled time off. If so, you must another job, medical treatment beyond away from work and enter the number record the injury or illness as a case first aid, or loss of consciousness. You of calendar days away recommended by with days away from work or restricted must also consider a case to meet the the physician or other licensed health work, and enter the day counts, as general recording criteria if it involves care professional. If a physician or other appropriate. a significant injury or illness diagnosed licensed health care professional (vii) Is there a limit to the number of by a physician or other licensed health recommends days away, you should days away from work I must count? Yes, care professional, even if it does not encourage your employee to follow that you may ‘‘cap’’ the total days away at result in death, days away from work, recommendation. However, the days 180 calendar days. You are not required restricted work or job transfer, medical away must be recorded whether the to keep track of the number of calendar treatment beyond first aid, or loss of injured or ill employee follows the days away from work if the injury or consciousness. physician or licensed health care illness resulted in more than 180 (b) Implementation. (1) How do I professional’s recommendation or not. If calendar days away from work and/or decide if a case meets one or more of you receive recommendations from two days of job transfer or restriction. In the general recording criteria? A work- or more physicians or other licensed such a case, entering 180 in the total related injury or illness must be health care professionals, you may make days away column will be considered recorded if it results in one or more of a decision as to which recommendation adequate. the following: is the most authoritative, and record the (viii) May I stop counting days if an (i) Death. See § 1904.7(b)(2). case based upon that recommendation. employee who is away from work (ii) Days away from work. See (iii) How do I handle a case when a because of an injury or illness retires or § 1904.7(b)(3). physician or other licensed health care leaves my company? Yes, if the (iii) Restricted work or transfer to professional recommends that the employee leaves your company for some another job. See § 1904.7(b)(4). worker return to work but the employee reason unrelated to the injury or illness, (iv) Medical treatment beyond first stays at home anyway? In this situation, such as retirement, a plant closing, or to aid. See § 1904.7(b)(5). you must end the count of days away take another job, you may stop counting (v) Loss of consciousness. See from work on the date the physician or days away from work or days of § 1904.7(b)(6). other licensed health care professional restriction/job transfer. If the employee (vi) A significant injury or illness recommends that the employee return to leaves your company because of the diagnosed by a physician or other work. injury or illness, you must estimate the
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total number of days away or days of injury or illness automatically injury or illness on the OSHA 300 Log restriction/job transfer and enter the day recordable as a ‘‘restricted work’’ case? as a restricted work case. If a physician count on the 300 Log. No, a recommended work restriction is or other licensed health care (ix) If a case occurs in one year but recordable only if it affects one or more professional recommends a job results in days away during the next of the employee’s routine job functions. restriction, you should ensure that the calendar year, do I record the case in To determine whether this is the case, employee complies with that restriction. both years? No, you only record the you must evaluate the restriction in If you receive recommendations from injury or illness once. You must enter light of the routine functions of the two or more physicians or other the number of calendar days away for injured or ill employee’s job. If the licensed health care professionals, you the injury or illness on the OSHA 300 restriction from you or the physician or may make a decision as to which Log for the year in which the injury or other licensed health care professional recommendation is the most illness occurred. If the employee is still keeps the employee from performing authoritative, and record the case based away from work because of the injury or one or more of his or her routine job upon that recommendation. illness when you prepare the annual functions, or from working the full (ix) How do I decide if an injury or summary, estimate the total number of workday the injured or ill employee illness involved a transfer to another calendar days you expect the employee would otherwise have worked, the job? If you assign an injured or ill to be away from work, use this number employee’s work has been restricted and employee to a job other than his or her to calculate the total for the annual you must record the case. regular job for part of the day, the case summary, and then update the initial (v) How do I record a case where the involves transfer to another job. Note: log entry later when the day count is worker works only for a partial work This does not include the day on which known or reaches the 180-day cap. shift because of a work-related injury or the injury or illness occurred. (4) How do I record a work-related illness? A partial day of work is (x) Are transfers to another job injury or illness that results in restricted recorded as a day of job transfer or recorded in the same way as restricted work or job transfer? When an injury or restriction for recordkeeping purposes, work cases? Yes, both job transfer and illness involves restricted work or job except for the day on which the injury restricted work cases are recorded in the transfer but does not involve death or occurred or the illness began. same box on the OSHA 300 Log. For days away from work, you must record (vi) If the injured or ill worker example, if you assign, or a physician or the injury or illness on the OSHA 300 produces fewer goods or services than other licensed health care professional Log by placing a check mark in the he or she would have produced prior to recommends that you assign, an injured space for job transfer or restriction and the injury or illness but otherwise or ill worker to his or her routine job an entry of the number of restricted or performs all of the routine functions of duties for part of the day and to another transferred days in the restricted his or her work, is the case considered job for the rest of the day, the injury or workdays column. a restricted work case? No, the case is illness involves a job transfer. You must (i) How do I decide if the injury or considered restricted work only if the record an injury or illness that involves illness resulted in restricted work? worker does not perform all of the a job transfer by placing a check in the Restricted work occurs when, as the routine functions of his or her job or box for job transfer. result of a work-related injury or illness: does not work the full shift that he or (xi) How do I count days of job (A) You keep the employee from she would otherwise have worked. transfer or restriction? You count days performing one or more of the routine (vii) How do I handle vague of job transfer or restriction in the same functions of his or her job, or from restrictions from a physician or other way you count days away from work, working the full workday that he or she licensed health care professional, such using § 1904.7(b)(3)(i) to (viii), above. would otherwise have been scheduled as that the employee engage only in The only difference is that, if you to work; or ‘‘light duty’’ or ‘‘take it easy for a permanently assign the injured or ill (B) A physician or other licensed week’’? If you are not clear about the employee to a job that has been health care professional recommends physician or other licensed health care modified or permanently changed in a that the employee not perform one or professional’s recommendation, you manner that eliminates the routine more of the routine functions of his or may ask that person whether the functions the employee was restricted her job, or not work the full workday employee can do all of his or her routine from performing, you may stop the day that he or she would otherwise have job functions and work all of his or her count when the modification or change been scheduled to work. normally assigned work shift. If the is made permanent. You must count at (ii) What is meant by ‘‘routine answer to both of these questions is least one day of restricted work or job functions’’? For recordkeeping ‘‘Yes,’’ then the case does not involve a transfer for such cases. purposes, an employee’s routine work restriction and does not have to be (5) How do I record an injury or functions are those work activities the recorded as such. If the answer to one illness that involves medical treatment employee regularly performs at least or both of these questions is ‘‘No,’’ the beyond first aid? If a work-related injury once per week. case involves restricted work and must or illness results in medical treatment (iii) Do I have to record restricted be recorded as a restricted work case. If beyond first aid, you must record it on work or job transfer if it applies only to you are unable to obtain this additional the OSHA 300 Log. If the injury or the day on which the injury occurred or information from the physician or other illness did not involve death, one or the illness began? No, you do not have licensed health care professional who more days away from work, one or more to record restricted work or job transfers recommended the restriction, record the days of restricted work, or one or more if you, or the physician or other licensed injury or illness as a case involving days of job transfer, you enter a check health care professional, impose the restricted work. mark in the box for cases where the restriction or transfer only for the day (viii) What do I do if a physician or employee received medical treatment on which the injury occurred or the other licensed health care professional but remained at work and was not illness began. recommends a job restriction meeting transferred or restricted. (iv) If you or a physician or other OSHA’s definition, but the employee (i) What is the definition of medical licensed health care professional does all of his or her routine job treatment? ‘‘Medical treatment’’ means recommends a work restriction, is the functions anyway? You must record the the management and care of a patient to
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combat disease or disorder. For the (iii) Are any other procedures silicosis, and some types of cancer, for which purposes of Part 1904, medical included in first aid? No, this is a medical treatment or work restrictions may treatment does not include: complete list of all treatments not be recommended at the time of diagnosis (A) Visits to a physician or other considered first aid for Part 1904 but are likely to be recommended as the licensed health care professional solely disease progresses. OSHA believes that purposes. cancer, chronic irreversible diseases, for observation or counseling; (iv) Does the professional status of the fractured or cracked bones, and punctured (B) The conduct of diagnostic person providing the treatment have any eardrums are generally considered significant procedures, such as x-rays and blood effect on what is considered first aid or injuries and illnesses, and must be recorded tests, including the administration of medical treatment? No, OSHA considers at the initial diagnosis even if medical prescription medications used solely for the treatments listed in § 1904.7(b)(5)(ii) treatment or work restrictions are not diagnostic purposes (e.g., eye drops to of this Part to be first aid regardless of recommended, or are postponed, in a dilate pupils); or the professional status of the person particular case. (C) ‘‘First aid’’ as defined in paragraph providing the treatment. Even when (b)(5)(ii) of this section. these treatments are provided by a § 1904.8 Recording criteria for needlestick and sharps injuries. (ii) What is ‘‘first aid’’? For the physician or other licensed health care purposes of Part 1904, ‘‘first aid’’ means professional, they are considered first (a) Basic requirement. You must the following: aid for the purposes of Part 1904. record all work-related needlestick (A) Using a non-prescription Similarly, OSHA considers treatment injuries and cuts from sharp objects that medication at nonprescription strength beyond first aid to be medical treatment are contaminated with another person’s (for medications available in both even when it is provided by someone blood or other potentially infectious prescription and non-prescription form, other than a physician or other licensed material (as defined by 29 CFR a recommendation by a physician or 1910.1030). You must enter the case on other licensed health care professional health care professional. (v) What if a physician or other the OSHA 300 Log as an injury. To to use a non-prescription medication at protect the employee’s privacy, you may prescription strength is considered licensed health care professional recommends medical treatment but the not enter the employee’s name on the medical treatment for recordkeeping OSHA 300 Log (see the requirements for purposes); employee does not follow the recommendation? If a physician or other privacy cases in paragraphs (B) Administering tetanus 1904.29(b)(6) through 1904.29(b)(9)). immunizations (other immunizations, licensed health care professional recommends medical treatment, you (b) Implementation. (1) What does such as Hepatitis B vaccine or rabies ‘‘other potentially infectious material’’ vaccine, are considered medical should encourage the injured or ill employee to follow that mean? The term ‘‘other potentially treatment); infectious materials’’ is defined in the (C) Cleaning, flushing or soaking recommendation. However, you must record the case even if the injured or ill OSHA Bloodborne Pathogens standard wounds on the surface of the skin; at § 1910.1030(b). These materials (D) Using wound coverings such as employee does not follow the physician TM or other licensed health care include: bandages, Band-Aids , gauze pads, (i) Human bodily fluids, tissues and etc.; or using butterfly bandages or Steri- professional’s recommendation. TM organs, and Strips (other wound closing devices (6) Is every work-related injury or (ii) Other materials infected with the such as sutures, staples, etc., are illness case involving a loss of HIV or hepatitis B (HBV) virus such as considered medical treatment); consciousness recordable? Yes, you laboratory cultures or tissues from (E) Using hot or cold therapy; must record a work-related injury or experimental animals. (F) Using any non-rigid means of illness if the worker becomes (2) Does this mean that I must record support, such as elastic bandages, unconscious, regardless of the length of all cuts, lacerations, punctures, and wraps, non-rigid back belts, etc. (devices time the employee remains scratches? No, you need to record cuts, with rigid stays or other systems unconscious. lacerations, punctures, and scratches designed to immobilize parts of the (7) What is a ‘‘significant’’ diagnosed only if they are work-related and body are considered medical treatment injury or illness that is recordable under involve contamination with another for recordkeeping purposes); the general criteria even if it does not (G) Using temporary immobilization person’s blood or other potentially result in death, days away from work, infectious material. If the cut, laceration, devices while transporting an accident restricted work or job transfer, medical victim (e.g., splints, slings, neck collars, or scratch involves a clean object, or a treatment beyond first aid, or loss of contaminant other than blood or other back boards, etc.). consciousness? Work-related cases (H) Drilling of a fingernail or toenail potentially infectious material, you need involving cancer, chronic irreversible to record the case only if it meets one to relieve pressure, or draining fluid disease, a fractured or cracked bone, or from a blister; or more of the recording criteria in a punctured eardrum must always be § 1904.7. (I) Using eye patches; recorded under the general criteria at (J) Removing foreign bodies from the (3) If I record an injury and the the time of diagnosis by a physician or eye using only irrigation or a cotton employee is later diagnosed with an other licensed health care professional. swab; infectious bloodborne disease, do I need (K) Removing splinters or foreign Note to § 1904.7: OSHA believes that most to update the OSHA 300 Log? Yes, you material from areas other than the eye significant injuries and illnesses will result must update the classification of the by irrigation, tweezers, cotton swabs or in one of the criteria listed in § 1904.7(a): case on the OSHA 300 Log if the case other simple means; death, days away from work, restricted work results in death, days away from work, (L) Using finger guards; or job transfer, medical treatment beyond restricted work, or job transfer. You first aid, or loss of consciousness. However, (M) Using massages (physical therapy there are some significant injuries, such as a must also update the description to or chiropractic treatment are considered punctured eardrum or a fractured toe or rib, identify the infectious disease and medical treatment for recordkeeping for which neither medical treatment nor change the classification of the case purposes); or work restrictions may be recommended. In from an injury to an illness. (N) Drinking fluids for relief of heat addition, there are some significant (4) What if one of my employees is stress. progressive diseases, such as byssinosis, splashed or exposed to blood or other
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potentially infectious material without (dB) or more at 2000, 3000, and 4000 physician or other licensed health care being cut or scratched? Do I need to hertz in one or both ears. professional, you must record the case record this incident? You need to record (2) How do I determine whether an on the OSHA 300 Log by checking the such an incident on the OSHA 300 Log STS has occurred? If the employee has ‘‘respiratory condition’’ column. as an illness if: never previously experienced a (b) Implementation. (1) Do I have to (i) It results in the diagnosis of a recordable hearing loss, you must record, on the Log, a positive TB skin bloodborne illness, such as HIV, compare the employee’s current test result obtained at a pre-employment hepatitis B, or hepatitis C; or audiogram with that employee’s physical? No, you do not have to record (ii) It meets one or more of the baseline audiogram. If the employee has it because the employee was not recording criteria in § 1904.7. previously experienced a recordable occupationally exposed to a known case hearing loss, you must compare the of active tuberculosis in your § 1904.9 Recording criteria for cases employee’s current audiogram with the workplace. involving medical removal under OSHA standards. employee’s revised baseline audiogram (2) May I line-out or erase a recorded (the audiogram reflecting the TB case if I obtain evidence that the (a) Basic requirement. If an employee employee’s previous recordable hearing case was not caused by occupational is medically removed under the medical loss case). exposure? Yes, you may line-out or surveillance requirements of an OSHA (3) May I adjust the audiogram results erase the case from the Log under the standard, you must record the case on to reflect the effects of aging on hearing? following circumstances: the OSHA 300 Log. Yes, when comparing audiogram (i) The worker is living in a household (b) Implementation. (1) How do I results, you may adjust the results for with a person who has been diagnosed classify medical removal cases on the the employee’s age when the audiogram with active TB; OSHA 300 Log? You must enter each was taken using Tables F–1 or F–2, as (ii) The Public Health Department has medical removal case on the OSHA 300 appropriate, in Appendix F of 29 CFR identified the worker as a contact of an Log as either a case involving days away 1910.95. individual with a case of active TB from work or a case involving restricted (4) Do I have to record the hearing unrelated to the workplace; or work activity, depending on how you loss if I am going to retest the (iii) A medical investigation shows decide to comply with the medical employee’s hearing? No, if you retest the that the employee’s infection was removal requirement. If the medical employee’s hearing within 30 days of caused by exposure to TB away from removal is the result of a chemical the first test, and the retest does not work, or proves that the case was not exposure, you must enter the case on confirm the STS, you are not required related to the workplace TB exposure. the OSHA 300 Log by checking the to record the hearing loss case on the ‘‘poisoning’’ column. OSHA 300 Log. If the retest confirms the § 1904.12 Recording criteria for cases (2) Do all of OSHA’s standards have involving work-related musculoskeletal STS, you must record the hearing loss disorders. medical removal provisions? No, some illness within seven (7) calendar days of (a) Basic requirement. If any of your OSHA standards, such as the standards the retest. covering bloodborne pathogens and (5) Are there any special rules for employees experiences a recordable noise, do not have medical removal determining whether a hearing loss case work-related musculoskeletal disorder provisions. Many OSHA standards that is work-related? Yes, hearing loss is (MSD), you must record it on the OSHA cover specific chemical substances have presumed to be work-related if the 300 Log by checking the medical removal provisions. These employee is exposed to noise in the ‘‘musculoskeletal disorder’’ column. standards include, but are not limited workplace at an 8-hour time-weighted (b) Implementation. (1) What is a to, lead, cadmium, methylene chloride, average of 85 dBA or greater, or to a ‘‘musculoskeletal disorder’’ or MSD? formaldehyde, and benzene. total noise dose of 50 percent, as Musculoskeletal disorders (MSDs) are (3) Do I have to record a case where defined in 29 CFR 1910.95. For hearing disorders of the muscles, nerves, I voluntarily removed the employee loss cases where the employee is not tendons, ligaments, joints, cartilage and from exposure before the medical exposed to this level of noise, you must spinal discs. MSDs do not include removal criteria in an OSHA standard use the rules in § 1904.5 to determine if disorders caused by slips, trips, falls, are met? No, if the case involves the hearing loss is work-related. motor vehicle accidents, or other similar voluntary medical removal before the (6) If a physician or other licensed accidents. Examples of MSDs include: medical removal levels required by an health care professional determines the Carpal tunnel syndrome, Rotator cuff OSHA standard, you do not need to hearing loss is not work-related, do I syndrome, De Quervain’s disease, record the case on the OSHA 300 Log. still need to record the case? If a Trigger finger, Tarsal tunnel syndrome, physician or other licensed health care Sciatica, Epicondylitis, Tendinitis, § 1904.10 Recording criteria for cases Raynaud’s phenomenon, Carpet layers involving occupational hearing loss. professional determines that the hearing loss is not work-related or has not been knee, Herniated spinal disc, and Low (a) Basic requirement. If an significantly aggravated by occupational back pain. employee’s hearing test (audiogram) noise exposure, you are not required to (2) How do I decide which reveals that a Standard Threshold Shift consider the case work-related or to musculoskeletal disorders to record? (STS) has occurred, you must record the record the case on the OSHA 300 Log. There are no special criteria for case on the OSHA 300 Log by checking determining which musculoskeletal the ‘‘hearing loss’’ column. § 1904.11 Recording criteria for work- disorders to record. An MSD case is (b) Implementation. (1) What is a related tuberculosis cases. recorded using the same process you Standard Threshold Shift? A Standard (a) Basic requirement. If any of your would use for any other injury or Threshold Shift, or STS, is defined in employees has been occupationally illness. If a musculoskeletal disorder is the occupational noise exposure exposed to anyone with a known case work-related, and is a new case, and standard at 29 CFR 1910.95(c)(10)(i) as of active tuberculosis (TB), and that meets one or more of the general a change in hearing threshold, relative employee subsequently develops a recording criteria, you must record the to the most recent audiogram for that tuberculosis infection, as evidenced by musculoskeletal disorder. The following employee, of an average of 10 decibels a positive skin test or diagnosis by a table will guide you to the appropriate
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section of the rule for guidance on the same instructions as the OSHA form identifiable even though the employee’s recording MSD cases. it replaces. Many employers use an name has been omitted, you may use (i) Determining if the MSD is work- insurance form instead of the OSHA 301 discretion in describing the injury or related. See § 1904.5. Incident Report, or supplement an illness on both the OSHA 300 and 301 (ii) Determining if the MSD is a new insurance form by adding any forms. You must enter enough case. See § 1904.6. additional information required by information to identify the cause of the (iii) Determining if the MSD meets OSHA. incident and the general severity of the one or more of the general recording (5) May I keep my records on a injury or illness, but you do not need to criteria: computer? Yes, if the computer can include details of an intimate or private (A) Days away from work, see produce equivalent forms when they are nature. For example, a sexual assault § 1904.7(b)(3). needed, as described under §§ 1904.35 case could be described as ‘‘injury from (B) Restricted work or transfer to and 1904.40, you may keep your records assault,’’ or an injury to a reproductive another job, or see § 1904.7(b)(4). using the computer system. organ could be described as ‘‘lower (C) Medical treatment beyond first (6) Are there situations where I do not abdominal injury.’’ aid. See § 1904.7(b)(5). put the employee’s name on the forms (10) What must I do to protect (3) If a work-related MSD case for privacy reasons? Yes, if you have a employee privacy if I wish to provide involves only subjective symptoms like ‘‘privacy concern case,’’ you may not access to the OSHA Forms 300 and 301 pain or tingling, do I have to record it enter the employee’s name on the OSHA to persons other than government as a musculoskeletal disorder? The 300 Log. Instead, enter ‘‘privacy case’’ in representatives, employees, former symptoms of an MSD are treated the the space normally used for the employees or authorized same as symptoms for any other injury employee’s name. This will protect the representatives? If you decide to or illness. If an employee has pain, privacy of the injured or ill employee voluntarily disclose the Forms to tingling, burning, numbness or any when another employee, a former persons other than government other subjective symptom of an MSD, employee, or an authorized employee representatives, employees, former and the symptoms are work-related, and representative is provided access to the employees or authorized representatives the case is a new case that meets the OSHA 300 Log under § 1904.35(b)(2). (as required by §§ 1904.35 and 1904.40), recording criteria, you must record the You must keep a separate, confidential you must remove or hide the employees’ case on the OSHA 300 Log as a list of the case numbers and employee names and other personally identifying musculoskeletal disorder. names for your privacy concern cases so information, except for the following you can update the cases and provide cases. You may disclose the Forms with §§ 1904.13–1904.28 [Reserved] the information to the government if personally identifying information only: § 1904.29 Forms asked to do so. (i) to an auditor or consultant hired by (7) How do I determine if an injury or (a) Basic requirement. You must use the employer to evaluate the safety and illness is a privacy concern case? You OSHA 300, 300–A, and 301 forms, or health program; must consider the following injuries or equivalent forms, for recordable injuries (ii) to the extent necessary for illnesses to be privacy concern cases: and illnesses. The OSHA 300 form is processing a claim for workers’ (i) An injury or illness to an intimate compensation or other insurance called the Log of Work-Related Injuries body part or the reproductive system; and Illnesses, the 300–A is the benefits; or (ii) An injury or illness resulting from (iii) to a public health authority or law Summary of Work-Related Injuries and a sexual assault; Illnesses, and the OSHA 301 form is enforcement agency for uses and (iii) Mental illnesses; disclosures for which consent, an called the Injury and Illness Incident (iv) HIV infection, hepatitis, or Report. authorization, or opportunity to agree or tuberculosis; object is not required under Department (b) Implementation. (1) What do I (v) Needlestick injuries and cuts from need to do to complete the OSHA 300 of Health and Human Services sharp objects that are contaminated with Standards for Privacy of Individually Log? You must enter information about another person’s blood or other your business at the top of the OSHA Identifiable Health Information, 45 CFR potentially infectious material (see 164.512. 300 Log, enter a one or two line § 1904.8 for definitions); and description for each recordable injury or (vi) Other illnesses, if the employee Subpart D—Other OSHA Injury and illness, and summarize this information independently and voluntarily requests Illness Recordkeeping Requirements on the OSHA 300–A at the end of the that his or her name not be entered on year. the log. Musculoskeletal disorders § 1904.30 Multiple business (2) What do I need to do to complete (MSDs) are not considered privacy establishments. the OSHA 301 Incident Report? You concern cases. (a) Basic requirement. You must keep must complete an OSHA 301 Incident (8) May I classify any other types of a separate OSHA 300 Log for each Report form, or an equivalent form, for injuries and illnesses as privacy concern establishment that is expected to be in each recordable injury or illness entered cases? No, this is a complete list of all operation for one year or longer. on the OSHA 300 Log. injuries and illnesses considered (b) Implementation. (1) Do I need to (3) How quickly must each injury or privacy concern cases for Part 1904 keep OSHA injury and illness records illness be recorded? You must enter purposes. for short-term establishments (i.e., each recordable injury or illness on the (9) If I have removed the employee’s establishments that will exist for less OSHA 300 Log and 301 Incident Report name, but still believe that the employee than a year)? Yes, however, you do not within seven (7) calendar days of may be identified from the information have to keep a separate OSHA 300 Log receiving information that a recordable on the forms, is there anything else that for each such establishment. You may injury or illness has occurred. I can do to further protect the keep one OSHA 300 Log that covers all (4) What is an equivalent form? An employee’s privacy? Yes, if you have a of your short-term establishments. You equivalent form is one that has the same reasonable basis to believe that may also include the short-term information, is as readable and information describing the privacy establishments’ recordable injuries and understandable, and is completed using concern case may be personally illnesses on an OSHA 300 Log that
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covers short-term establishments for (b) Implementation. (1) If a self- average number of employees covered individual company divisions or employed person is injured or becomes by the OSHA 300 Log, and the total geographic regions. ill while doing work at my business, do hours worked by all employees covered (2) May I keep the records for all of I need to record the injury or illness? by the OSHA 300 Log. my establishments at my headquarters No, self-employed individuals are not (iii) If you are using an equivalent location or at some other central covered by the OSH Act or this form other than the OSHA 300-A location? Yes, you may keep the records regulation. summary form, as permitted under for an establishment at your (2) If I obtain employees from a § 1904.6(b)(4), the summary you use headquarters or other central location if temporary help service, employee must also include the employee access you can: leasing service, or personnel supply and employer penalty statements found (i) Transmit information about the service, do I have to record an injury or on the OSHA 300-A Summary form. injuries and illnesses from the illness occurring to one of those (3) How do I certify the annual establishment to the central location employees? You must record these summary? A company executive must within seven (7) calendar days of injuries and illnesses if you supervise certify that he or she has examined the receiving information that a recordable these employees on a day-to-day basis. OSHA 300 Log and that he or she injury or illness has occurred; and (3) If an employee in my reasonably believes, based on his or her (ii) Produce and send the records from establishment is a contractor’s knowledge of the process by which the the central location to the establishment employee, must I record an injury or information was recorded, that the within the time frames required by illness occurring to that employee? If the annual summary is correct and § 1904.35 and § 1904.40 when you are contractor’s employee is under the day- complete. required to provide records to a to-day supervision of the contractor, the (4) Who is considered a company government representative, employees, contractor is responsible for recording executive? The company executive who former employees or employee the injury or illness. If you supervise the certifies the log must be one of the representatives. contractor employee’s work on a day-to- following persons: (3) Some of my employees work at day basis, you must record the injury or (i) An owner of the company (only if several different locations or do not illness. work at any of my establishments at all. the company is a sole proprietorship or (4) Must the personnel supply service, partnership); How do I record cases for these temporary help service, employee employees? You must link each of your (ii) An officer of the corporation; leasing service, or contractor also record (iii) The highest ranking company employees with one of your the injuries or illnesses occurring to establishments, for recordkeeping official working at the establishment; or temporary, leased or contract employees (iv) The immediate supervisor of the purposes. You must record the injury that I supervise on a day-to-day basis? and illness on the OSHA 300 Log of the highest ranking company official No, you and the temporary help service, working at the establishment. injured or ill employee’s establishment, employee leasing service, personnel (5) How do I post the annual or on an OSHA 300 Log that covers that supply service, or contractor should summary? You must post a copy of the employee’s short-term establishment. coordinate your efforts to make sure that annual summary in each establishment (4) How do I record an injury or each injury and illness is recorded only in a conspicuous place or places where illness when an employee of one of my once: either on your OSHA 300 Log (if notices to employees are customarily establishments is injured or becomes ill you provide day-to-day supervision) or posted. You must ensure that the posted while visiting or working at another of on the other employer’s OSHA 300 Log annual summary is not altered, defaced my establishments, or while working (if that company provides day-to-day or covered by other material. away from any of my establishments? If supervision). the injury or illness occurs at one of (6) When do I have to post the annual your establishments, you must record § 1904.32 Annual summary. summary? You must post the summary the injury or illness on the OSHA 300 (a) Basic requirement. At the end of no later than February 1 of the year Log of the establishment at which the each calendar year, you must: following the year covered by the injury or illness occurred. If the (1) Review the OSHA 300 Log to records and keep the posting in place employee is injured or becomes ill and verify that the entries are complete and until April 30. is not at one of your establishments, you accurate, and correct any deficiencies § 1904.33 Retention and updating. must record the case on the OSHA 300 identified; Log at the establishment at which the (2) Create an annual summary of (a) Basic requirement. You must save employee normally works. injuries and illnesses recorded on the the OSHA 300 Log, the privacy case list OSHA 300 Log; (if one exists), the annual summary, and § 1904.31 Covered employees. (3) Certify the summary; and the OSHA 301 Incident Report forms for (a) Basic requirement. You must (4) Post the annual summary. five (5) years following the end of the record on the OSHA 300 Log the (b) Implementation. (1) How calendar year that these records cover. recordable injuries and illnesses of all extensively do I have to review the (b) Implementation. (1) Do I have to employees on your payroll, whether OSHA 300 Log entries at the end of the update the OSHA 300 Log during the they are labor, executive, hourly, salary, year? You must review the entries as five-year storage period? Yes, during the part-time, seasonal, or migrant workers. extensively as necessary to make sure storage period, you must update your You also must record the recordable that they are complete and correct. stored OSHA 300 Logs to include newly injuries and illnesses that occur to (2) How do I complete the annual discovered recordable injuries or employees who are not on your payroll summary? You must: illnesses and to show any changes that if you supervise these employees on a (i) Total the columns on the OSHA have occurred in the classification of day-to-day basis. If your business is 300 Log (if you had no recordable cases, previously recorded injuries and organized as a sole proprietorship or enter zeros for each column total); and illnesses. If the description or outcome partnership, the owner or partners are (ii) Enter the calendar year covered, of a case changes, you must remove or not considered employees for the company’s name, establishment line out the original entry and enter the recordkeeping purposes. name, establishment address, annual new information.
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(2) Do I have to update the annual (iii) If an employee or representative fatality, injury or illness. That provision summary? No, you are not required to asks for access to the OSHA 300 Log, of the Act also protects the employee update the annual summary, but you when do I have to provide it? When an who files a safety and health complaint, may do so if you wish. employee, former employee, personal asks for access to the Part 1904 records, (3) Do I have to update the OSHA 301 representative, or authorized employee or otherwise exercises any rights Incident Reports? No, you are not representative asks for copies of your afforded by the OSH Act. required to update the OSHA 301 current or stored OSHA 300 Log(s) for Incident Reports, but you may do so if an establishment the employee or § 1904.37 State recordkeeping regulations. you wish. former employee has worked in, you (a) Basic requirement. Some States operate their own OSHA programs, § 1904.34 Change in business ownership. must give the requester a copy of the relevant OSHA 300 Log(s) by the end of under the authority of a State Plan If your business changes ownership, the next business day. approved by OSHA. States operating you are responsible for recording and (iv) May I remove the names of the OSHA-approved State Plans must have reporting work-related injuries and employees or any other information occupational injury and illness illnesses only for that period of the year from the OSHA 300 Log before I give recording and reporting requirements during which you owned the copies to an employee, former that are substantially identical to the establishment. You must transfer the employee, or employee representative? requirements in this Part (see 29 CFR Part 1904 records to the new owner. The No, you must leave the names on the 1902.3(k), 29 CFR 1952.4 and 29 CFR new owner must save all records of the 300 Log. However, to protect the privacy 1956.10(i)). establishment kept by the prior owner, of injured and ill employees, you may (b) Implementation. (1) State-Plan as required by § 1904.33 of this Part, but not record the employee’s name on the States must have the same requirements need not update or correct the records OSHA 300 Log for certain ‘‘privacy of the prior owner. as Federal OSHA for determining which concern cases,’’ as specified in injuries and illnesses are recordable and § 1904.35 Employee involvement. paragraphs 1904.29(b)(6) through how they are recorded. (a) Basic requirement. Your 1904.29(b)(9). (2) For other Part 1904 provisions (for employees and their representatives (v) If an employee or representative example, industry exemptions, must be involved in the recordkeeping asks for access to the OSHA 301 reporting of fatalities and system in several ways. Incident Report, when do I have to hospitalizations, record retention, or (1) You must inform each employee of provide it? employee involvement), State-Plan State how he or she is to report an injury or (A) When an employee, former requirements may be more stringent illness to you. employee, or personal representative than or supplemental to the Federal (2) You must provide limited access asks for a copy of the OSHA 301 requirements, but because of the unique to your injury and illness records for Incident Report describing an injury or nature of the national recordkeeping your employees and their illness to that employee or former program, States must consult with and representatives. employee, you must give the requester obtain approval of any such (b) Implementation. (1) What must I a copy of the OSHA 301 Incident Report requirements. do to make sure that employees report containing that information by the end (3) Although State and local work-related injuries and illnesses to of the next business day. government employees are not covered (B) When an authorized employee me? Federally, all State-Plan States must (i) You must set up a way for representative asks for a copies of the provide coverage, and must develop employees to report work-related OSHA 301 Incident Reports for an injury and illness statistics, for these injuries and illnesses promptly; and establishment where the agent workers. State Plan recording and (ii) You must tell each employee how represents employees under a collective reporting requirements for State and to report work-related injuries and bargaining agreement, you must give local government entities may differ illnesses to you. copies of those forms to the authorized from those for the private sector but (2) Do I have to give my employees employee representative within 7 must meet the requirements of and their representatives access to the calendar days. You are only required to paragraphs 1904.37(b)(1) and (b)(2). OSHA injury and illness records? Yes, give the authorized employee your employees, former employees, representative information from the (4) A State-Plan State may not issue their personal representatives, and their OSHA 301 Incident Report section titled a variance to a private sector employer authorized employee representatives ‘‘Tell us about the case.’’ You must and must recognize all variances issued have the right to access the OSHA injury remove all other information from the by Federal OSHA. and illness records, with some copy of the OSHA 301 Incident Report (5) A State Plan State may only grant limitations, as discussed below. or the equivalent substitute form that an injury and illness recording and (i) Who is an authorized employee you give to the authorized employee reporting variance to a State or local representative? An authorized employee representative. government employer within the State representative is an authorized (vi) May I charge for the copies? No, after obtaining approval to grant the collective bargaining agent of you may not charge for these copies the variance from Federal OSHA. employees. first time they are provided. However, if (ii) Who is a ‘‘personal § 1904.38 Variances from the one of the designated persons asks for recordkeeping rule. representative’’ of an employee or additional copies, you may assess a former employee? A personal reasonable charge for retrieving and (a) Basic requirement. If you wish to representative is: copying the records. keep records in a different manner from (A) Any person that the employee or the manner prescribed by the Part 1904 former employee designates as such, in § 1904.36 Prohibition against regulations, you may submit a variance writing; or discrimination. petition to the Assistant Secretary of (B) The legal representative of a Section 11(c) of the Act prohibits you Labor for Occupational Safety and deceased or legally incapacitated from discriminating against an Health, U.S. Department of Labor, employee or former employee. employee for reporting a work-related Washington, DC 20210. You can obtain
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a variance only if you can show that will include the practices the variance OSHA’s answering machine, faxing the your alternative recordkeeping system: allows you to use, any conditions that area office, or sending an e-mail? No, if (1) Collects the same information as apply, and the reasons for allowing the you can’t talk to a person at the Area this Part requires; variance. Office, you must report the fatality or (2) Meets the purposes of the Act; and (3) If I apply for a variance, may I use multiple hospitalization incident using (3) Does not interfere with the my proposed recordkeeping procedures the 800 number. administration of the Act. while the Assistant Secretary is (2) What information do I need to give (b) Implementation. (1) What do I processing the variance petition? No, to OSHA about the incident? You must need to include in my variance petition? alternative recordkeeping practices are give OSHA the following information You must include the following items in only allowed after the variance is for each fatality or multiple your petition: approved. You must comply with the hospitalization incident: (i) Your name and address; Part 1904 regulations while the (i) The establishment name; (ii) A list of the State(s) where the Assistant Secretary is reviewing your (ii) The location of the incident; variance would be used; variance petition. (iii) The time of the incident; (iii) The address(es) of the business (4) If I have already been cited by (iv) The number of fatalities or establishment(s) involved; OSHA for not following the Part 1904 hospitalized employees; (iv) A description of why you are regulations, will my variance petition (v) The names of any injured seeking a variance; have any effect on the citation and employees; (v) A description of the different penalty? No, in addition, the Assistant recordkeeping procedures you propose (vi) Your contact person and his or Secretary may elect not to review your her phone number; and to use; variance petition if it includes an (vi) A description of how your (vii) A brief description of the element for which you have been cited incident. proposed procedures will collect the and the citation is still under review by same information as would be collected (3) Do I have to report every fatality a court, an Administrative Law Judge or multiple hospitalization incident by this Part and achieve the purpose of (ALJ), or the OSH Review Commission. the Act; and resulting from a motor vehicle accident? (5) If I receive a variance, may the No, you do not have to report all of (vii) A statement that you have Assistant Secretary revoke the variance informed your employees of the petition these incidents. If the motor vehicle at a later date? Yes, the Assistant accident occurs on a public street or by giving them or their authorized Secretary may revoke your variance if representative a copy of the petition and highway, and does not occur in a he or she has good cause. The construction work zone, you do not by posting a statement summarizing the procedures revoking a variance will petition in the same way as notices are have to report the incident to OSHA. follow the same process as OSHA uses However, these injuries must be posted under § 1903.2(a). for reviewing variance petitions, as (2) How will the Assistant Secretary recorded on your OSHA injury and outlined in paragraph 1904.38(b)(2). handle my variance petition? The illness records, if you are required to Except in cases of willfulness or where Assistant Secretary will take the keep such records. necessary for public safety, the Assistant following steps to process your variance (4) Do I have to report a fatality or Secretary will: multiple hospitalization incident that petition. (i) Notify you in writing of the facts (i) The Assistant Secretary will offer occurs on a commercial or public or conduct that may warrant revocation your employees and their authorized transportation system? No, you do not of your variance; and have to call OSHA to report a fatality or representatives an opportunity to (ii) Provide you, your employees, and submit written data, views, and multiple hospitalization incident if it authorized employee representatives involves a commercial airplane, train, arguments about your variance petition. with an opportunity to participate in the (ii) The Assistant Secretary may allow subway or bus accident. However, these revocation procedures. the public to comment on your variance injuries must be recorded on your petition by publishing the petition in Subpart E—Reporting Fatality, Injury OSHA injury and illness records, if you the Federal Register. If the petition is and Illness Information to the are required to keep such records. published, the notice will establish a Government (5) Do I have to report a fatality public comment period and may caused by a heart attack at work? Yes, include a schedule for a public meeting § 1904.39 Reporting fatalities and multiple your local OSHA Area Office director on the petition. hospitalization incidents to OSHA. will decide whether to investigate the (iii) After reviewing your variance (a) Basic requirement. Within eight (8) incident, depending on the petition and any comments from your hours after the death of any employee circumstances of the heart attack. employees and the public, the Assistant from a work-related incident or the in- (6) Do I have to report a fatality or Secretary will decide whether or not patient hospitalization of three or more hospitalization that occurs long after the your proposed recordkeeping employees as a result of a work-related incident? No, you must only report each procedures will meet the purposes of incident, you must orally report the fatality or multiple hospitalization the Act, will not otherwise interfere fatality/multiple hospitalization by incident that occurs within thirty (30) with the Act, and will provide the same telephone or in person to the Area days of an incident. information as the Part 1904 regulations Office of the Occupational Safety and (7) What if I don’t learn about an provide. If your procedures meet these Health Administration (OSHA), U.S. incident right away? If you do not learn criteria, the Assistant Secretary may Department of Labor, that is nearest to of a reportable incident at the time it grant the variance subject to such the site of the incident. You may also occurs and the incident would conditions as he or she finds use the OSHA toll-free central telephone otherwise be reportable under appropriate. number, 1–800–321–OSHA (1–800– paragraphs (a) and (b) of this section, (iv) If the Assistant Secretary grants 321–6742). you must make the report within eight your variance petition, OSHA will (b) Implementation. (1) If the Area (8) hours of the time the incident is publish a notice in the Federal Register Office is closed, may I report the reported to you or to any of your to announce the variance. The notice incident by leaving a message on agent(s) or employee(s).
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§ 1904.40 Providing records to within 30 calendar days, or by the date injury and illness records required by government representatives. stated in the survey form, whichever is § 1904.5 to § 1904.15 and make a survey (a) Basic requirement. When an later. report for the year covered by the authorized government representative (3) Do I have to respond to an OSHA survey. asks for the records you keep under Part survey form if I am normally exempt (4) Do I have to answer the BLS survey 1904, you must provide copies of the from keeping OSHA injury and illness form if I am located in a State-Plan records within four (4) business hours. records? Yes, even if you are exempt State? Yes, all employers who receive a (b) Implementation. (1) What from keeping injury and illness records survey form must respond to the survey, government representatives have the under § 1904.1 to § 1904.3, OSHA may even those in State-Plan States. right to get copies of my Part 1904 inform you in writing that it will be records? The government collecting injury and illness information Subpart F—Transition From the representatives authorized to receive the from you in the following year. If you Former Rule records are: receive such a letter, you must keep the § 1904.43 Summary and posting of the (i) A representative of the Secretary of injury and illness records required by 2001 data. Labor conducting an inspection or § 1904.5 to § 1904.15 and make a survey investigation under the Act; report for the year covered by the (a) Basic requirement. If you were (ii) A representative of the Secretary survey. required to keep OSHA 200 Logs in of Health and Human Services (4) Do I have to answer the OSHA 2001, you must post a 2000 annual (including the National Institute for survey form if I am located in a State- summary from the OSHA 200 Log of Occupational Safety and Health— Plan State? Yes, all employers who occupational injuries and illnesses for NIOSH) conducting an investigation receive survey forms must respond to each establishment. under section 20(b) of the Act, or the survey, even those in State-Plan (b) Implementation. (1) What do I (iii) A representative of a State agency States. have to include in the summary? responsible for administering a State (5) Does this section affect OSHA’s (i) You must include a copy of the plan approved under section 18 of the authority to inspect my workplace? No, totals from the 2001 OSHA 200 Log and Act. nothing in this section affects OSHA’s the following information from that (2) Do I have to produce the records statutory authority to investigate form: within four (4) hours if my records are conditions related to occupational safety (A) The calendar year covered; kept at a location in a different time and health. (B) Your company name; zone? OSHA will consider your (C) The name and address of the response to be timely if you give the § 1904.42 Requests from the Bureau of establishment; and Labor Statistics for data. records to the government (D) The certification signature, title representative within four (4) business (a) Basic requirement. If you receive a and date. hours of the request. If you maintain the Survey of Occupational Injuries and (ii) If no injuries or illnesses occurred records at a location in a different time Illnesses Form from the Bureau of Labor at your establishment in 2001, you must zone, you may use the business hours of Statistics (BLS), or a BLS designee, you enter zeros on the totals line and post the establishment at which the records must promptly complete the form and the 2001 summary. are located when calculating the return it following the instructions (2) When am I required to summarize deadline. contained on the survey form. and post the 2001 information? (b) Implementation. (1) Does every (i) You must complete the summary § 1904.41 Annual OSHA injury and illness employer have to send data to the BLS? by February 1, 2002; and survey of ten or more employers. No, each year, the BLS sends injury and (ii) You must post a copy of the (a) Basic requirement. If you receive illness survey forms to randomly summary in each establishment in a OSHA’s annual survey form, you must selected employers and uses the conspicuous place or places where fill it out and send it to OSHA or information to create the Nation’s notices to employees are customarily OSHA’s designee, as stated on the occupational injury and illness posted. You must ensure that the survey form. You must report the statistics. In any year, some employers summary is not altered, defaced or following information for the year will receive a BLS survey form and covered by other material. described on the form: others will not. You do not have to send (3) You must post the 2001 summary (1) the number of workers you injury and illness data to the BLS unless from February 1, 2002 to March 1, 2002. employed; you receive a survey form. (2) the number of hours worked by (2) If I get a survey form from the BLS, § 1904.44 Retention and updating of old your employees; and what do I have to do? If you receive a forms. (3) the requested information from the Survey of Occupational Injuries and You must save your copies of the records that you keep under Part 1904. Illnesses Form from the Bureau of Labor OSHA 200 and 101 forms for five years (b) Implementation. (1) Does every Statistics (BLS), or a BLS designee, you following the year to which they relate employer have to send data to OSHA? must promptly complete the form and and continue to provide access to the No, each year, OSHA sends injury and return it, following the instructions data as though these forms were the illness survey forms to employers in contained on the survey form. OSHA 300 and 301 forms. You are not certain industries. In any year, some (3) Do I have to respond to a BLS required to update your old 200 and 101 employers will receive an OSHA survey survey form if I am normally exempt forms. form and others will not. You do not from keeping OSHA injury and illness have to send injury and illness data to records? Yes, even if you are exempt § 1904.45 OMB control numbers under the OSHA unless you receive a survey form. from keeping injury and illness records Paperwork Reduction Act (2) How quickly do I need to respond under § 1904.1 to § 1904.3, the BLS may The following sections each contain a to an OSHA survey form? You must inform you in writing that it will be collection of information requirement send the survey reports to OSHA, or collecting injury and illness information which has been approved by the Office OSHA’s designee, by mail or other from you in the coming year. If you of Management and Budget under the means described in the survey form, receive such a letter, you must keep the control number listed
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OMB Con- but only under certain conditions. An 3. Section 1952.4 is revised to read as 29 CFR citation trol No. employer may combine two or more follows: physical locations into a single 1904.4–35 ...... 1218–0176 establishment only when: § 1952.4 Injury and illness recording and reporting requirements. 1904.39–41 ...... 1218–0176 (i) The employer operates the 1904.42 ...... 1220–0045 1904.43–44 ...... 1218–0176 locations as a single business operation (a) Injury and illness recording and under common management; reporting requirements promulgated by (ii) The locations are all located in State-Plan States must be substantially Subpart G—Definitions close proximity to each other; and identical to those in 29 CFR part 1904 § 1904.46 Definitions (iii) The employer keeps one set of ‘‘Recording and Reporting Occupational business records for the locations, such The Act. The Act means the Injuries and Illnesses.’’ State-Plan States as records on the number of employees, Occupational Safety and Health Act of must promulgate recording and their wages and salaries, sales or 1970 (29 U.S.C. 651 et seq.). The reporting requirements that are the same definitions contained in section 3 of the receipts, and other kinds of business as the Federal requirements for Act (29 U.S.C. 652) and related information. For example, one determining which injuries and interpretations apply to such terms manufacturing establishment might illnesses will be entered into the records when used in this Part 1904. include the main plant, a warehouse a and how they are entered. All other Establishment. An establishment is a few blocks away, and an administrative injury and illness recording and single physical location where business services building across the street. reporting requirements that are is conducted or where services or (3) If an employee telecommutes from promulgated by State-Plan States may industrial operations are performed. For home, is his or her home considered a be more stringent than, or supplemental activities where employees do not work separate establishment? No, for to, the Federal requirements, but, at a single physical location, such as employees who telecommute from because of the unique nature of the construction; transportation; home, the employee’s home is not a national recordkeeping program, States communications, electric, gas and business establishment and a separate must consult with OSHA and obtain sanitary services; and similar 300 Log is not required. Employees who approval of such additional or more operations, the establishment is telecommute must be linked to one of stringent reporting and recording represented by main or branch offices, your establishments under requirements to ensure that they will terminals, stations, etc. that either § 1904.30(b)(3). not interfere with uniform reporting supervise such activities or are the base Injury or illness. An injury or illness objectives. State-Plan States must from which personnel carry out these is an abnormal condition or disorder. extend the scope of their regulation to activities. Injuries include cases such as, but not State and local government employers. limited to, a cut, fracture, sprain, or (1) Can one business location include (b) A State may not grant a variance amputation. Illnesses include both acute two or more establishments? Normally, to the injury and illness recording and and chronic illnesses, such as, but not one business location has only one reporting requirements for private sector limited to, a skin disease, respiratory establishment. Under limited employers. Such variances may only be disorder, or poisoning. (Note: Injuries conditions, the employer may consider granted by Federal OSHA to assure and illnesses are recordable only if they two or more separate businesses that nationally consistent workplace injury are new, work-related cases that meet share a single location to be separate and illness statistics. A State may only one or more of the Part 1904 recording establishments. An employer may grant a variance to the injury and illness criteria.) divide one location into two or more recording and reporting requirements Physician or Other Licensed Health establishments only when: for State or local government entities in (i) Each of the establishments Care Professional. A physician or other that State after obtaining approval from represents a distinctly separate licensed health care professional is an Federal OSHA. business; individual whose legally permitted (ii) Each business is engaged in a scope of practice (i.e., license, (c) A State must recognize any different economic activity; registration, or certification) allows him variance issued by Federal OSHA. (iii) No one industry description in or her to independently perform, or be (d) A State may, but is not required, the Standard Industrial Classification delegated the responsibility to perform, to participate in the Annual OSHA Manual (1987) applies to the joint the activities described by this Injury/Illness Survey as authorized by activities of the establishments; and regulation. 29 CFR 1904.41. A participating State (iv) Separate reports are routinely You. ‘‘You’’ means an employer as may either adopt requirements identical prepared for each establishment on the defined in Section 3 of the Occupational to 1904.41 in its recording and reporting number of employees, their wages and Safety and Health Act of 1970 (29 U.S.C. regulation as an enforceable State salaries, sales or receipts, and other 652). requirement, or may defer to the Federal business information. For example, if an regulation for enforcement. Nothing in employer operates a construction PART 1952—[AMENDED] any State plan shall affect the duties of company at the same location as a employers to comply with 1904.41, lumber yard, the employer may consider 2. The authority citation for Part 1952 when surveyed, as provided by section each business to be a separate is revised to read as follows: 18(c)(7) of the Act. establishment. Authority: 29 U.S.C. 667; 29 CFR part (2) Can an establishment include 1902, Secretary of Labor’s Order No. 1–90 (55 [FR Doc. 01–725 Filed 1–18–01; 8:45 am] more than one physical location? Yes, FR 9033) and 6–96 (62 FR 111). BILLING CODE 4510–26–P
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