4030 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

DEPARTMENT OF LABOR 8:30 am on March 26, 1996 and understanding (MOU), BLS retained extending through March 28th, if responsibility for conducting the Occupational Safety and Health necessary. Annual Survey Of Occupational Administration ADDRESSES: Comments are to be And Illnesses, while responsibility for submitted in writing in quadruplicate, administering the recordkeeping system 29 CFR Parts 1904 and 1952 or 1 original (hard copy) and 1 disk was transferred to OSHA (ex. 6). [Docket No. R±02] (51⁄4′′ or 31⁄2′′) in WP 5.0, 5.1, 5.2, 6.0 or OSHA’s responsibility includes ASCII. Note: Any information not developing, publishing, and providing Occupational and Illness contained on disk; e.g., studies, articles, outreach for recordkeeping regulations Recording and Reporting etc. must be submitted in quadruplicate. and instructions. In 1991, OSHA created Requirements All comments shall be submitted to: the Office of Statistics to assume these Docket Officer, Docket No. R–02, responsibilities and to meet the data AGENCY: Occupational Safety and Health needs of the agency. Administration (OSHA), Department of Occupational Safety and Health Labor. Administration, Room N–2625, U.S. Purpose of the Records Department of Labor, 200 Constitution ACTION: Notice of Proposed rule. The injury and illness records are Avenue NW., , DC 20210, intended to have multiple purposes. SUMMARY telephone (202) 219–7894. Comments of : The Occupational Safety and One purpose is to provide information Health Administration (OSHA) proposes 10 pages or less may be transmitted by for employers and employees, raising to revise Title 29 of the Code of Federal facsimile to (202) 219–5046 provided their awareness of the kinds of injuries Regulations Part 1904, Recording and the original and 4 copies of the and illnesses occurring in the workplace Reporting Occupational Injuries and comment are sent to the Docket Officer and their related . Increased Illnesses, the supplemental thereafter. Notice of intention to appear employer awareness should result in the recordkeeping instructions, and replace at the meeting is to be sent to Mr. Tom identification and voluntary correction the recordkeeping forms. This revision Hall, OSHA Division of Consumer of hazardous workplace conditions. In is expected to result in: a greatly Affairs, Docket No. R–02, Room N–3647, this role, the records serve as a simplified injury and illness U.S. Department of Labor, 200 ‘‘management tool’’ for the recordkeeping system for employers, Constitution Avenue NW., Washington, administration of company safety and improved information concerning DC 20210. health programs. Likewise, employees occupational injuries and illnesses, FOR FURTHER INFORMATION CONTACT: Ms. who are provided information on increased utility of the injury and Anne Cyr, OSHA, U.S. Department of injuries and illnesses will be more illness records at the establishment/site Labor, Office of Information and aware of hazards in the work level, increased use of modern Consumer Affairs, Room N–3647, 200 environment, and therefore more likely technology, including computers and Constitution Ave., NW., Washington DC to follow safe work practices, and report telecommunications equipment, and 20210. Telephone (202) 219–8148. workplace hazards. This would improved employee awareness and SUPPLEMENTARY INFORMATION generally raise the overall level of safety involvement. and health in the workplace. This rulemaking is part of the overall I. Background Another purpose for keeping these effort to simplify and revise Part 1904. Administrative History records is to provide OSHA compliance One section, Reporting of Fatality or staff with information which can Multiple Hospitalization Incidents, was Following the passage of the facilitate safety and health inspections. revised in a separate rulemaking. The Occupational Safety and Health (OSH) During the initial stages of an text of the revised § 1904.8, which Act of 1970, the Occupational Safety inspection, the inspector reviews the became effective May 2, 1994, is and Health Administration (OSHA) was injury and illness data for the included in this proposal as section formed to promulgate and enforce safety establishment and subsequently focuses 1904.12 due to reorganization of the and health regulations and standards. In his or her inspection efforts on the various sections of Part 1904. However, 1971, OSHA published the occupational safety and health hazards revealed by § 1904.12 in this proposal includes three injury and illness recording and the injury and illness records. additional changes which are intended reporting regulation, 29 CFR Part 1904. Another use of the injury and illness to further clarify the earlier revision. During that same year, the Secretary of records is to produce statistical data on Also included in this rulemaking is Labor delegated responsibility for the the incidence of workplace injuries and the revision of 29 CFR 1952.4. § 1952.4 occupational injury and illness illnesses, thereby measuring the establishes the recordkeeping and statistical program to the Bureau of magnitude of the injury and illness reporting requirements for States that Labor Statistics (BLS). problem across the country. BLS and have their own occupational safety and Since 1971, OSHA and BLS have participating States make the survey health programs and have been operated the injury and illness data available at an aggregate level by approved by OSHA to enforce safety recordkeeping system as a industry group for research purposes and health regulations in their State. effort. OSHA promulgated and enforced and for public information. OSHA also The revision of this section is a the recordkeeping regulations while will use employer specific information clarification of the requirements based BLS prepared survey forms, published to help focus its intervention efforts on on the existing interpretation of the recordkeeping forms and supplemental the most dangerous worksites and the current § 1952.4. instructions, provided outreach, and worst safety and health hazards. DATES: 1. Written comments on the conducted the Annual Survey Of proposed regulation must be Occupational Injuries And Illnesses. In Regulatory/Interpretation History postmarked on or before May 2, 1996. 1990 the agencies decided to reorganize When Part 1904 was first 2. A public meeting will be held in these duties, and the Department of implemented, industry safety experts Washington, D.C. in the U.S. Labor announced that the recordkeeping were concerned that the regulations and Department of Labor auditorium at 200 function was being transferred to OSHA. the instructions on the forms did not Constitution Avenue NW beginning at Pursuant to a memorandum of provide adequate guidance for Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4031 employers. They requested that the updated the medical treatment/first aid Other Criticisms Department of Labor provide additional lists, and addressed new recordkeeping OSHA enforcement policies of the instructions on employer recordkeeping issues. A short version of the 1980s led to increased awareness of obligations to clarify several Guidelines, A Brief Guide to recordkeeping requirements which recordkeeping issues. The Bureau of Recordkeeping Requirements for resulted in renewed criticisms of the Labor Statistics responded in 1972 by Occupational Injuries and Illnesses (ex. existing recordkeeping system. One publishing supplemental instructions to 7), was also produced. persistent objection has been that the the recordkeeping forms, BLS Report While the 1986 guidelines clarified current injury and illness recordkeeping 412, What Every Employer Needs To the existing requirements, concerns still guidelines are too lengthy and complex. Know About OSHA Recordkeeping (ex. persisted about the quality and utility of Another objection is that the current 1). These supplemental instructions definition of work relationship captures were designed to meet the needs of the injury and illness data. Some some cases which employers believe employers by providing detailed employers believed that the guidelines should not be considered work-related. information on when and how to record were too long and that some of the Examples include employees injured injury and illness cases on the recordkeeping concepts were too while participating in voluntary recordkeeping forms. complex and difficult to understand. A major concept established in the These continued concerns about the wellness programs, cases related to the consumption of food and drink, and supplemental instructions was the injury and illness records and the cases involving workers performing definition of work relationship. related statistics led to the 1987 personal tasks at the workplace during Although the Act and regulations Keystone National Policy Dialogue on non-work hours. required ‘‘occupational’’ or ‘‘work- Work-related Illness and Injury related’’ injuries and illnesses to be Recordkeeping (described in the Reports Reports recorded, neither provided a detailed Section below). The Keystone dialogue Since the middle 1980s, several definition of the terms. The 412 booklet group identified many problems with studies have evaluated the utility of the defined work relationship as follows: 1) the recordkeeping system and provided cases that occurred at the employer’s current OSHA injury and illness numerous suggestions for improving the recordkeeping system. The National establishment (on premises) were recordkeeping definitions. considered work-related; and 2) cases Research Council (NRC), the Keystone that occurred off the employer’s Under a Memorandum of Center, and the General Accounting premises were considered work-related Understanding (MOU) dated July 11, Office (GAO) each published reports if the employee was engaged in a work 1990 (ex. 6), the responsibility for which evaluated the recordkeeping activity or was present as a condition of administering the national injury and system and generated proposals for . illness recordkeeping system was improvement. The BLS 412 booklet was updated in transferred from the Bureau of Labor NRC Report: In 1984, because of 1973 and 1975. In 1978, the booklet was Statistics to OSHA. As a result, OSHA concern over the possible again updated to reflect changes in the developed and is now proposing this underreporting of occupational injuries regulations exempting small employers revision of the regulations, forms, and and illnesses and other issues related to from the recordkeeping requirements, supplemental instructions. the accuracy of the national data collected by the Bureau of Labor and to allow employers to computerize Compliance Activities their records. The updated versions of Statistics (BLS), Congress appropriated the instructions included lists of first In 1981 OSHA changed its use of funds for BLS to conduct a quality aid and medical treatments, flow charts employers’ injury and illness records in assurance study of its Annual Survey on to describe the recordkeeping decision- its programmed inspection activity. At Occupational Injuries and Illnesses. BLS making process, and answers to many of the beginning of a planned programmed requested the National Research Council the questions most frequently asked by inspection, the compliance safety and to convene an expert panel to address the issue of the validity of employer employers. health officer would do a ‘‘records-only records and the BLS annual survey, In response to requests from labor and check’’ to determine the lost workday problems related to determining and industry, and after publication in the injury incidence rate for the reporting occupational diseases, and Federal Register and a formal comment establishment. If the establishment had other issues related to the collection and period, the BLS 412 report series was a rate below the national average, the use of data on health and safety in the replaced in April of 1986 by the compliance officer would end the workplace. Recordkeeping Guidelines For inspection. Occupational Injuries And Illnesses (ex. In 1987, the National Research 2). The revised version of the Beginning in 1986, OSHA discovered Council issued a report, Counting supplemental instructions contained an numerous instances of significant Injuries and Illnesses in the Workplace: expanded question and answer format underreporting of injuries and illnesses. Proposals for a Better System (ex. 4), similar to the BLS 412 report, but The Agency began issuing large which contains the panel’s provided additional information on the penalties for recordkeeping violations. recommendations. Twenty-four specific legal basis of the requirements for These highly publicized recordkeeping recommendations were made (see Ch.8 recordkeeping under Part 1904. The cases resulted in an even greater of ex. 4), which generally were intended Guidelines provided clearer definitions awareness of, and sensitivity to, the to accomplish the following: (1) modify of the types of cases to be recorded, injury and illness recordkeeping the BLS Annual Survey to provide discussed employer recordkeeping requirements among the safety and increased information about the injuries obligations in greater detail, introduced health community. In 1989, OSHA and illnesses recorded; (2) discontinue exceptions to the on-premises discontinued its ‘‘records-only check’’ the supplementary data system and presumption of work relationship for policy of terminating inspections replace it with a grant program for instances where the application of the because of concerns that this policy States and individual researchers and general rule was considered might have been an incentive to include criteria for the detail and inappropriate or overly burdensome, underrecord injuries and illnesses. quality of data collected; (3) conduct an 4032 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules ongoing quality assurance program to feedback on the draft. This document Joseph Dear. The Committee identify underreporting on the BLS reflects many of the issues and concerns recommended that OSHA ‘‘immediately Annual Survey by comparing the raised. Written comments generated by publish the NPRM on recordkeeping for information on employers’ logs with the on-going dialogue have been entered public comment.’’ The Committee independent sources; (4) implement in the docket (ex. 12). reiterated its recommendation in its surveillance, GAO: An August 1990 report by the May, 1995 meeting. In addition, the including collection of exposure data; United States General Accounting ACCSH presented OSHA with specific (5) improve the collection of national Office, Options for Improving Safety recommendations on particular data; (6) and Health in the Workplace (ex. 3), provisions of the revision which are of implement an administrative data discussed the importance of the significance to the construction system which would allow OSHA to be employer injury and illness records, industry. OSHA has given the ACCSH able to obtain individual establishment including: (1) for many entities, the recommendations careful consideration data to conduct an ‘‘effective program general descriptive value to better and modified the proposal in several for the prevention of workplace injuries understand the nature and extent of areas. and illnesses * * *’’ (p.10); and (7) occupational safety and health The ACCSH recommendations, implement a thorough of problems; (2) identification by OSHA’s written briefing, and the recordkeeping practices in individual employers and employees of safety and relevant portions of the transcripts of establishments, using additional health problems in the workplace which the October and December 1994 ACCSH resources requested from Congress for will enable them to correct the meetings, are part of the public record that purpose so as to avoid reducing the problems; (3) use by OSHA to conduct (ex. 10). number of OSHA inspections of research, evaluate programs, allocate OSHA would like to have the benefit workplace hazards. resources, and set and enforce of public comment on the ACCSH Keystone: In 1987, The Keystone standards. The report focused on the use recommendations, as well as the Center, an independent non-profit of the records in OSHA enforcement, specific issues for comment and the organization that facilitates national particularly in targeting industries and provisions of the proposed rule. policy consensus-building dialogues, worksites for inspections and convened 46 representatives from labor determining the scope of inspections. Outline unions, corporations, health The GAO report found ‘‘possibly The following is an outline of the , government agencies, significant injury and illness remainder of this preamble. The Congressional staff and academia for a underrecording and subsequent regulatory text and appendices follow year-long dialogue to discuss underreporting’’ (p.3). Reasons for the preamble. occupational injury and illness inaccurate recordkeeping include: (1) recordkeeping. intentional underrecording in response II. Summary and Explanation In 1989, Keystone issued its final to OSHA inspection policies or 1. Reorganize sections 2. Definitions (Proposed § 1904.3) report, Keystone National Policy employer safety competitions; (2) a. lost workday Dialogue on Work-related Illness and unintentional underrecording because b. employee Injury Recordkeeping, 1989 (ex.5). The of a lack of understanding of the c. establishment report focused on four major topics: (1) recording and reporting system; and (3) d. first aid recordkeeping criteria; (2) OSHA inaccurate recordkeeping because of the e. health care provider enforcement procedures; (3) injury and lack of priority placed on recordkeeping f. medical treatment illness data systems; and (4) by employers which results in lack of g. responsible company official occupational illnesses. The report appropriate supervision of h. restricted work activity detailed issues within each topic and recordkeepers. The GAO noted that i. site controlling employer made specific recommendations. By OSHA’s revised enforcement j. subcontractor employee k. work environment topic and in summary, the Keystone procedures, which included increasing l. work related report recommended: (1) revision of the size of the fines for recordkeeping 3. Recording criteria—(Proposed § 1904.4) various aspects of the recording criteria; violations and modifying its records- 4. New case—(Proposed § 1904.4) (2) use of injury and illness data by review procedures, should help improve 5. 7 days to complete—(Proposed § 1904.4) OSHA for targeting enforcement and the accuracy of recordkeeping. The GAO 6. Computerize/centralize Log—(Proposed revision of the guidelines to make them recommended that the Department of § 1904.4) easily and uniformly understood; (3) Labor conduct studies to assess the 7. Computerize/centralize Incident Records— development of a national system for accuracy of the records using (Proposed § 1904.5) the collection and dissemination of independent data sources, evaluate how 8. Year-end summary—(Proposed § 1904.6) occupational injury and illness well employers understand the revised 9. Centralize records—(Proposed § 1904.7) 10. Retention—(Proposed § 1904.9) information; and (4) broadening the type guidelines [revisions could be tested 11. Access—(Proposed § 1904.11) of information collected concerning pre-publication], and utilize a 12. Fatality/multiple hospitalization occupational illness and making the recordkeeping audit program in selected reporting—(Proposed § 1904.12) information available to employees and enforcement activities. 13. Reports—(Proposed § 1904.13) government agencies for appropriate Advisory Committee on Construction 14. Exceptions/variance—(Proposed purposes such as research and study. Safety and Health (ACCSH): OSHA § 1904.15) In 1995, Keystone reassembled a provided the Advisory Committee on 15. Subcontractor records—(Proposed group of business, labor, and Construction Safety and Health § 1904.17) government representatives to discuss (ACCSH) with a written briefing on the 16. Mandatory Appendix B draft proposed changes to the draft proposal to revise 29 CFR Part a. Blood lead b. Cadmium recordkeeping system. OSHA shared its 1904 and made an oral presentation to c. draft proposed revision with the the Committee on October 13, 1994. d. Skin disorders participants. The draft was also During its meeting on December 9, 1994, e. Asthma reprinted in several national safety and the Committee presented its f. health publications. OSHA received recommendations to Assistant Secretary g. Bloodborne Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4033

h. Tuberculosis OSHA 300 changes in Part 1904. This proposed i. All other OSHA 301 rule would make 18 significant changes III. Specific Issues for Comment V. Legal Authority in the requirements of Part 1904: Issue 1—Exemptions—(Proposed § 1904.2) VI. State Plans Issue 2—Work relationship/severity— VII. Regulatory Impact Assessment 1. Reorganize the sections within the (Mandatory Appendix A) VIII. Regulatory Flexibility Certification rule to place the purpose, coverage and Issue 3—First aid/medical treatment— IX. Environmental Impact Assessment definitions for the rule at the beginning, (Proposed § 1904.3) X. Federalism XI. Public Participation in keeping with the commonly accepted Issue 4—Restricted work activity— regulatory format. The change would (Proposed § 1904.3) XII. Paperwork Reduction Act of 1995 also improve the logical placement of Issue 5—Musculoskeletal disorders— XIII. List of Subjects (Mandatory Appendix B) XIV. Authority the various sections, provide more Issue 6—Reluctance to record II. Summary and Explanation of the meaningful titles for the sections, and Issue 7—Employee involvement Proposed Rule, Supplemental combine sections where appropriate. Issue 8—Access/privacy—(Proposed Instructions The following table summarizes the § 1904.11) proposed reorganization of the rule: Issue 9—Software The changes to the recordkeeping IV. Forms system are being proposed as regulatory

REDESIGNATION TABLE

New section Old section

1904.1 Purpose ...... 1904.1 Purpose and scope. 1904.2 Coverage and exemptions ...... 1904.15 Small employers and 1904.16 Establishments classified in Standard Industrial Classification codes (SIC) 52±89, (except 52±54, 70, 75, 76, 79, and 80). 1904.3 Definitions ...... 1904.12 Definitions. 1904.4 OSHA Injury and Illness Log and Summary (OSHA Form 300 1904.2 Log and summary of occupational injuries and illnesses. or equivalent). 1904.5 OSHA Injury and Illness Incident Record (OSHA Form 301 or 1904.4 Supplementary record. equivalent). 1904.6 Preparation, certification and posting of the year-end summary 1904.5 Annual summary. 1904.7 Location of records ...... 1904.14 Employees not in fixed establishments. 1904.8 Period covered ...... 1904.3 Period covered. 1904.9 Retention and updating of occupational injury and illness 1904.6 Retention of records. records. 1904.10 Change of ownership ...... 1904.11 Change of ownership. 1904.11 Access to records ...... 1904.7 Access to records. 1904.12 Reporting of fatality or multiple hospitalization incidents ...... 1904.8 Reporting of fatality or multiple hospitalization incidents. 1904.13 Reports by Employers ...... 1904.20 Description of statistical program, 1904.21 Duties of employ- ers and 1904.22 Effect of State plans. 1904.14 Recordkeeping under approved State plans ...... 1904.10 Recordkeeping under approved State plans. 1904.15 Petitions for recordkeeping exceptions ...... 1904.13 Petitions for recordkeeping exceptions. 1904.16 Falsification of, or failure to keep records or reports ...... 1904.9 Falsification, or failure to keep records or reports. 1904.17 Subcontractor records for major construction projects...... New Section. Mandatory Appendix A. Work-relatedness ...... New appendix. Mandatory Appendix B. Recording of specific conditions ...... New appendix. Appendix C. Decision tree for recording occupational injuries and ill- New appendix. nesses.

2. Changes in recordkeeping restricted work activity. The proposal of the 180 day criteria. Should the days definitions. The recordkeeping system is would change the system to eliminate away from work count be capped? Is very dependent on the definitions used the counting of days of restricted work 180 days too short or long of a period? to determine the recording of specific activity altogether and only count the If so, should the count be capped at 60 cases. Some specific modifications number of days away from work. OSHA days? 90 days? 365 days? or some other included in the proposed § 1904.3 are to has found no evidence that the current time period? redefine ‘‘restricted work activity’’, restricted work activity day counts are Although not in the proposed rule, ‘‘establishment’’, and ‘‘medical being used in safety and health program OSHA is considering a modification to treatment’’; and provide new definitions evaluation. It therefore sees no purpose the concept of days away from work to for an ‘‘employee’’, ‘‘subcontractor in continuing the restricted work include days the employee would employees’’, ‘‘health care provider’’, and activity day count requirement. normally not have worked (e.g. ‘‘work environment’’. The following Employers will not be required to weekends, holidays, etc.). OSHA addresses each proposed change to the count days away from work that extend believes this change to calendar days definitions: beyond 180 days (six months). OSHA would greatly simplify the method of a. Eliminate the term ‘‘lost workdays’’, believes day counts greater than 180 counting days away by eliminating the by replacing it with a definition of days add negligible information for need to keep track of, and subtract out, ‘‘days away from work’’. The OSHA injury and illness case analysis while scheduled days off from the total time recordkeeping system has historically entailing significant burden when between the employee’s first day away defined lost workdays as involving both updating the OSHA records. OSHA and the time the employee was able to days away from work and days of solicits comment on the appropriateness return to full duty. OSHA asks for 4034 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules comment on whether the reduction of introducing the 60 day provision. The illnesses requiring only the treatments burden associated with this approach current injury and illness recordkeeping listed as first aid would be minor in justifies the change in the type of system defines an establishment as a nature and the recording of them would information that will be collected. single physical location that is in not be consistent with the intent of the Another potential benefit of changing operation for 1 year or longer. OSHA Act. OSHA also believes a finite list will to calendar days would be that the day believes the proposed shorter time reduce confusion, lead to consistent count would more accurately reflect the period (60 days) will facilitate the use recordkeeping decisions and greatly severity of the injury or illness. The day of information at more transient simplify the decision-making process. count would capture all the days the workplaces, such as construction sites. A treatment may be considered employee would not have been able to OSHA requests comment on the costs preventive only when there is no work- work at full capacity regardless of work and benefits of this change. related injury or illness prior to its use. schedules. For example, if an employee, The proposed definition of A treatment may not be defined as who normally does not work weekends, establishment includes the primary preventive when given to stop an is injured on a Friday and is unable to work facility and other areas such as existing work-related condition from work until the following Tuesday, the recreational and storage facilities, becoming worse. The only exception to ‘‘days away from work’’ would be three restrooms, hallways, etc. The current this rule is tetanus/diphtheria shots/ (3), using calendar days, rather than one system excludes both parking lots and boosters. Tetanus/diphtheria shots/ (1) day, using work days. If the same recreational facilities from the definition boosters will continue to be included as injury occurred on a Monday, the day of establishment. OSHA is proposing first aid treatment. OSHA seeks count would be three (3) using either that the current practice of excluding comment on whether this approach to calendar or workdays. Changing the day the company parking lot from the recording tetanus/diphtheria shots is count to calendar days would eliminate establishment be continued, but is appropriate, or whether they should be discrepancies based upon work including recreational facilities in the considered medical treatment. schedules. Thus, the day counts would definition (see section below for For further discussion of first aid and be easier to calculate and potentially discussion of exemptions to work- medical treatment, see Issue 3 in the more meaningful. relatedness). OSHA believes that, by Issues for Comment section of this One of the potential problems with including related geographic areas, such preamble. this change would be that economic as recreational facilities, the e. Define ‘‘health care provider’’. This information on lost work time as a recordkeeping system will be is a person operating within the scope measure of the impact of related simplified. OSHA requests comment on of his or her health care license, injuries and illnesses on work life this change. registration or certification. OSHA would no longer be available. The concept of separate recognizes that this definition differs Employers could, however, estimate establishments for separate activities from definitions of health care provider work time lost by applying a work day/ found in the current supplemental found in other government regulations calendar day factor to the recorded day instructions will be incorporated into and requests comment on its counts. OSHA solicits comment on the the regulations. When distinct and appropriateness for OSHA injury and idea of counting calendar days rather separate economic activities are illness recordkeeping purposes. OSHA than work days, in particular, what performed at a single physical location, is considering qualifying this definition, potential do these methods have for each activity may represent a separate for example by limiting it to personnel overstating (i.e., counting calendar days) establishment. For example, contract with specific . OSHA requests or understating (i.e. counting work days) construction activities conducted at the comment on this limitation. the severity of injuries and illnesses? same physical location as a lumber yard f. Redefine ‘‘medical treatment’’. b. Clarify ‘‘employee’’. ‘‘Employee’’ is may be treated as separate Medical treatment is defined to include defined in Section 3(6) of the Act. A establishments. Each distinct and any treatment other than first aid regulatory note is included within the separate activity should be considered treatment. The definition focuses on the definition to clarify that for OSHA an establishment when (1) no one nature of the treatment given and not on recordkeeping purposes ‘‘employees’’ industry description (Standard the person administering the treatment include those workers whom the Industrial Classification, 1987) includes (e.g. physician, registered health employer supervises on a day-to-day such combined activities, and (2) the professional, etc.). Any treatment not basis. These workers may include employment in each such economic included in the definition of first aid is workers provided by a temporary help activity is significant, and (3) separate considered medical treatment, making service, a contractor, or a personnel reports can be prepared on the number the two groups mutually exclusive. This leasing service. This is consistent with of employees, their and , approach provides clear guidance for case law and the interpretation sales or receipts, or other types of employers and thus eliminates any currently used by OSHA. establishment information. This ‘‘grey areas’’ that must be interpreted by c. Redefine ‘‘establishment’’. The approach is based on the definition of employers. For further discussion of definition of an establishment describes an establishment found in the Standard first aid and medical treatment, see the location the records cover. To be Industrial Classification Manual, 1987. Issue 3 in the Issues for Comment most useful the records must be specific d. Redefine ‘‘first aid’’. The definition section of this preamble. to a particular location. ‘‘Establishment’’ of first aid has been modified to consist g. Define ‘‘Responsible Company means a single physical location that is of a comprehensive list of treatments Official’’. The definition of responsible in operation for 60 calendar days or considered first aid. OSHA has company official is central to directing longer where business is conducted or attempted to include those treatments the accountability for the accuracy and where services or industrial operations that are, in and of themselves, completeness of the OSHA records for are performed. This definition is a associated with only minor cases. Any an establishment to the upper minor modification of the definition of treatment or care other than those found management level of the firm. The establishment found in the Standard on the first aid list would be considered proposed definition will place the Industrial Classification Manual, 1987. medical treatment for recordkeeping responsibility to certify the accuracy The definition was modified by purposes. OSHA believes injuries and and completeness of the Log and Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4035

Summary with an owner of the controlling employer at that was at the establishment as a member of company, an officer of the corporation, construction project. the general public rather than as an the highest ranking company official at k. Define ‘‘work environment’’. The employee; and excluding cases arising the establishment or his or her definition of work environment is solely from pre-existing conditions. . central to determining work-relatedness. As recommended in the Keystone OSHA believes that by requiring a The proposed definition is compatible report, the proposed revision continues higher level employee of the firm to with the definition traditionally used in to use the geography based presumption certify the Log, companies will have a the supplemental instructions. The of work-relatedness. Parking lots will greater incentive to take appropriate work environment is defined as the continue to be excluded from the measures to assure the accuracy and employer’s establishment and other proposed definition of establishment. completeness of the information. locations where employees are engaged Company access roads will be added to h. Define ‘‘Restricted Work Activity’’. in work-related activities or are present the exclusion. By excluding parking lots The definition of restricted work as a condition of their employment. and access roads, some injuries and activity will be modified to include l. Define ‘‘work-related’’. Although illnesses will be excluded while injuries and illnesses where the worker employers are required to record employees are arriving to or leaving is not capable of performing at full occupational, or work-related injuries from work. OSHA seeks input on capacity for a full shift (1) the task he and illnesses, the current regulations do whether the exception for parking lots or she was engaged in at the time of not provide a definition of work-related. should be continued, and/or whether injury or onset of illness; (2) any activity This proposal includes ‘‘work-related’’ OSHA should continue to exclude that he or she performed or was in the definition section of the injuries and illnesses that occur while expected to perform on the day of injury regulatory text and further clarifies the employees are commuting to and from concept in Mandatory Appendix A. The or onset of illness. OSHA believes this work. proposed definition is based on the While recreational facilities are being definition will focus on the hazardous definition in the current supplemental included in the definition of tasks that lead to serious injuries and instructions, but is modified to create establishment, injuries or illnesses illnesses and lead to greater consistency several new exceptions to the occurring on company recreational in the recording of these more severe presumption of work-relatedness, which facilities may still be excluded by the cases. For further discussion of are explained below. Additionally, for proposed ‘‘voluntary participation in restricted work activity, see Issue 4 in injury and illness recordkeeping wellness programs’’ exception the Issues for Comment section of this purposes, if an event in the work explained below. The exception will be preamble. environment either caused or based on the activity the employee was I. Define ‘‘site controlling employer’’. contributed to the case or aggravated a engaged in rather than the physical A site controlling employer is an pre-existing condition, then it is location itself to preserve and simplify employer in the construction industry considered work-related. the geography based presumption of (SIC codes 15, 16 and 17) with It has also been suggested that work- work-relatedness. contractual, legal and/or practical relationship should be limited to where Several new and/or revised activity- control over the performance, timing, or it is demonstrated that the work based exceptions to the presumption of coordination of other employers’ work environment contributed substantially work-relatedness are being proposed. on the construction project. An (fifty percent or more) to the condition. OSHA requests comment on any and all employer (such as a general contractor) OSHA requests input on the proper of the following proposed exceptions: that retains another employer to work level of work-relationship that should • Cases resulting solely from on the project is presumed to have be used. OSHA requests input on how voluntary participation in wellness sufficient control over the work contribution can be objectively programs, fitness activities, recreational subcontractor’s performance to be measured for such a purpose. activities, and medical programs. This considered a site controlling employer. For OSHA injury and illness would include cases occurring during In addition, an employer (such as a recordkeeping purposes, the concept of exercise activities, blood donations, construction manager) is a site ‘‘work-related’’ has traditionally been physicals, flu vaccination programs, etc. controlling employer if it has based on a geographic concept of the unless the employee was participating managerial or supervisory authority work environment. The presumption as a condition of employment. with respect to employers engaged on has been made that if injuries or • Cases involving eating, drinking, or the project, regardless of whether it has illnesses occur at the employer’s preparing one’s own food when a contractual relationship with those establishment, then the case is work- unrelated to occupational factors. This employers. For further discussion of related. This includes cases occurring exception would eliminate the subcontractor records, see number 15 of while the employee is on , in the recording of cases such as an employee this section. rest room or in storage areas when who cuts a finger opening a can of food j. Define ‘‘subcontractor employees’’. located on the employer’s premises. for lunch or is burned while drinking This proposal requires site controlling Many employers have criticized this coffee. employers in the construction industry, policy, citing cases that occur at the • Cases that are solely the result of for construction projects with an initial establishment that they believe have a employees doing personal tasks (totally total contract value of $1 million or limited workplace relationship. As a unrelated to their job) at the more, to maintain separate injury and result, the 1986 guidelines provided for establishment outside of normal illness records for certain on-site several exceptions to this rule: removing working hours. This would exclude employees other than their own, as employee parking lots and recreational those cases where the employee is described in number 15 of this section. facilities from the definition of the injured because the employer was Separate records must be kept for those premises under certain conditions; allowing the worker to use employer ‘‘subcontractor employees’’ who are excluding those cases where symptoms equipment at the establishment for present at a construction project in arise at work, but are caused by personal uses outside of normal working connection with their construction job, accidents or exposures away from work; hours. OSHA requests comment on the and are not employees of the site excluding cases where the employee appropriateness of this approach, 4036 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules especially on the limitation that these sneezing, or coughing, provided the restriction of work or motion, medical events occur ‘‘outside of normal work activity does not involve a job-related treatment, or transfer to another job. hours’’. motion and the work environment does Currently, all diagnosed (recognized) • Cases resulting solely from acts of not contribute to the injury or illness. occupational illnesses are to be violence committed by family members, The Keystone report recommended this recorded, regardless of severity. The a former spouse, or self-inflicted when exemption. The report suggested that distinction between illnesses and unrelated to the employee’s work injuries and illnesses related to a pre- injuries is currently based on the nature situation. This exemption is based on existing condition should not be of the precipitating event or exposure. the Keystone’s recommendation that recorded if they are not related to an Cases which result from instantaneous injuries and illnesses involving an identifiable work activity. The exclusion events are considered injuries, and cases intentional act of violence in the work would not apply if it involved repetitive which result from non-instantaneous environment should be considered motion or if the work environment events are considered illnesses. This work-related unless it can be clearly either caused or contributed to the current distinction between injuries and established that the act was not related injury/illness. illnesses often results in confusion and to the employee’s work situation. The • A mental illness will not be arbitrary and counter-intuitive decisions intent of the Keystone group was to considered work related, except mental on how to record a case. For example, exclude those cases that are clearly illnesses associated with post-traumatic a small cut resulting in an infection related to a domestic dispute that leads stress. OSHA seeks input on the would be recorded as an injury, even to subsequent violence in the following questions: though infection is commonly workplace, such as a worker who is (A) How should OSHA define mental considered an illness. assaulted by a spouse or ex-spouse. health conditions for recordkeeping The proposed change would eliminate For situations involving violence purposes, and when and how should the need for employers to make a committed by individuals other than the conditions be entered into the injury distinction between injuries and family members or a former spouse, and illness records? illnesses. One set of criteria would be OSHA believes it would be difficult, if (B) How should employers determine used to evaluate all cases thereby not impossible, to determine if the case the work-relatedness of mental health minimizing confusion and inconsistent was related to work or to a domestic conditions? recording. This proposal represents a situation. For this reason, the exemption (C) How would employers gain major simplification of the to work-relatedness has been limited to knowledge of mental health conditions, recordkeeping system, which would violence committed by family members given the issue of patient/doctor result in more accurate injury and or former spouses. Personal acts of confidentiality? illness data, and reduce the violence perpetrated by employees, co- For injury and illness recordkeeping recordkeeping burden for employers workers, customers, or others would not purposes, OSHA has historically who are required to maintain records. be excluded. OSHA requests comment evaluated injuries and illnesses Currently, detailed data for coding on whether this exemption should be experienced by employees working in cases is collected by BLS only for expanded to other kinds of personal their homes as cases occurring off the injuries and illnesses that involve days relationships. If so, how should it be employer’s premises. Because away from work. If recordkeeping defined? Also, should the definition of alternative work place policies changes are made and no changes are family be limited or defined? If so, how? (allowing employees to work out of their made to the current BLS survey • Cases involving workers who were homes) are becoming more methodology, separate information for never engaged in any duty at work that commonplace, OSHA is incorporating a injuries and illnesses will no longer be could have placed stress on the affected section within Mandatory Appendix A published by BLS for cases that do not body part. This would exclude those to address the issue of ‘‘work- result in days away from work. cases where symptoms arise at work, relatedness’’ for employees who work at Published information would continue but are caused by accidents or home. An injury or illness will be to be available for combined injuries exposures away from work. considered work-related if it occurs and illnesses, combined injuries and • Cases involving workers who were while the employee is performing work illnesses resulting in days away from never exposed to any chemical or for pay or compensation in the home, if work and combined injuries and physical agent at work that would be the injury or illness is directly related to illnesses without days away from work. associated with the observed injury or the performance of work rather than the In addition, if the survey methodology illness. This would also exclude those general home environment or setting. were modified to collect and code a cases where symptoms arise at work, OSHA is considering whether this sample of case characteristics for cases but are caused by accidents or policy should be maintained, or which do not involve days away from exposures away from work. whether work-relatedness should be work, separate injury and illness • Cases resulting solely from activity presumed for injuries and illnesses of information could be published for all in voluntary community or civic these employees. OSHA solicits cases. projects away from the employer’s comment on this issue. The proposed criteria for recordable establishment. This reflects and clarifies For further discussion of work occupational injuries and illnesses the work-relationship criteria of injuries relatedness, see Issue 2 in the Issues for would require employers to record any and illnesses occurring away from the Comment section of this preamble. case where (1) an injury or illness exists; employer’s establishment. Cases 3. Modify the meaning of ‘‘recordable and (2) is work-related; and (3) meets occurring away from the employer’s occupational injury or illness’’ (see one or more of the following criteria: (a) establishment are considered work- proposed section 1904.4 in the involves medical treatment; OR (b) related if the employee is engaged in a regulatory text). At the present time involves death, loss of consciousness, or work activity or is there as a condition certain injuries are to be recorded, in-patient hospitalization for treatment; of employment. namely those which result in death, and OR (c) involves a day(s) away from • Cases that result solely from normal injuries other than minor injuries work, restricted work activity, or job body movements, including walking requiring only first aid and which do transfer; OR (d) includes any condition unencumbered, talking, tying a shoe, not involve loss of consciousness, as listed in Mandatory Appendix B. Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4037

4. Provide clear guidance for period? Should different conditions less paperwork burden for employers determining when an injury or illness (e.g., back cases, asthma cases, etc.) have without compromising the quality of case is resolved. Determination of case different time intervals for evaluating those records. The provisions for resolution is particularly important new cases? computerization parallel the proposed because employers may be dealing with OSHA is also seeking input for an changes for computerization of the a reinjury or recurrence of a previous improved way to evaluate new cases. OSHA 300 Log found in proposed case and must decide whether the Should a new category of cases be § 1904.4. recurrence is a ‘‘new case’’ or a created to capture information on 8. Modify the proposed § 1904.6 continuation of the original case. recurring injuries and illnesses? One (formerly 1904.5) to provide a new title, Historically, the supplemental option is to add an additional ‘‘check require annual average number of instructions to the recordkeeping box’’ column to the proposed OSHA employees and total hours worked by all regulations required employers to Form 300 for identifying those cases employees to be included in the year- evaluate previously recorded injuries that are recurrences of previously end summary, and require a responsible and illnesses as new cases if they were recorded injuries and illnesses. This company official to certify the accuracy aggravated by additional work-related would allow employers, employees and and completeness of the records. The events or exposures. OSHA developed OSHA inspectors to differentiate section would be titled ‘‘Preparation, and included new guidance for between one time cases and those that Certification and Posting of the Year- evaluating cumulative trauma disorders are recurrent, chronic conditions. This End Summary’’. The proposal to require as new cases in the Ergonomics Program approach may help to remove some of an estimate of the employees’ total Management Guidelines For the stigma of recording these types of hours worked to be listed on the year- Meatpacking Plants (ex. 11) which were disorders and lead to more complete end summary would facilitate published in 1990. The ‘‘Meatpacking records. OSHA solicits input on this analysis and incidence rate calculation. Guidelines’’ provide: If and when an approach. Will a recurrence column An injury and illness incidence rate is employee who has experienced a reduce the stigma of recording these the number of injuries and/or illnesses recordable CTD becomes symptom free types of cases? Should recurrences be related to a common exposure base of (including both subjective symptoms included in the annual summaries? 100 full-time workers. The common and physical findings), any recurrence Should a time limit be used to limit the exposure base enables meaningful of symptoms establishes a new case. use of a recurrence column? comparisons of the data regardless of 5. The proposal will also require that Furthermore, if the worker fails to industry, firm size and time period. the proposed forms (OSHA 300 and 301) return for medical care within 30 days, Information on annual average be completed within 7 calendar days, the case is presumed to be resolved. employment and total hours worked can rather than the currently required 6 Any visit to a health care provider for be obtained from or other similar complaints after the 30-day workdays. OSHA believes this will simplify the requirements by replacing company records, and is often available interval ‘‘implies reinjury or reexposure from other reports required by the to a workplace hazard and would a varying amount of time (depending on the establishment’s work ) with government, such as represent a new case.’’ insurance or workers’ compensation OSHA is now proposing to expand a standard week. reports. For some employers, the added the use of the criteria found in the 6. Enhance the ability to computerize/ burden will be negligible because of ‘‘Meatpacking Guidelines’’ to all cases centralize the OSHA 300 Log in (including injuries and illnesses of the proposed § 1904.4. The current their participation in the BLS Annual back and lower extremities), while regulations and instructions provide for Survey of Occupational Injuries and increasing the number of days to 45. A computerization of the OSHA 200 Log, Illnesses which already requires a recurrence of a previous work-related providing that the employer has compilation of this information. injury or illness will be presumed to be available at the establishment a paper Approximately 10 percent of employers a new case when it either (1) results copy of the Log current within 45 who regularly are required to keep from a new , or (2) 45 calendar days. This proposal would records are selected each year to days have elapsed since medical allow employers to keep their OSHA participate in the BLS survey. OSHA treatment, restricted work activity and Log on computer, provided that the requests comment on the costs and days away were discontinued and the employer is able to produce a copy of benefits associated with this last signs or symptoms were the Log within 4 hours of a request by requirement and suggestions for experienced. This presumption is an authorized government alternative methods for collecting the rebuttable by medical evidence representative who is permitted access information necessary to calculate these indicating that the prior case had not to the Log under proposed § 1904.11. incidence rates. been resolved. In doing so, OSHA This proposal will reduce the The proposal will require the believes it will simplify the decision- employer’s cost of recordkeeping and employer to post the year-end summary making process for determination of a allows for maximum flexibility when for the entire year, from February 1 to ‘‘new case’’ and result in more complete employers choose to computerize their January 31 of the following year. and consistent data. This method of records, without decreasing the access Because the records are kept on a defining case resolution/duration to those records by authorized calendar year basis, OSHA believes one should provide better data on the personnel. month (January) is a reasonable time incidence of illness cases that frequently 7. Allow for the computerization of period for completing the summary last only 2–3 weeks (e.g. dermatitis, Incident Records in proposed § 1904.5. section of the form. The year long some CTDs, etc.) and recur on a regular At the present time, the regulations posting requirement will impose no basis. provide for the computerization of the additional burden on the employer OSHA solicits comment on the OSHA 200 Log, but not for the while presenting employees with the appropriateness of the 45-day interval. computerization of the supplementary opportunity to examine the totals Is 45 days too short or long of a period? record, the OSHA 101. This proposal throughout the year. This requirement If so, should the period be 30 days? 60 would allow employers to computerize will also allow employees hired during days? 90 days? or some other time both of the forms, which may result in any time of the year to gain knowledge 4038 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules about the safety and health environment regardless of employment size of the modified to clarify that the request for of the workplace. location. The proposal modifies this access by authorized government 9. Modify the location requirements to requirement by allowing an employer to representatives can be made in person provide for enhanced centralization of consolidate its records for all or in writing. This, in conjunction with records. This proposal would combine establishments with less than 20 proposed § 1904.13, will allow for the current § 1904.14, Employees not in employees as long as the establishment collection of the records through the fixed establishments, and some of the location is specified in the Department mail. provisions for centralization of records column on the proposed OSHA Form Currently, only government found in the current § 1904.2, Log and 300. representatives are authorized access to summary of occupational injury and 10. Modify the retention of records the injury and illness supplementary illness, into the proposed § 1904.7, section (§ 1904.6) by renumbering and forms (OSHA No. 101). This proposal Location of records. The new section retitling it to § 1904.9 Retention and will expand the access authorization to contains criteria for records pertaining updating of work-related injury and employees, former employees, and their to employees who either work at an illness records, reducing the retention designated representatives. OSHA establishment, or who report to an period from five to three years, and believes this will increase employee establishment but work elsewhere, or requiring employers to update the injury and/or labor groups’ ability to perform who are engaged in physically dispersed and illness records during the three year meaningful safety and health program work activities. Under the current retention period to include newly analysis. system; (1) records pertaining to discovered injuries and illnesses. The The section will also be modified to employees that report to an employer will be required to revise the require employers to provide copies of establishment must be kept at the Log to reflect changes which occur in the OSHA Log to authorized individuals establishment, (2) for employees that previously recorded injuries and at no cost. This will remove existing report to an establishment but work illnesses, including changes in the barriers to easy access to the forms by elsewhere, the records must be kept at count of days away from work. employees, former employees and their the establishment where they report, Employers must also update totals or designated representatives. and (3) when employees do not report summaries at least quarterly. OSHA asks The proposal will specify time limits to a fixed establishment on a regular whether the summary update should be the employer must meet in providing basis, the records must be kept in a more or less frequent? Employers will the injury and illness records once a central location with telephone access. not be required to update the OSHA request of access is made. Employers The location requirements will be Form 301 to reflect changes in must provide: 1) copies of the OSHA modified to allow for the maintenance previously recorded cases. Forms 300 and 301 within 4 hours of a of records at an alternate, centralized The current § 1904.2 states that request made in person by an location. The current regulations do not employers shall maintain a Log and authorized government representative; provide for centralization of the summary of injuries and illnesses, 2) access to the OSHA Forms 300 and supplementary records, but do allow which has been interpreted to require 301 for review by the close of business centralization of the OSHA 200 Log, the updating of the Log, but not the on the next scheduled workday when a providing that the employer has updating of supplementary records or request is made by an employee, former available at the establishment a paper annual summary, to reflect newly employee or their designated copy of the Log current within 45 discovered cases or to reflect newly representative(s); 3) copies of the OSHA calendar days. This proposal would discovered information concerning a Forms 300 and 301 within seven eliminate the need for a current copy of case. calendar days when a request is made the required records at the The proposed change would clarify by an employee, former employee or establishment, provided the employer is the employers’ obligations to update their designated representative(s); or 4) able to produce copies of the records these records during the three year within 21 calendar days of a written within 4 hours of a request by an retention period, if and when they request received from an authorized authorized government representative receive additional or updated government agency. OSHA solicits who is permitted access to the records information concerning a case. input on these time limitations. Are under the proposed § 1904.11. The 11. Modify the access to records they reasonable? Should they be employer can either transmit a copy of section, currently § 1904.7 and proposed shortened or extended? the records to the worksite or to the § 1904.11, to require employers to 12. Clarify the requirements of government representative’s office. This provide copies of records to government reporting fatalities and multiple proposal allows for greater flexibility representatives. The current section hospitalization incidents, currently when employers choose to centralize states that ‘‘Each employer shall § 1904.8 and proposed § 1904.12. As can and/or computerize their records provide, upon request, records provided be seen in Section III. of the preamble without decreasing the access to those for in §§ 1904.2, 1904.4 and 1904.5 for to the April 1, 1994 final rule of the records by authorized individuals and inspection and copying * * *’’. In some reporting requirements (FR Vol. 59, No. provides for recent and future instances, instead of providing copies of 63, 15599), it was OSHA’s intent to technological developments. OSHA the records, some employers have require employers to make their reports requests comment on situations where attempted to provide OSHA compliance in a manner which allows OSHA the 4 hour requirement may be personnel only with access to the immediate access to the information. infeasible. Should the requirement be records, with the copying to be done by However, because the regulatory text restricted to business hours, and if so, . The proposed change would reads, ‘‘shall orally report’’, there is the to the business hours of the clearly require employers to provide possibility that some employers may establishment to which the records copies of the records to government leave a message on an answering pertain or the establishment where the personnel authorized to access injury machine during non business hours to records are maintained? and illness records. satisfy the requirement. Therefore, for The current system requires a separate The section, compatible with section clarification purposes, the regulatory set of records for each single physical 1910.20 Access to Employee Exposure text will be changed to read ‘‘* ** location of a multi-establishment firm, and Medical Records, will also be shall, report the fatality/multiple Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4039 hospitalization by telephone or in need for this variance. All exemptions illnesses experienced by ‘‘subcontractor person to the Area Office of the granted prior to the publication date of employees’’ whose employers, because Occupational Safety and Health the final rule of revised Part 1904 will of their size, are covered by the OSHA Administration (OSHA), U. S. be null and void. injury and illness recordkeeping Department of Labor, that is nearest to 15. Require comprehensive records requirements. Should this requirement the site of the incident during regular for ‘‘subcontractor employees’’ in the be expanded to record the injuries and business hours, or by using the OSHA construction industry in proposed illnesses experienced by all emergency toll-free central telephone § 1904.17. The Keystone report ‘‘subcontractor employees’’ on site, number (1–800–321–OSHA [6742]) originally proposed the use of ‘‘site regardless of the employer’s status during non business hours.’’ logs’’ or comprehensive injury and under the recordkeeping requirements OSHA will also clarify the illness records for major construction coverage? requirement to report three or more in- activities. The report noted that The site-controlling employer would patient hospitalizations which occur at construction sites are normally not be responsible for updating the a single site. The site controlling composed of multiple contractors and records or entering counts of days away employer or designee will be subcontractors, each of which may be from work or restricted workdays for responsible for making the report if no present at the site for a relatively short these ‘‘subcontractor employees’’. The more than two employees of a single period of time. Under the current ‘‘actual’’ employer of the worker (if not employer were hospitalized but, regulations there are no records readily otherwise exempt from OSHA collectively, three or more workers were available to represent the injury and recordkeeping requirements) would be hospitalized as in-patients. illness experience for the entire site. responsible for completing in detail any The OSHA toll-free telephone number Accordingly, the proposal would entries on their own OSHA records. will also be added to the regulatory text require site-controlling employers (or Employers covered by the standard for for clarification purposes. their designees) in the construction the Process Safety Management of 13. Clarify an employer’s industry to maintain a separate record Highly Hazardous Chemicals; responsibility to report injury and reflecting the injury and illness Explosives and Blasting Agents, 29 CFR illness information to the Secretary of experience of employees working for 1910.119, are currently required to keep Labor and the Secretary of Health and construction firms other than their own, similar records. Human Services. The proposed working at the construction site when The injuries and illnesses recorded for § 1904.13 consolidates current the initial construction contract value ‘‘subcontractor employees’’ under this §§ 1904.20, 1904.21, and 1904.22 and exceeds $1,000,000. In addition to the requirement would not be included in reflects the transfer of some normal OSHA Log entry and Incident the national statistics generated by the responsibilities from the BLS to OSHA. Record (OSHA Forms 300 and 301) BLS Annual Survey. Records for Injury and illness data required to be which must be completed for all injuries ‘‘subcontractor employees’’ will be kept maintained by employers may be and illnesses involving the site separately from the OSHA 300 Log; collected periodically by mail or other controlling employer’s own therefore, while site controlling means. Data could be collected for a ‘‘employees’’, a separate, additional employers and subcontractors with 11 variety of purposes, including but not record requiring an abbreviated entry or more employees will both maintain limited to, injury/illness surveillance; shall be completed for injuries and the injury and illness records, there will development of information for illnesses of ‘‘Subcontractor employees’’. be no double counting of injuries and promulgating or revising safety and (‘‘Subcontractor employees’’ are defined illness in the statistical system. health standards; evaluating the as employees of construction firms (in An alternative to this section has been effectiveness of OSHA’s enforcement, SICs 15,16, and 17) who are present at suggested: Each contractor with 11 or training and voluntary programs; public a construction project in connection more employees in an individual information; and for directing OSHA’s with their job(s) who are not employees project, shall yearly or upon completion program activities, including workplace of the site controlling employer at that of their work on the project, provide the inspections. construction project.) The site project owner, or agent for the owner, 14. Change the procedure for controlling employer would only have with a copy of their project specific petitioning recordkeeping exceptions. to record injuries and illnesses of OSHA 300 Log. The project owner The current variance section will be ‘‘subcontractor employees’’ who are would have the responsibility to collect deleted. Instead, all requests for employed by construction employers the data and send it to OSHA, as recording exceptions or variances will with 11 or more employees at any time required. OSHA invites public comment be made pursuant to the procedures in during the previous calendar year. The on this alternative. 29 CFR 1905. This change eliminates site-controlling employer would only be 16. Provide special guidance in a duplicate sets of rules/procedures found required to enter the name of the injured mandatory appendix for the recording of in Title 29 of the Code of Federal ‘‘subcontractor employee’’, his or her specific types of injuries and illnesses Regulations. The ability to request an company, date, and a brief description (see proposed Mandatory Appendix B). exception or variance to the of the injury or illness. The site OSHA believes all of these conditions requirements under Part 1904 will controlling employer has the option of are recordable under the current continue using the procedures outlined using a separate OSHA Form 300, an recordkeeping requirements. However, under Part 1905. equivalent form, or a collection of in order to capture significant non-fatal Under the current recordkeeping records obtained from the subcontractor cases that may not meet the other requirements, one variance has been employers (e.g. photocopies of general criteria contained in this granted to AT&T, and subsequently subcontractors’ Logs) to satisfy this proposal, OSHA has developed a listing expanded to the Bell companies. The requirement. The increase in burden for of specific conditions and variance allows AT&T to keep records of employers is offset for those employers corresponding recording criteria for its ‘‘field force’’ by division, rather than who already maintain information on each condition, and has incorporated by establishment. The centralization of these cases for liability and other the listing into the proposed regulations records provision contained in this purposes. OSHA invites comment on as a mandatory appendix. The proposal will eliminate the continued limiting the requirement to injuries and application of this list will assist in 4040 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules collecting more timely and complete burden on employers may be reduced lead standard (29 CFR data on non-minor occupational when parallel requirements exist. 1910.1025(j)(2)(B)). Employers would illnesses and injuries which are serious, OSHA believes that early recognition record cases where an employee’s blood significant or disabling but otherwise and recording of injuries and illnesses lead level is in excess of 40 micrograms would not be captured consistently by promote more timely resolution of the (µg) per 100 grams of whole blood. the other recording criteria discussed in hazardous conditions causing them. The OSHA asks for input on what level change number 3 above. The application recording of injuries and illnesses in should be used and any other criteria of the list will also provide clear their early stages provides information which could be used to record lead direction that is needed by employers to that would allow the employer to related illnesses. determine the proper recording of these correct hazardous conditions before (b.) Cadmium. Employers would conditions, and will incorporate the they result in material impairment or do record cases where an employee’s recordkeeping guidance that OSHA has more serious damage to the employee. cadmium levels are as follows: level of developed in various guidelines, For this reason, the proposed criteria for cadmium in urine (CdU) exceeding 3 directives and letters of interpretation. recordable conditions are not limited to micrograms per gram of creatinine (µg/ The current recordkeeping system clinical diagnosis of an illness or injury g Cr); level beta-2 microglobulin in requires ‘‘all’’ occupational illnesses to by a physician. Recording of conditions urine (β2–M) exceeding 300 micrograms be recorded. An occupational illness is listed in the Mandatory Appendix B per gram of creatinine (µg/g Cr); or level currently defined as ‘‘any abnormal when the applicable criteria are met will of cadmium in blood (CdB) exceeding 5 condition or disorder’’ arising from a enhance the utility of the log as an micrograms per liter of whole blood (µg/ non-instantaneous work-related event or information source and management lwb). These criteria are based upon the exposure. This definition is intended to tool. surveillance levels found in the collect comprehensive information on OSHA selected the conditions listed Cadmium Standard, 1910.1027. occupational illnesses as soon as they in Appendix B using multiple criteria, (c.) Hearing loss. Employers would are detected or recognized. Detection or as follows: 1) The condition would not record any work-related case resulting recognition can result from a clinical be recorded, or would not be recorded in an average shift of 15 decibels or diagnosis, or through lab tests, x-rays, or accurately or consistently, using the more at 2000, 3000 and 4000 hertz in other diagnostic techniques. The general criteria, 2) The condition occurs one or both ears as measured from the language of the current general illness commonly and large numbers of employee’s original baseline established recording criteria is so broad and employers need specific guidance, and/ under 29 CFR Part 1910.95 inclusive that, in theory, it should or 3) The condition has a history of Occupational Exposure. The encompass all illnesses, regardless of controversy that warrants specific hearing test may be adjusted for aging severity or duration. However, because guidance. If any of these conditions and the recorded case may be removed there is no specific guidance for were met, OSHA also considered 1) if a retest performed within 30 days individual conditions, employers are existing standards covering the does not confirm the original shift. A often unsure of which diagnostic results condition or hazard, 2) existing presumption of work-relatedness is used constitute detection or recognition of an interpretations covering the proper for hearing loss occurring to employees illness that should be entered into the recording of the condition, and/or 3) covered by the records. threshold recording criteria that could Exposure standard, i.e. those who are OSHA believes that by providing be developed using objective methods exposed to noise levels in excess of an specific guidance for specific for determining the proper recording of 85 dB 8 hour time weighted average. conditions, even though that guidance an injury or illness. OSHA asks for The lowest action level in the noise may be less inclusive than the general input on whether these criteria are standard is an average shift of 10 definitions currently in use, employers appropriate, or whether other criteria decibels or more at 2000, 3000 and 4000 will be more likely to understand and should be used for determining which hertz. OSHA is proposing the 15 decibel comply with the recordkeeping conditions are listed in Appendix B. criteria for recordkeeping purposes to requirements and the data will be OSHA also asks for input on the specific account for variations in the reliability improved. criteria that have been chosen for each of individual audiometric testing In many instances, OSHA standards condition, including the effects of results. require employers to conduct certain adopting these criteria, possible OSHA asks for input on which level tests or medical evaluations. In most alternatives, and the potential benefits of a shift in hearing should be used as cases, the lowest test results or medical and costs associated with various a recording criteria; 10 decibels? 20 criteria used as action thresholds within alternatives. decibels? 25 decibels? For each level, the standards are being proposed as the The listed conditions must be what baseline should be used? recording criteria for injury and illness recorded and entered into the injury and Preemployment (original) baseline? recordkeeping purposes. OSHA does not illness records when the proposed Audiometric zero? Is adjusting for believe that the recordkeeping criteria criteria are met. Some of these appropriate? are restricted by these action thresholds conditions are: (d.) Skin disorders. Employers would prescribed in specific standards, but (a.) Elevated blood lead levels. The record skin disorders lasting beyond 48 believes that using the same criteria for current recordkeeping system requires hours, including, but not limited to, different standards and regulations employers to record cases where an allergic or irritant dermatitis. OSHA improves the simplicity of the overall employee’s blood lead level is in excess asks if there are significant skin regulatory system. For example, the of 50 micrograms (µg) per 100 grams of disorders, such as urticaria, which may lowest biological and other monitoring whole blood. This has been the criteria not be captured by this criterion test results used as threshold levels in in the recordkeeping guidelines since coupled with the general recording the lead and cadmium standards will be 1986. OSHA is proposing to revise this criteria (i.e. medical treatment, used as the recording criteria. Under criteria to 40 micrograms (µg) per 100 restricted work activity, days away from such circumstances, employers are grams of whole blood to match the work, etc.)? required to use a single set of criteria to lowest biological monitoring test result (e.) Asthma and other obstructive meet the obligations of both rules. The used as an action threshold within the airway disease. Employers would record Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4041 an initial episode of work-related result in exposures to blood or other for Comment section regarding asthma diagnosed by a health care potentially infectious materials to the confidentiality for further discussion of professional. Employers would also eyes, mouth, other mucous membrane, the employee privacy concerns.) These record subsequent work-related or non- intact skin would not be OSHA recording criteria apply to all employees episodes that result in the recordable. covered by the Act and are not limited administration of prescription drugs OSHA is aware that some health care to those covered by the Bloodborne and/or diagnosis by a health care facilities already collect data on all Pathogens Standard. provider. There are an estimated bloodborne pathogens exposure (h.) Tuberculosis infection or disease. 200,000 cases of incidents because these events are OSHA is proposing that newly detected every year according to the National believed to be of serious magnitude. For tuberculosis infections and cases of Institutes of Health. There are over 250 example, many employers collect active tuberculosis in workers with identified agents found in a diverse information about needle punctures, occupational exposure be recorded. The range of materials and industrial blood splashes to the eyes, and criteria proposed is consistent with that processes that can cause occupational exposures on non-intact skin. In light of published by previous OSHA directives asthma. OSHA believes it is essential to this, OSHA is considering other options to the field (Memorandum from Leo collect information on episodes of work- for the recordability criteria of Carey to Regional Administrators, related asthma in order to identify and bloodborne pathogens diseases. One February 26, 1993). abate workplace conditions which lead option would require employers to Work-relatedness is presumed in to this illness. OSHA is, however, record all ‘‘exposure incidents’’. An work sites where the Centers for Disease concerned that its proposed policy may ‘‘exposure incident’’, as defined in the Control and Prevention (CDC) has result in the over-recording of Bloodborne Pathogens standard, published reports of epidemics among occupational asthma when employees paragraph (b) of 29 CFR 1910.1030, workers resulting from workplace have chronic, recurrent cases of the means ‘‘a specific eye, mouth, other exposures, i.e., correctional facilities; disease. OSHA asks for input on mucous membrane, non-intact skin, or health care facilities; homeless shelters; possible ways to reduce or eliminate parenteral contact with blood or other long-term care facilities for the elderly; over-recording that will not result in the potentially infectious materials that and drug treatment centers. The loss of significant asthma cases. OSHA results from the performance of an employer can rebut this presumption of also requests information on how to employee’s duties’’. Using this same work relationship by providing differentiate between episodes of definition for the recordability criteria evidence that the employee is known to asthma that are induced by the work may simplify the task of identifying have had a non-work exposure to active environment and those which are not. what events need to be recorded for TB. Examples include situations in (f.) Asbestos-related disorders. OSHA recordkeeping. which (1) an employee is living in a Employers would record any case OSHA believes that the collection of household with a person diagnosed resulting in a diagnosis by a health care information about ‘‘exposure incidents’’ with active TB or (2) the provider of or , is useful to employers in the control of Department lists the employee as a or the recognition of any other bloodborne pathogens hazards. OSHA contact to a case of active TB. parenchymal or pleural abnormality recognizes, however, that this second (e.g. radiograph profusion category of option requires the recording of All other industries would record 1/1 or greater by the ILO classification ‘‘exposures’’ rather than strictly tuberculosis infections or disease only if system, pleural plaques and/or pleural illnesses or injuries. the employee was exposed to thickening). These criteria are based on OSHA is seeking comments on this tuberculosis in the worksite. For information found in Appendix D of the issue. What data is useful to collect? Are example, in industries where asbestos standard (29 CFR Part there other criteria for the recording of tuberculosis is not a recognized hazard 1010.1001) which discusses the signs bloodborne infectious diseases which resulting from work duties, tuberculosis and symptoms of exposure-related should be considered? What experience infections or disease would not disease. do employers have in data collection routinely be recorded. However, if a (g.) Bloodborne pathogens diseases systems for this hazard? worker with infectious tuberculosis (AIDS, HIV infection, Hepatitis B., etc.). In an attempt to address the concerns disease infected their co-workers, the OSHA is proposing to require employers of personal privacy OSHA is co-workers’ infection/disease would be to record exposure incidents which additionally proposing that the recordable. result in disease (e.g., HIV, hepatitis B, exposure incidents described above be OSHA is seeking to learn if there are hepatitis C). Furthermore, OSHA is recorded simply as the type of other industries, aside from those listed proposing that employers be required to bloodborne pathogen exposure incident, in the proposal, where reasonably record lacerations or puncture regardless of the outcome of the anticipated occupational exposure to involving contact with another person’s incident. In other words, employers tuberculosis is occurring. Are there blood or other potentially infectious shall record occupationally acquired other types of worksites where the materials since these are clearly non- bloodborne pathogen disease, such as presumption of work-relatedness should minor ‘‘injuries’’. OSHA believes that Hepatitis B or C, simply as the initial be applied? these criteria meet the Agency’s bloodborne exposure incident and note (I.) In addition to these conditions, mandate to collect information related the type of exposure (e.g. needlestick). Mandatory Appendix B provides to the death, illness, and injury of The seroconversion status and specific guidance for cases resulting in carbon workers. OSHA requests comment on type of bloodborne disease need not be monoxide poisoning, mercury whether it is appropriate to record these entered. This strategy would enable poisoning, benzene poisoning, UV small puncture wounds and lacerations employers to consider data about needle burning of the eye, lacerations, hepatitis if they do not lead to disease. punctures or lacerations (or other A, mesothelioma, , The above criteria limit the number of bloodborne pathogens exposure hypersensitivity pneumonitis, toxic ‘‘exposure incidents’’, as defined in the incidents) while protecting the privacy inhalation injuries, , Bloodborne Pathogens standard, which of individual employee’s medical eye injuries, musculoskeletal disorders, are to be recorded. Incidents which information. (Please refer to the Issues fractures of bones or teeth, and . 4042 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

OSHA asks for input on possible SIC Industry SIC 721 Laundry, Cleaning, and additions, deletions, and revisions to Garment Services, the list, different or additional criteria 63 Insurance carriers. SIC 734 Services to Dwellings and (e.g. diagnostic test results) or any other 64 Insurance agents, brokers and serv- Other Buildings, information that might be used for ice. SIC 735 Miscellaneous Equipment establishing the existence of, and lead to 65 Real estate. Rental and Leasing, 67 Holdings and other investment of- SIC 736 Personnel Supply Services, the accurate, consistent recording of fices. injuries and illnesses. 72 Personal services. SIC 833 Job Training and Vocational Rehabilitation Services, III. Specific Issues for Comment 73 Business services. 78 Motion pictures. SIC 836 Residential Care, OSHA invites comment on the 81 Legal services. SIC 842 Arboreta and Botanical or proposed changes in the regulations, 82 Educational services. Zoological Gardens, and forms and supplemental instructions. 83 Social services. SIC 869 Membership Organizations OSHA has identified the following nine 84 Museums, art galleries and botanical Not Elsewhere Classified. issues. For some issues, the agency is & zoological gardens. The following industries, currently 86 Membership organizations. considering using alternative regulatory required to comply with the injury and text which is included in this ‘‘Specific 87 Engineering, accounting, research, management and related services. illness recordkeeping regulation, will be Issues for Comment’’ section. OSHA 88 Private Households. partially exempt: would like to receive specific comment 89 Miscellaneous services not else- SIC 525 Hardware Stores, on these issues, including any cost and where classified. SIC 752 Automobile Parking, benefit estimates on the various options SIC 764 Reupholstery and Furniture discussed below: Since the partial recordkeeping Repair, Issue 1. Exemptions from OSHA exemption based on SIC codes was SIC 793 Bowling Centers, injury and illness recordkeeping implemented, the injury and illness SIC 801 Offices and Clinics of Doctors requirements. The current regulations rates of the major industry groups have of Medicine, include exemptions from most of the changed. If the same formula were SIC 807 Medical and Dental recordkeeping requirements for small applied to the 1990–92 lost workday Laboratories, and employers (no more than 10 employees) injury rate statistics for SICs 52–89, at SIC 809 Miscellaneous Health and and establishments in specific services the 2-digit level, no additional Allied Services, Not Elsewhere and retail standard industrial industries would be added to the partial Classified. classifications (SICs 52–89). Industries exemption. Two industries would lose traditionally targeted for OSHA If the same analysis, using data at the their partial exemption and be required 3-digit level where available, were enforcement, which are those in SICs 01 to keep records: eating and drinking through 51, are not exempted. (Note the applied to those industries in SICs 01 places (SIC 58), and museums, art through 51 (industries not historically ‘‘exemption’’ is really a partial one galleries and botanical & zoological because ‘‘exempt’’ employers must still exempted from OSHA recordkeeping), gardens (SIC 84). the following industries would have lost comply with the provisions of the Within certain major industry groups current § 1904.8, Reporting of fatality workday case rates less than 75% of the (2-digit SICs), there exist high hazard private sector average: and multiple hospitalization accidents industries and industry groups (4 and 3- SIC 074 Veterinary Services, (proposed § 1904.12) and § 1904.21, digit SICs) (ex.8). To address this SIC 131 Crude Petroleum and Natural Duties of employers (proposed ‘‘nesting’’ problem, OSHA applied the Gas, § 1904.13). Because the exemption is a 1983 evaluation criteria to the 1990 SIC 211 Cigarettes, partial one, affected employers are through 1992 BLS lost workday injury referred to as ‘‘partially exempt’’). SIC 233 Women’s and Misses’ data at the 3-digit SIC level. Where no Outerwear, SIC Exemption. In 1983, the information was available at the 3-digit industries selected for the partial SIC 234 Women’s and Children’s level, OSHA used information at the 2- Undergarments, exemption were chosen from major digit level. industry groups within SICs 52–89, at SIC 272 Periodicals, The proposed text in this NPRM SIC 273 Books, the two 2-digit level, whose average lost modifies the partial exemption for workday case injury rate for 1978–80 SIC 274 Miscellaneous Publishing, industries in Standard Industrial SIC 281 Industrial Inorganic was at or below 75% of the private Classifications (SICs) 52 through 89 to sector average. Industries traditionally Chemicals, reflect this refinement to address the SIC 282 Plastics Materials and targeted for OSHA enforcement, which ‘‘nesting’’ problem. Current partially are those in SICs 01 through 51, are not Synthetics, exempt industries which would have to SIC 283 Drugs, exempted. Application of this formula comply are: resulted in the current list of partially SIC 286 Industrial Organic Chemicals, SIC 553 Auto and Home Supply exempted industries: SIC 291 Petroleum Refining, Stores, SIC 319 Leather Goods, NEC, SIC Industry SIC 555 Boat Dealers, SIC 357 Computer and Office SIC 571 Home Furniture and Equipment, 55 Automotive dealers and gasoline Furnishings Stores, SIC 366 Communications Equipment, service stations. SIC 581 Eating Places, SIC 367 Electronic Components and 56 Apparel and accessory stores. SIC 582 Drinking Places, Accessories, 57 Furniture, home furnishings, and SIC 596 Nonstore Retailers, SIC 376 Guided Missiles, Space equipment stores. SIC 598 Fuel Dealers, 58 Eating and drinking places. Vehicles, Parts, 59 Miscellaneous retail. SIC 651 Real Estate Operators and SIC 381 Search and Navigation 60 Depository institutions. Lessors, Equipment, 61 Nondepository institutions. SIC 655 Land Subdividers and SIC 382 Measuring and Controlling 62 Security and commodity brokers. Developers, Devises, Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4043

SIC 384 Medical Instruments and the manufacturing industry, only 2.4% ‘‘work-related deaths, illnesses and Supplies, of the recordable cases were found in injuries other than minor injuries SIC 385 Ophthalmic Goods, firms with 11 to 19 employees. OSHA requiring only first aid treatment and SIC 386 Photographic Equipment and believes, given these numbers and the which do not involve medical Supplies, transient nature of the construction treatment, loss of consciousness, SIC 387 Watches, Clocks, Watchcases industry, that employers in the restriction of work or motion, or transfer and Parts, construction industry with 11 or more to another job.’’ Section 24(a), which SIC 391 Jewelry, Silverware, and employees should be required to keep deals with statistics, mandates the Plated Ware, OSHA injury and illness records. collection of statistics on ‘‘work injuries SIC 448 Water Transportation of Discussion. The modification of both and illnesses which shall include all Passengers, the small employer and SIC partial disabling, serious or significant injuries SIC 461 Pipelines, Except Natural Gas, exemptions is designed to ensure that and illnesses, whether or not involving SIC 472 Passenger Transportation OSHA’s recordkeeping requirements loss of time from work, other than minor Arrangement, cover those employers with the highest injuries requiring only first aid SIC 481 Telephone Communications, rates of occupational injuries and treatment and which do not involve SIC 483 Radio and Television illnesses. These changes shift the medical treatment, loss of Broadcasting, recordkeeping responsibilities from consciousness, restriction of work or SIC 489 Communications Services, historically low hazard employers to motion, or transfer to another job.’’ NEC, employers experiencing higher rates of The current recordkeeping system, SIC 491 Electric Services, injuries and illnesses. The net effect of and the system that is being proposed, SIC 504 Professional and Commercial these changes in scope will be the consider conditions work-related if the Equipment, recording of more injuries and illnesses, work environment either caused or SIC 506 Electrical Goods, but fewer establishments will be contributed to the conditions or SIC 507 Hardware, Plumbing and covered by the regulation. aggravated a pre-existing condition to Heating Equipment, Employers in the proposed partially the extent that it becomes recordable. SIC 513 Apparel, Piece Goods, and exempt industries and small employers This proposal, however, includes the Notions, and will be required to maintain the OSHA exemption of certain activities to avoid SIC 516 Chemicals and Allied Injury and Illness Log and Summary recording cases which OSHA believes Products. (proposed Form 300) when they are add no useful information to the records notified that they have been selected for for surveillance purposes. Appendix A. OSHA solicits comment on the of this proposal describes these appropriateness of its exemption the BLS Survey of Occupational Injuries and Illnesses for a given year. Partially exemptions. For example, employers procedure, expanding it to SICs 01 will consider a case non work-related if through 51, or alternative approaches exempt employers may also be required to provide reports related to ‘‘the case results solely from normal that would reduce employer paperwork body movements, i.e. walking burden while retaining needed injury occupational safety and health, as required by the proposed § 1904.13. unencumbered, talking, tying a shoe, and illness information. Specifically sneezing, or coughing, provided the OSHA requests comment on whether to Additionally, these employers will be required to comply with reporting activity does not involve a job-related expand the partial exemption to some, motion and the work environment does all, or none of these industries as requirements for Fatality and Multiple Hospitalization Incidents (proposed not contribute to the injury or illness.’’ classified by SIC code. Please include The proposed system requires the any estimates of costs and benefits § 1904.12). OSHA asks for specific input on the recording of all injuries and illnesses associated with these exemptions. with the exclusion of minor injuries and Small Employer Exemption. The following items: (1) Should the list of partially exempt illnesses. OSHA believes that proposed text in this NPRM also industries based on SIC codes remain potentially debilitating illnesses should modifies the partial exemption for small the same, be eliminated, or be be recorded as early in their employers. Employers in the expanded? development as possible, to promote the construction industry with 10 or fewer (2) How often should the SIC early recognition and resolution of employees, and non-construction exemption be updated using current problems that could halt the progression employers with 19 or fewer employees data? of the illnesses. OSHA believes that the will now be exempted from all (3) What are other options for records should capture most injuries requirements except the Reporting of addressing the SIC exemption issues? and illnesses, in order to provide an Fatality and Multiple Hospitalization (4) Should the small employer partial effective surveillance system for Incidents (proposed § 1904.12) and exemption remain the same, be occupational safety and health program Duties of Employers (proposed eliminated, or be expanded? development, but exclude minor § 1904.13). The BLS Annual Survey data (5) What would the cost be (time and injuries and illnesses. show that small employers generally money) for keeping the records to Within the occupational safety and experience much lower patterns of employers currently exempt from the health community, there is a variety of injuries and illnesses than medium and recordkeeping requirements but views concerning the interpretation of larger size firms. However, the BLS proposed to be covered? and these Sections of the Act and the types Annual Survey also shows that small (6) What benefits would accrue from of cases the records should capture. The employers in the construction industry the proposed changes (monetize or discussion revolves around two account for a significant percentage of quantify where feasible)? questions: (1) What constitutes work- recordable injuries and illnesses. In Issue 2. Case recordability criteria— relationship? (2) What is the level of 1991, over 66,000 recordable cases injury/illness severity and work- injury/illness seriousness that should be occurred in construction firms with 11 relationship. Section 8(c)(2) of the Act, used to determine the proper recording to 19 employees. These cases accounted which deals with injury and illness of a case? OSHA has identified the for 13% of the total recordable cases in recordkeeping, mandates the following three alternative views on the construction industry. In contrast, in maintenance of accurate records of both work-relatedness and seriousness 4044 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules that differ from the positions OSHA work factors are the predominant cause lllSkin disorder proposes in this document: of the injury or illness. Those holding lllNon-occupational disease this view believe that OSHA’s current Work-Relatedness 2. How was injury/illness discovered and proposed criteria for work- lllDuring occupational medical This issue is especially relevant when relationship cause companies to over- visit dealing with conditions where the record cases, artificially inflate and lllRoutine physical examination specific event or exposure that caused overstate workplace injuries and lllNon-occupational medical visit the injury or illness cannot be easily illnesses, undermine the credibility of lllOther: llllllll identified, or the condition is the result the system, and have led to general 3. Applicable medical history of both work-related and non work- resistance to the recordkeeping system. lllllllllllllllllll related causes (such as off-the-job Those holding this view believe the lllllllllllllllllll activities, aging, prior medical history or criteria should be modified so that a work aggravation of off-the-job injuries). case would be considered work-related lllllllllllllllllll Common examples include lower back only if work activity(s) or exposure(s) 4. Off-the-job activities which may have pain, hearing loss, and asthma. causes or is the predominate contributor contributed Alternative 1: Exclude Cases With Any to the condition. lllllllllllllllllll Non-Work Linkage Some of those holding this view have lllllllllllllllllll proposed an alternative that would Those holding this view believe that lllllllllllllllllll allow a documented determination by a the work environment should be the health care provider to decide work- 5. Work relationship evaluation sole, obvious cause of the injury or relationship for the following types of a. Injury/illness characteristics illness before it is recorded. They cases: hernias, cardiovascular disorders, lll Degenerative condition due to believe that cases should only be aging or non-occupational disease considered work-related if there is respiratory conditions, hearing loss, lll Congenital condition concrete evidence that the causal event skin disorders or musculoskeletal lll Aggravation of on-the-job or exposure occurred while the disorders such as back pain, tendinitis injury or illness employee was engaged in work and . For this activities. They believe that if there is purpose, a check list has been b. Possible work contribution suggested, as follows. (note: In the lll Workplace event or exposure? any evidence of non work-related lll lll factors, the case should be excluded. absence of evaluation by a health care yes no provider, the case would be considered lll Workplace aggravation? lll Alternative 2: Limit to Predominant work-related if the work environment yes lll no Workplace Linkage caused, contributed to or aggravated the lll Condition consistent with Those holding this view believe that condition in any way.) workplace event or exposure? the work environment should be a major 1. Injury/illness type lll yes lll no contributor to the injury or illness for lllHernia lll Condition would have the injury or illness to be considered lllMusculoskeletal disorder occurred without regard to work-related. They believe that OSHA’s lllback pain workplace duties or exposures? position is too harsh a test, amounting llltendinitis lll yes lll no to zero tolerance for conditions where lllotherllllllll c. Exposure factors for this type of work is a minor contributor and non- lllRespiratory condition injury/illness

Com- Com- On-the-job ments Off-the-job ments lll High ...... lll High ...... lll Medium ...... lll Medium ...... lll Low ...... lll Low ...... lll Not sure ...... lll Not sure ......

6. Work relationship determination her worked with a carcinogenic The worker has an abnormality, but lll Work-related. On-the-job substance, would be considered work- should it be considered an injury or exposure factors more predominant related, even though there is no positive illness? than off-the-job exposure factors. link between the case and a workplace lll Not work-related. Off-the-job exposure. Alternative 1: Days Away From Work or factors more predominant than on- Death the-job exposure factors. Seriousness lll Not sure. Assume work- The concept of seriousness is Proponents of this view believe that relationship. particularly relevant when dealing with employers should record only those conditions where the worker is not cases that result in days away from work Alternative 3: Include Cases With Any obviously impaired, but is experiencing or death. They believe that this will Workplace Linkage some subjective symptom (pain, result in the most meaningful and Those holding this view believe that dizziness, etc.) or has an abnormal accurate information (because fatalities injuries and illnesses should be health test result. For example, a blood and days-away-from-work cases are recorded if the worker ever experienced test may indicate that a worker has a hard to ‘‘cover up’’ and they are a workplace event or exposure that had relatively high level of cadmium in his unquestionably serious). They also any possibility of playing a role in the or her system, but the worker is not believe that this approach will minimize case. For example, a cancer case, where experiencing any symptoms that the burden on employers and focus the worker had at some time in his or adversely affect either work or lifestyle. safety and health efforts on the cases Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4045 with the greatest impact on both They believe that this alternative recorded. A case which involves first employers and workers. provides the employer and the workers aid only (and does not meet any of the at the worksite with the most effective other recording criteria) is not Alternative 2: Days Away From Work, surveillance tool that will lead to the recordable. The intent of this distinction Impairment, or Death most complete injury and illness is to capture information on injuries and Proponents of this view agree with prevention efforts. Proponents of this illnesses which are significant and across-the-board application of the basic view have provided alternative language would provide valuable information for criteria mentioned in Section 8 of the for recording cases where ‘‘signs, safety and health analysis while Act, (days away, medical treatment symptoms, and/or laboratory excluding minor cases which would not beyond first aid, etc.) but believe the abnormalities last longer than 48 hours provide necessary or useful information purpose of proposed Mandatory (either persistently or intermittently)’’ for analysis. Appendix B should be limited to excluding minor injuries (minor injuries The current recordkeeping system capturing ‘‘serious’’ cases which may be are minor scratches, abrasions, defines first aid as any one-time ‘‘missed’’ because they do not meet the and first degree burns).’’ treatment, and any follow-up visit for basic criteria. Such cases would include the purpose of observation, of minor Implications disorders where no lost time occurs, or scratches, cuts, burns, and splinters, and where medical treatment is not The issues of work-relationship and so forth which do not ordinarily require provided at the time the case is case severity have major implications medical care. Medical treatment is diagnosed or discovered because for all of the parties that use the injury defined to include any treatment other medical treatment would not help, but and illness records, including than first aid treatment administered to the case is serious nonetheless. employers, workers and the injured employees. The definition Examples include the current criteria for government. If the criteria are too focuses on the type of treatment given recording hearing loss (25dB), inclusive, they may appear to overstate and not on the person administering the asbestosis, mesothelioma, , the injury and illness experience, treatment (e.g. physician, registered byssinosis and other similarly serious undermine the credibility of the system, health professional, etc.). These work-related diseases. and fail to focus safety and health efforts definitions are further clarified within Potential guiding language for on the most serious workplace hazards. the Recordkeeping Guidelines for recording cases missed by the basic If they are too exclusive, they may Occupational Injuries and Illnesses by criteria would be ‘‘any work-related appear to understate the injury and lists of examples of treatments which condition that results in, or is likely to illness experience, undermine the are considered either medical treatment result in, a physical or mental credibility of the system, and fail to or first aid. These lists are not impairment that substantially limits a reflect hazardous conditions that require comprehensive and confusion exists major life activity.’’ In addition to attention. OSHA believes that the OSHA concerning the classification of unlisted stating such guiding language in, and as proposal in the NPRM is compatible treatments. a basis for a Mandatory Appendix, with the language and intent of the Act, This proposal attempts to clarify the clarifying examples of specific known to and provides the best way to resolve distinction between first aid and be serious conditions such as, but not these issues. OSHA welcomes comment, medical treatment by defining the terms limited to, those mentioned in the ideas, and alternative suggestions from in a way that will make them mutually paragraph above could be listed. the public concerning these issues and exclusive. The proposed regulatory text Those who support this approach the alternatives presented above. defines first aid with a finite list of believe it meets the ‘‘disabling, serious, Specifically, OSHA requests input on treatments. Medical treatment is defined or significant’’ criteria prescribed in A) The level of severity and criteria for as any treatment other than those listed establishing work-relationship and Section 24(a) of the Act and that these in the first aid definition. criteria must be considered carefully, determining which cases are entered ‘‘First aid’’ means the following especially if OSHA intends to collect into the records; B) How ‘‘significant/ treatments for work-related injuries and OSHA Logs and use the data for serious/disabling’’ should be defined to illnesses: result in consistent recording practices inspection targeting and intervention 1. Visit(s) to a health care provider purposes. Supporters of this approach and data; C) How work contribution can be objectively measured for such a limited to observation also believe it will provide the most 2. Diagnostic procedures, including the purpose; D) Does the shown meaningful data to employers for use of prescription medications above meet these objectives? F) Should improving workplace safety and health solely for diagnostic purposes efforts by helping to allocate resources work-relationship be established only 3. Use of nonprescription medications, for preventing injuries and illnesses where work is the predominant causal including antiseptics which are truly serious. factor? G) Should work-relationship be 4. Simple administration of oxygen established if work was something less 5. Administration of tetanus/diphtheria Alternative 3: No Limitations on than the predominant cause? or H) If Seriousness shot(s) or booster(s) work contributed more than 50% to the 6. Cleaning, flushing or soaking wounds Proponents of this view believe that injury or illness? 25%? 10%? J) How on skin surface all work-related injuries and illnesses could any of these percentages be 7. Use of coverings such as should be recorded. They interpret the measured/determined? bandages, gauze pads, etc. Act to require the recording of all work- Issue 3. The definitions of first aid 8. Use of any hot/cold therapy (e.g. related illnesses, no matter how minor and medical treatment. The distinction compresses, soaking, whirlpools or how short lived they may be, and the between first aid and medical treatment non-prescription skin creams/ recording of all non-minor injuries. is a critical component in determining lotions for local relief, etc.) except They believe the recording criteria whether to record a work-related injury for musculoskeletal disorders (See should be expanded to include all signs or illness. One criterion in the proposed Mandatory Appendix B) and symptoms experienced by workers, regulatory text requires any work- 9. Use of any totally non-rigid, non- and perhaps even potentially hazardous related injury or illness involving immobilizing means of support (e.g. exposure incidents and near misses. medical treatment beyond first aid to be elastic bandages) 4046 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

10. Drilling of a nail to relieve pressure criterion will focus on the hazardous to record them until 1986. The 1986 for subungual tasks that lead to serious injuries and Recordkeeping Guidelines provided 11. Use of eye patches illnesses. OSHA believes, however, that some limited specific guidance by 12. Removal of foreign bodies not the second criterion is not easily requiring all back cases to be evaluated embedded in the eye if only defined and could lead to the recording as injuries using the general injury irrigation or removal with a cotton of inconsistent data. This criterion has criteria, and to record carpal tunnel swab is required been narrowed in the proposed text of syndrome as an illness. The 1986 13. Removal of splinters or foreign the regulation to include activities the Guidelines did not provide specific material from areas other than the employee performed or was expected to directions on which criteria to use for eyes by irrigation, tweezers, cotton perform on the day of injury or onset of recording other types of musculoskeletal swabs or other simple means illness. OSHA believes these activities disorders. OSHA asks for comment on the will be well known and understood and Historically, for recording purposes, following issues: use of this criterion will lead to greater disorders caused by repeated or (A) Should any treatments on the consistency in the recording of these cumulative trauma were covered by the proposed first aid list be excluded and more severe work-related injuries and general illness criteria because these should any treatments be added? illnesses. disorders are caused by prolonged (B) Should a list of medical treatments This proposal also eliminates the exposure to various risk factors, rather also be provided? Which treatments? requirement for employers to count the than being caused by a single days of restricted work activity. The instantaneous event. The existing (C) Should simple administration of employer will be required to place a definition of occupational illness (in oxygen be defined to exclude more check in the restricted work column if place since 1971) is very inclusive: severe procedures such as Intermittent the case involved restricted work ‘‘Any work related abnormal condition Positive Pressure Breathing (IPPB)? If so, activity but not days away from work. or disorder (other than an occupational how? OSHA asks for input on whether the injury)’’. (1986 Recordkeeping Issue 4. The definition of restricted proposed language is too limiting or too Guidelines, P 39) Thus, the current work. The Keystone Report stated that broad, on alternative ways to define criteria for recording illnesses requires the recording of restricted work is restricted work activity and/or the usual the employer to record each and every perhaps the least understood and least duties of an employee, along with occupational illness, including MSDs. accepted concept in the recordkeeping suggested ways to improve employers’ Theoretically, all musculoskeletal system. Recording cases involving understanding and acceptance of the disorders, even the less severe cases restricted work activity is important concept of restricted work activity. which do not meet the recording criteria because injured or ill employees are OSHA’s goal is to have employers for injuries, would be recordable as a unable either to perform all of their consistently record cases that involve result of applying the general illness normal duties or perform a full day’s restricted work by providing a concept recording criteria. Despite their work. The concept of restricted work which is widely accepted and easy to recordability, OSHA observed that very activity was included in the Act due to interpret. few, if any, of these disorders were concern that some employers might try OSHA asks for input on the following being recorded on employers’ OSHA to conceal significant injuries and questions: (A) Will the elimination of Logs. As a result, OSHA developed an illnesses by temporarily assigning the restricted work activity day count enforcement policy limiting the injured or ill workers to other with provide an incentive for employers to issuance of citations and penalties for reduced requirements. This concern still temporarily assign injured or ill workers unrecorded MSDs to those cases which exists today. to jobs with little or no productive value involve: The difficulty in determining to avoid recording a case as one • a clinical diagnosis by a health care restricted work lies in the need to involving days away from work? (B) provider; or determine the employee’s ‘‘normal Will the inclusion of question 13 on the • at least one physical finding, (i.e., duties’’. In the past, OSHA has broadly proposed OSHA Form 301, ‘‘If the case an objective symptom such as redness defined the employee’s normal duties to involved days away from work or or swelling); or include any work activity included in restricted work activity, enter the date * a subjective symptom, such as pain the employee’s job description, even if the employee returned to work at full or numbness, coupled with either the activity is performed infrequently. capacity’’, help to reduce such an medical treatment or lost workdays, According to the Keystone Report, this incentive? (i.e., days away from work and/or days definition is problematic because ‘‘(1) Issue 5. The proper recording of of restricted work activity). few in industry understand the scope of musculoskeletal disorders (MSDs). Over In 1990, OSHA published specific this interpretation; (2) many who do the last 10 years, there has been an criteria for the proper recording of understand it disagree with it; and (3) to increased awareness of work-related MSDs in the Ergonomics Program maximize productivity, workers are disorders associated with ergonomic Management Guidelines For increasingly assigned a wider range of hazards, i.e. hazards associated with Meatpacking Plants (Meatpacking tasks, making it increasingly difficult to lifting, repeated motion, and repetitive Guideline). These criteria have been the measure and/or verify the performance strain and stress on the musculoskeletal basis for all of OSHA’s interpretations of these greatly divergent and infrequent systems of workers. OSHA labels these involving the proper recording of duties.’’ (ex. 5, p. 17) injuries and illnesses, which result from musculoskeletal disorders to the upper The Keystone Report recommended ergonomic hazards, ‘‘musculoskeletal extremities (shoulder, arms, wrist and that restricted work activity should be disorders’’ (MSDs). MSDs do not ) since that time. recorded if the employee is 1) unable to include broken bones, chipped teeth, Even though the specific criteria in perform the task he/she was engaged in contusions or sprains/strains resulting the Meatpacking Guidelines defined at the time of injury or onset of illness from falls or being struck. fewer recordable cases than the general or 2) unable to perform any activity that Although MSDs have always been illness criteria, the number of recorded he/she would have performed during recordable, OSHA and BLS had not cases has increased dramatically. While the week. OSHA believes that the first published any specific guidance on how OSHA believes that these types of Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4047 disorders are increasing in number, authorities (Hales & Bertsche, paperwork burden on employers, OSHA believes that the increase in ‘‘Management of Upper Extremity perhaps this equivalency option recorded MSD cases is also the result of Cumulative Trauma Disorders’’, perpetuates this misunderstanding and OSHA providing employers with AAOHN Journal, March, 1992, Vol. 40, should be eliminated. specific guidance on the subject, in No. 3; Nanneman, D., ‘‘Thermal Many companies use the information conjunction with enforcement of the modalities: Heat and cold: Review of from the OSHA records to establish requirements. Compliance with the physiological effects with clinical ‘‘accountability systems’’ for recordkeeping requirements improved applications’’, AAOHN Journal, 1991, management as well as their safety and substantially and the resulting data and Vol. 39, No. 2) recognize hot and cold health professionals. Often these statistics have reflected that treatments as therapeutic modalities in systems are linked to performance improvement. the conservative, early treatment of evaluations of the affected individuals. One purpose of this proposed revision MSDs. Because these treatments may These performance evaluations may be of 29 CFR Part 1904 is to consolidate in cause negative effects if not properly used to help determine bonuses, the regulation various criteria, administered, OSHA is proposing that promotions, or compensation levels. guidelines and interpretations policies two or more hot and cold treatments be Affected employees may be discouraged which are currently found in a number considered medical treatment for MSDs from fully and accurately recording of different documents. Another only when directed by a health care injuries and illnesses in the OSHA purpose is to simplify the recordkeeping professional. records when they may be, or may requirements, in order to make the There is a concern that the proposed perceive to be, personally penalized for system more ‘‘user friendly’’ and to criteria will result in a situation where complying with the OSHA encourage more accurate and consistent workers could be working with recordkeeping requirements. recording of injuries and illnesses. significant pain for an extended period The OSHA recordkeeping proposal Consistent with these purposes, OSHA of time, without their case being entered includes several items intended to is proposing to incorporate the criteria into the records. OSHA has been asked reduce the effects of these potential for recording MSDs found in the to consider an additional recording problems on the accuracy of the records. Meatpacking Guidelines in mandatory criterion for these cases: record when Certification of the accuracy and Appendix B of the proposed regulation, the employee reports symptoms (pain, completeness of the OSHA Log by a and to simplify the system by applying tingling, numbness, etc.) persisting for responsible company official and those criteria equally to cases involving at least 7 calendar days from the date of disclaimers of a relationship between the upper extremities, the back and the onset. OSHA asks for input on this OSHA injury and illness recordkeeping lower extremities. criterion. and implications of fault for insurance The criteria in proposed Mandatory OSHA recognizes that its proposed systems are included in the regulatory Appendix B require employers to record recording policy does not provide a text and on the proposed forms. The new, work-related musculoskeletal mechanism for excluding cases that ‘‘employer use column’’ can be utilized disorders: (1) whenever they are involve short term job transfers for by companies to indicate those cases diagnosed by a health care provider, or minor soreness that commonly occurs to that the firm does not wish to include (2) if the employee has objective newly hired employees or employees on in their internal safety statistics. findings (redness indicative of rehabilitation assignments during a OSHA asks for input on (A) ways to inflammation, deformity, swelling, etc.). ‘‘break in’’ . OSHA asks for input encourage accurate injury and illness When either of these criteria, or when on whether a method for excluding records, (B) how the confusion between any of the general criteria for recording these cases should be developed? If so, OSHA recordkeeping and workers’ illnesses and injuries in § 1904.4(b) (i.e. what method should be used? compensation/insurance requirements death, loss of consciousness, days away Issue 6. The reluctance of some can be minimized, and (C) how the from work, restricted work activity, job employers to enter cases into the adverse effect of accountability systems transfer, or medical treatment beyond records. For a variety of reasons, some on the OSHA records can be reduced. first aid) is met, the case is required to employers have historically shown a Issue 7. Improving employee be recorded on the OSHA Form 300. reluctance to enter injuries and illnesses involvement. The Keystone report stated OSHA’s proposal represents a into the OSHA records. that overall workplace safety and health continuation of the current recording Some employers mistakenly believe would benefit if the information in the policy, and is intended to ensure the that recording a case implies fault on injury and illness records were more early recognition and recording of the part of the employer. Some fail to widely known. The report noted that musculoskeletal disorders so recognize that the requirements of employee involvement and awareness appropriate actions may be taken. OSHA recordkeeping have nothing to do are minimal for three reasons: (1) Lack The current recording of these cases is with workers’ compensation insurance of knowledge that access is permitted, also dependent on the definitions of or any other system outside of the (2) fear of employer reprisal, and (3) first aid, medical treatment and OSHA requirements. While many OSHA employee apathy. The Keystone report restricted work. Because OSHA is recordable injuries and illnesses may be concluded that employee notification proposing to change those definitions, compensable under an insurance could improve employee involvement the recording of musculoskeletal program, others are not. Furthermore, in recordkeeping and enhance the disorders will be affected. OSHA many employers use a workers’ quality of the data, increase employees’ recognizes that hot and cold treatments compensation or insurance form in lieu knowledge of hazards, promote better for most injury and illness conditions of the OSHA supplementary record. cooperation between employers and should be considered first aid However, some employers who use employees in reducing hazards, and treatments, as indicated in the proposed these forms in lieu of the OSHA contribute to safer, more healthful definition of first aid. However, NIOSH supplementary record mistakenly workplaces. (NIOSH, Cumulative trauma disorders: believe that completing the forms for OSHA asks for input on (A) whether A manual for musculoskeletal diseases OSHA recordkeeping purposes employees should be notified that their of the upper limbs, Taylor and Francis, automatically makes the case individual injuries and illnesses have 1988, p. 125) and other recognized compensable. While reducing the been entered into the records, (B) the 4048 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules possible mechanisms employers could workplace hazards through additional including any ideas on how to quantify use to meet such a requirement and the or different perspectives. those costs and benefits. degree of flexibility employers should OSHA is considering alternatives to Issue 9. The development of computer be given, (C) any other ideas on methods the existing and proposed regulatory software to assist employers in the task for improving employee involvement in text to address the conflict between the of recordkeeping. To make injury and the injury and illness recordkeeping privacy interests of the individual and illness recordkeeping easier for system, and (D) cost (including burden) the interest in total access to health and employers, OSHA is considering the and benefit information on each safety information concerning one’s development of recordkeeping computer alternative. own workplace. One alternative to the software. Once developed, the program Issue 8. Access to the OSHA forms regulatory text would be to require the could have the following minimum and the privacy of injured or ill removal of personal identifiers for only features: employees. The current regulation and certain types of cases that might have (a) employ a decision-making logic for the proposed regulatory text both higher privacy concerns than others. determining if an injury or illness is require that employees, former The alternative described above raises recordable, and if so the proper employees, and their designated additional questions to which the public classification, and include questions to representatives have access to the entire is invited to respond. What other pieces elicit the necessary information to OSHA injury and illness log, which of information, if any, on the currently complete and generate the OSHA includes personal identifiers. proposed forms (proposed Forms 300 required records; Furthermore, the current regulation and 301—see section IV of this (b) automatic form(s) generation; does not provide employees or their preamble) ought to be considered (c) the ability to assist the employer designated representatives access to the personal identifiers and included on the in evaluating the entered data through OSHA injury and illness supplementary side of the form which is not disclosed several preset analytical tools (e.g. forms while the proposed regulatory once it is folded over? If only certain tables, charts, etc.); (d) contain a tutorial section to assist text provides employees or types of cases should be shielded, employers in training employees in representatives designated by which types of cases ought to be proper recordkeeping procedures; employees access to all OSHA injury considered ‘‘confidential’’ and subject to (e) be in the public domain and/or be and illness supplementary records having the personal identifiers (proposed OSHA Form 301, Incident available at cost to the public. removed? Should a coding system be OSHA is requesting comments on all Record) of the establishment. used for these cases to enable some OSHA’s historical practice of allowing facets of this approach toward people, but not others, to have access to employee access to all of the development of software. In addition, the entry information, and if so, what information on the log permits OSHA would like to know what employees and their designated type of system? Who should have access percentage of employers have representatives to be totally informed to the personal identifier information? computers to assist them in their about the employer’s recordkeeping Should the right to access an business? What percentage of employers practices, and the occupational injuries individual’s Incident Record be limited currently use computers for tracking and illnesses recorded in the workplace. to that individual? employee-related information (payroll, However, this total accessibility may It is OSHA’s intention to make the timekeeping, etc.)? Should the infringe on an individual employee’s forms readily accessible to employees distribution be through the Government, privacy interest. At the same time, the and employee representatives who can public domain shareware distribution, need to access individuals’ Incident use the information to affect safety and or other channels? Should OSHA Records to adequately evaluate the health conditions at the workplace. develop the software or only provide safety and health environment of the OSHA does not intend to provide access specifications of its requirements? establishment has been expressed. to the general public. OSHA asks for These two interests—the privacy input on possible methodologies for IV. Proposed OSHA Forms interests of the individual employee providing easy access to workers while In conjunction with this proposed versus the interest in access to health restricting access to the general public. rulemaking, the OSHA recordkeeping and safety information concerning one’s OSHA also asks for input on the forms are also being modified. OSHA is own workplace—are potentially at odds possible benefits and costs of making continuing to try to reduce the with one another. For injury and illness the information accessible, and any employer’s paperwork burden through recordkeeping purposes, OSHA has negative results that could occur from these modifications and reducing the taken the position that an employee’s such access. Specifically, for employers number of duplicate questions on the interest in access to health and safety who use State workers compensation, forms. At this point, some duplicate information on the OSHA forms insurance, or other forms as equivalents questions remain and are needed for concerning one’s own workplace carries to the OSHA form, are there data each form to ‘‘stand alone’’. OSHA greater weight than an individual’s right elements contained on those forms believes if the duplication were reduced to privacy. More complete access to the which could not be released to further, employers would be required to detailed injury and illness records has employees or their designated refer frequently to both forms at the the potential for increasing employee representatives? If so, what are those same time, which would add additional involvement in workplace safety and data elements? How would this affect burden. OSHA requests comment on health programs and therefore has the the employer’s ability to use equivalent any of these modifications, the potential for improving working forms? remaining duplications, or any other conditions. Analysis of injury and OSHA invites the public to suggest related issues to the proposed forms. illness data provides a wealth of other options or alternative regulatory The forms are being included in this information for injury and illness language which would address this preamble for informational purposes. prevention programs. Analyses by issue of confidentiality and access to The OSHA 200 Log will be replaced workers, in addition to analyses by the information. Please include any with the OSHA 300 Log which includes employer, lead to the potential of information on costs and benefits that reformatted columns and an additional developing methods to diminish will result from these alternatives, column for the employer’s use. The Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4049 proposed elimination of the requirement not necessarily eligible for Workers’ information about the affected worker, that employers distinguish between Compensation or other insurance. the injury or illness, workplace factors injuries and illnesses in order to record Listing a case below does not associated with the accident, and a brief a case would eliminate the need for necessarily mean that the employer or description of how the injury or illness separate groups of columns for injuries worker was at fault or that an OSHA occurred. and illnesses on the Log. The proposed standard was violated’’. The intent of Currently, many employers use their elimination of the requirement to count this disclaimer is to dispel the mistaken insurance or State workers’ days of restricted work activity also belief that recording a case on the Log compensation forms in place of the eliminates the need for the restricted affects workers’ compensation or supplementary record. This reduces the day count columns found on the OSHA establishes a finding of fault. burden on employers by allowing them 200 Log. The result is a simplified form Some stakeholders have expressed the to fill out a single form for multiple that fits on standard size paper which need for a column containing purposes. Several States have notified can easily be copied and kept on a information on cases involving OSHA that they intend to modify their personal computer. This also results in musculoskeletal disorders such as low forms to qualify as equivalents to the space to create an employer use column back pain, tendinitis, and carpal tunnel OSHA form. OSHA anticipates that which can be utilized by employers to syndrome. OSHA solicits comment on many other States will also modify their tailor the Log to meet the needs of their the inclusion of an MSD column on the forms to qualify as equivalents to the particular safety and health program. form. OSHA form so employers may continue For example, this column could be used The Supplementary Record of to have the benefit of interchangeable by employers to enter causation, or Occupational Injuries and Illnesses forms. OSHA is currently working with injury and illness codes, or other (OSHA No.101) will be replaced with the International Association of information useful to the company. This the OSHA Injury and Illness Incident Industrial Accident Boards and employer use column may provide Record (OSHA Form 301) in order to Commissions (IAIABC) to standardize employers with additional flexibility, collect more useful information. the recording forms for occupational reducing their need to maintain Additional questions will be added to injuries and illnesses. multiple sets of records for various gather data on the events leading up to OSHA also requests comment on the purposes. the injury or illness; on the equipment, concept of a single form which would Cases that end in permanent work material, or substance involved; and on meet all of the informational needs of restrictions, job transfer, or termination the activity taking place when the injury the recordkeeping system. What items of employment will be noted by placing or illness occurred. An employer use would be included? What format would an asterisk next to the employee’s name. section will be added to provide the be used? How would the use of a single This information could provide employer with space to record any form, as opposed to two forms, affect the employers, employees, inspectors and additional information that is desired. A employers ability to use State Workers— researchers with another measure of statement will be included on the form Compensation forms as equivalents to severity for injuries and illnesses. A notifying employees, former employees, the OSHA form? statement will be included on the and their designated representatives of Information concerning the summary portion informing employees, their right to access all OSHA injury and establishment name and address and the former employees, and their designated illness records of the establishment. employee’s social security number, representatives of their right to access While the new OSHA 300 Log regular job title, and the department in the entire Log. presents information on injuries and which the injured person is regularly A disclaimer will be included on the illnesses in a condensed format, an employed will no longer be requested. Log which states ‘‘Cases listed below are Incident Record provides more detailed BILLING CODE 4510±26±P 4050 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4051 4052 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4053

BILLING CODE 4510±26±C 4054 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

V. Legal Authority and Human Services, may prescribe by conduct research ‘‘to explore new The primary purpose of the regulation as necessary or appropriate problems, including those created by Occupational Safety and Health Act (the for the enforcement of this Act or for new technology in occupational safety Act), 29 U.S.C. 651 et seq., is to assure developing information regarding the and health, which may require so far as possible, safe and healthful causes and prevention of occupational ameliorative action beyond that which working conditions for every American accidents and illnesses.’’ Section 8(c)(2) is otherwise provided for in the worker over the period of his or her further provides that the ‘‘Secretary, in operating provisions of this Act.’’ cooperation with the Secretary of Health Section 20 empowers the Secretary of working lifetime. The Secretary’s and Human Services, shall prescribe Labor to disseminate information responsibilities under the Act are regulations requiring employers to obtained by the Secretaries of Labor and defined largely by its enumerated maintain accurate records of, and to HHS under this section to employers, purposes, which include: make periodic reports on, work-related employees, and organizations thereof. Encouraging employers and deaths, injuries and illnesses other than [29 U.S.C. 669] employees in their efforts to reduce the minor injuries requiring only first aid Section 24 requires the Secretary to number of occupational safety and treatment and which do not involve ‘‘develop and maintain an effective health hazards at their places of medical treatment, loss of program of collection, compilation, and employment, and to stimulate consciousness, restriction of work or analysis of occupational safety and employers and employees to institute motion, or transfer to another job.’’ health statistics * * * The Secretary new and to perfect existing programs for Section 8(c)(3) empowers the Secretary shall compile accurate statistics on work providing safe and healthful working to require employers to make, keep, and injuries and illnesses which shall conditions. [29 U.S.C. 651(b)(1)] preserve records regarding activities include all disabling, serious, or Building upon advances already made related to the Act. In particular, section significant injuries and illnesses, through employer and employee 8(c)(3) gives the Secretary authority to whether or not involving loss of time initiative for providing safe and require employers to ‘‘maintain accurate from work, other than minor injuries healthful working conditions. [29 U.S.C. records of employee exposures to requiring only first aid treatment and 651(b)(4)] potentially toxic materials or harmful which do not involve medical Providing for research in the field of physical agents which are required to be treatment, loss of consciousness, occupational safety and health * ** monitored or measured under Section restriction of work or motion, or transfer developing innovative methods, 6.’’ [29 U.S.C. 657(c)] to another job.’’ Section 24 also techniques, and approaches for dealing Section 8(g)(1) authorizes the empowers the Secretary to ‘‘promote, with occupational safety and health Secretary ‘‘to compile, analyze, and encourage, or directly engage in problems. [29 U.S.C. 651(b)(5)] publish, either in summary or detailed programs of studies, information and Exploring ways to discover latent form, all reports or information obtained communication concerning diseases, establishing causal under this section.’’ Section 8(g)(2) of occupational safety and health connections between diseases and work the Act empowers the Secretary ‘‘to statistics.’’ Finally, Section 24 requires in environmental conditions, and prescribe such rules and regulations as employers to ‘‘file such reports with the conducting other research relating to he may deem necessary to carry out his Secretary as he shall prescribe by health problems * * * [29 U.S.C. responsibilities under the Act.’’ [29 regulation, as necessary to carry out his 651(b)6)] U.S.C. 657(g)] functions under this chapter.’’ [29 Providing medical criteria which will Section 9 empowers the Secretary to U.S.C. 673] assure insofar as practicable that no issue a citation to an employer who the employee will suffer diminished health, Secretary believes ‘‘has violated a VI. State Plans functional capacity, or life expectancy requirement * * * of any regulations The 25 States and territories with as a result of his [or her] work prescribed pursuant to this Act’’ and their own OSHA approved occupational experience. [29 U.S.C. 651(b)(7)] may, pursuant to Section 10, assess a safety and health plans must adopt a Providing for appropriate reporting penalty under Section 17. [29 U.S.C. 658 comparable rule. These 25 States are: procedures with respect to occupational and 659] Alaska, Arizona, California, Hawaii, safety and health which will help Section 20 empowers the Secretary of Indiana, Iowa, Kentucky, Maryland, achieve the objectives of this Act and Labor and the Secretary of Health and Michigan, Minnesota, Nevada, New accurately describe the nature of the Human Services to consult on research Mexico, North Carolina, Oregon, Puerto occupational safety and health and related activities, ‘‘including Rico, South Carolina, Tennessee, Utah, problems. [29 U.S.C. 651(b)(12)] studies of psychological factors Vermont, Virginia, Virgin Islands, Encouraging joint labor-management involved, and relating to innovative Washington, and Wyoming; and efforts to reduce injuries and disease methods, techniques, and approaches Connecticut and New York (for State arising out of employment. [29 U.S.C. for dealing with occupational safety and and local Government employees only). 651(b)(13)] health problems.’’ The Secretary of The current 29 CFR 1952.4 requires that Several sections of the Act provide HHS, on the basis of such research, such States with approved State plans legal authority for promulgation and ‘‘* * * and other information available under section 18 of the OSH Act (29 enforcement of this regulation. A to him, shall develop criteria dealing U.S.C. 667), must adopt recordkeeping summary of relevant sections is with toxic materials and harmful and reporting regulations which are provided below: physical agents and substances which ‘‘substantially identical’’ to those set Section 8(c)(1) of the Act, requires will describe exposure levels that are forth in 29 CFR Part 1904. Therefore, the each employer to ‘‘make, keep and safe for various periods of employment, definitions used must be identical to preserve, and make available to the including but not limited to the ensure the uniformity of collected Secretary [of Labor] or the Secretary of exposure levels at which no employee information. In addition, § 1952.4 Health and Human Services, such will suffer impaired health or functional provides that employer variances or records regarding his activities relating capacities or diminished life expectancy exceptions to State recordkeeping or to this Act as the Secretary, in as a result of his work experience.’’ reporting requirements in a State plan cooperation with the Secretary of Health Also, the Secretary of HHS shall State must be approved by the Bureau Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4055 of Labor Statistics. Similarly, a State is Assistant Secretary has determined that Department of Labor auditorium at 200 permitted to require supplemental this proposed rule will not have a Constitution Avenue, N.W. beginning at reporting or recordkeeping data, but that significant impact on the external 8:30 AM on March 26, 1996 and State must obtain approval from the environment. extending through March 28th, if Bureau of Labor Statistics to insure that X. Federalism necessary. The purpose of the meeting the additional data will not interfere is to give the public an opportunity to with ‘‘the primary uniform reporting This proposed rule has been reviewed provide information to OSHA objectives.’’ The proposed revision of 29 in accordance with Executive Order concerning the proposed rule. Notices of CFR 1952.4 keeps the same substantive 12612 (52 FR 41685), regarding intention to appear at the public requirements for the State Plan States, Federalism. Because this rulemaking meeting should identify person and action involves a ‘‘regulation’’ issued but reflects the organizational shift of organization, the amount of time under section 8 of the OSH Act, and not some responsibilities of the Bureau of requested for presenting views, the a ‘‘standard’’ issued under section 6 of Labor Statistics to OSHA. See also the subject matter, and a brief summary of memorandum of understanding between the Act, the rule does not preempt State law, see 29 U.S.C. § 667 (a). The effect the intended presentation. The amount OSHA and BLS effective January 1, 1991 of time available for each presenter may (ex. 6). of the proposed rule on States is discussed above in Section VI, State be limited by OSHA, if necessary. VII. Regulatory Impact Assessment Plans. Notices to appear must be postmarked on or before March 5, 1996. Notice of The average establishment affected by XI. Public Participation intention to appear at the meeting is to the proposed changes to the Interested persons are requested to be sent to Mr. Tom Hall, OSHA Division recordkeeping requirements would submit written comments on the issues of Consumer Affairs, Docket No. R–02, incur a net reduction in recordkeeping raised in this proposal. Responses to the Room N–3647, U.S. Department of costs. Thus the proposed rule will not questions raised in the proposal are also Labor, 200 Constitution Avenue, N.W., impose adverse economic impacts on encouraged. Whenever possible, Washington, D.C., 20210. firms in the regulated community. The solutions should be included where the proposed exemption from the regulation comments are of a critical nature. XII. Paperwork Reduction Act of 1995 of all non-construction establishments Written submissions must clearly The proposed regulation contains with fewer than 20 employees will identify the provisions of the proposal mean that most small entities will information collections which are which are addressed and the position subject to review by the Office of experience an even larger cost savings. taken on each issue. Management and Budget (OMB) under Nor is any significant international These comments must be postmarked effect expected. by May 2, 1996. Comments are to be the Paperwork Reduction Act of 1995. submitted in writing in quadruplicate, The title, summary, description of need, VIII. Regulatory Flexibility respondent description and estimated or 1 original (hard copy) and 1 disk(5 1⁄4 Certification reporting and recordkeeping burden are or 3 1⁄2) in WP 5.0, 5.1, 5.2, 6.0 or ascii. Pursuant to the Regulatory Flexibility Note: Any information not contained on shown below. Included in the estimate Act (5 U.S.C. 601 et seq.), the Assistant disk; e.g., studies, articles, etc. must be of burden is the time and effort for Secretary certifies that the proposed rule submitted in quadruplicate. Comments reviewing instructions, searching will not have a significant adverse of 10 pages or less may be transmitted existing data sources, gathering and impact on a substantial number of small by facsimile to (202) 219–5046 provided maintaining the data needed, entities. The proposed rule exempts the original and 4 copies of the completing and reviewing the collection construction employers with less than comment are sent to the Docket Officer of information, and financial resources eleven employees and non-construction thereafter. All comments shall be expended for developing, acquiring, employers with less than twenty submitted to: Docket Officer, Docket No. installing, and utilizing technology and employees from most of the R–02, Occupational Safety and Health systems to meet the information requirements, and would not have a Administration, Room N–2625, U.S. collection requirements. differential impact on small businesses. Department of Labor, 200 Constitution Title: Recording and Reporting IX. Environmental Impact Assessment Avenue, NW., Washington, DC 20210, Occupational Injuries and Illnesses. telephone (202) 219–7894. In accordance with the requirements All written comments received within Summary: OSHA is revising 29 CFR of the National Environmental Policy the specified comment period will be 1904 and the associated Forms (OSHA Act (NEPA) (42 U.S.C. 4321 et seq.), made a part of the record and will be No. 200 and OSHA No. 101), and in Council on Environmental Quality available for inspection and copying at addition to providing numerous NEPA regulations (40 CFR Part 1500 et the above Docket Office address. clarifications and minor modifications, seq.), and the Department of Labor’s A public meeting will be held in this revision makes several major NEPA regulations (29 CFR Part 11), the Washington, D.C. in the U.S. changes as follows:

Concept Change/requirement

Exemptions ...... Expand the Small Employer exemption and modify the Low Hazard Industry (SIC) exemption. Injury and Illness Records for construction sub- Require site controlling employers in the construction industry to maintain additional records contractors. on workers other then their own employees. Computerization ...... Allow employers to maintain their OSHA injury and illness records on computer file without corresponding hard copies. Injury vs Illness ...... Eliminate the employer responsibility to distinguish between injuries and illnesses. Recordable condition ...... Redefine the criteria outlining what is a recordable occupational injury or illness. Forms ...... The forms will be requesting modified information and will be renumbered as the OSHA Form 300 (OSHA Injury and Illness Log and Summary) and the OSHA Form 301 (OSHA Injury and Illness Incident Record). 4056 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

Description of need: The OSHA Form the Supreme Court that allow OSHA to the accuracy, completeness and 300, Log and Summary; the OSHA Form obtain search warrants to conduct safety consistency of these records, while 301, Incident Record; and the and health inspections. Others using the reducing the paperwork burden to the recordkeeping regulations will provide data include State and local government regulated community. employers with the means and specific agencies, academia, employers, trade Respondent description: instructions needed to maintain records associations, labor, and the general Approximately 620,000 private sector of work-related injuries and illnesses. public. employer establishments will be Accurate records are necessary for the Efforts to the fulfill the Congressional required to maintain the OSHA Injury optimal prioritization of OSHA’s scarce mandate that the Federal government and Illness Log and Summary and resources. For example, inspection protect employees from safety and Incident Records, though a small priorities are largely based on estimates health dangers on the job would be number of them will not have a of occupational injury and illness data severely hampered by incomplete, recordable case in any given year and collected from employers. The data also inconsistent, and inaccurate data. The will only have to post the summary part play an important part in the revision of the recordkeeping of the OSHA Form 300. administrative procedures mandated by requirements is an attempt to improve Estimated Burden:

EMPLOYERS' BURDEN FOR THE PROPOSED REVISED REQUIREMENTS

Total bur- Actions Number of cases Unit hours per case den hours

Complete OSHA 301 (Includes research of instructions and case de- 508,895 Forms ...... 28 (17 min/60 min) ... 142,490 tails to complete the form). Complete OSHA 300 (Includes research of instructions and case de- 5,088,948 Line entries ...... 166 (10 min/60 min) . 844,765 tails to complete the form). Injury and illness records for construction subcontract workers ...... 74,822 Line entries ...... 166 (10 min/60 min) . 12,420 Fixed burden (Set-up, Summary, and Posting of OSHA 300) ...... 620,879 Establishments ...... 30 (18 min/60 min) ... 186,264 Learning SystemÐTurnover ...... 124,176 Establishments ...... 42 (25 min/60 min) ... 52,153 Disclosure burden * ...... 444,222 employee requests ...... 016 (1 min/60 min) ... 7,107 40,000 Inspections ...... 033 (2 min/60 min) ... 1,320

Total Annual Burden Hours ...... 1,246,519

Learning New System Implementation year only ...... 458,518 Establishments ...... 25 (15 min/60 min) ... 114,629 162,361 Establishments ...... 42 (25 min/60 min) ... 68,192

Total Burden Hours for Implementation Year Only ...... 1,429,340 *Based on estimates of OSHA compliance inspections conducted during 1993.

This is an annual decrease in burden information, including the validity of and no later than within 60 days of of 246,191 hours from the estimate of the methodology and assumptions used; publication. the current injury and illness (3) ways to enhance the quality, utility, List of Subjects recordkeeping requirements, after a and clarity of the information to be smaller decrease of 63,370 hours in the collected; and (4) how to minimize the 29 CFR Part 1904 initial year of implementation due to burden of the collection of information, Recording and reporting of time required to learn the new system. including through the use of appropriate occupational injuries and illnesses, The decrease in hours is primarily due automated, electronic, mechanical or statistical surveys of occupational to the simplification of definitions and other technological collection injuries and illnesses, occupational the reduction of information required on techniques or other forms of information safety and health, State plans. the OSHA Log and supplementary technology, e.g. permitting electronic 29 CFR Part 1952 forms. submission of responses. In addition, The agency has submitted a copy of OSHA requests comment on the nature Recording and reporting of the proposed rule to OMB in accordance and extent of any cost burdens, (i.e., occupational injuries and illnesses, with 44 U.S.C. § 3507(d) of the monetary costs) that employers would variances to State recording and Paperwork Reduction Act for its review incur due to changes in paperwork reporting requirements, injury and of these information collections. requirements that would be necessitated illness statistics, State plans. Interested persons are invited to send by this proposal. Comments should be XIII. Authority comments regarding this burden sent to OSHA Office of Statistics, 200 estimate or any other aspect of this Constitution Avenue, N.W., This document was prepared under the direction of Joseph A. Dear, collection of information, including (1) Washington, DC 20210 and to the Office an evaluation of whether the proposed Assistant Secretary of Labor for of Information and Regulatory Affairs, collection of information ensures that Occupational Safety and Health, U.S. OMB, Room 10235, New Executive the collection of information is Department of Labor, 200 Constitution Office Building, Washington, DC 20503, necessary for the proper performance of Avenue, NW., Washington, DC 20210. the functions of the agency, including Attn. Desk Officer for OSHA. Comments Accordingly, pursuant to sections whether the information will have on the issues covered by the Paperwork 8(c), 8(g), 20 and 24 of the Occupational practical utility; (2) an evaluation of the Reduction Act are most useful to OMB Safety and Health Act of 1970 (29 U.S.C. accuracy of the agency’s estimate of if received within 30 days of publication 657, 673), Secretary of Labor’s Order No. burden of the proposed collection of of the Notice of Proposed Rulemaking, 1–90 (55 FR 9033), and 5 U.S.C. 553, it Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4057 is proposed to revise 29 CFR Part 1904 fatalities. The records: assist employers Log and Summary and make reports and to amend part 1952 as set forth and employees in their efforts to under § 1904.13 of this Part. below. discover, evaluate and address (2) Additionally, employers in Signed in Washington, DC., this 26 day of workplace hazards; assist occupational specific industries listed in columns A January, 1996. safety and health officials in carrying and B on the following table are Joseph A. Dear, out enforcement and consultation required to comply with other Assistant Secretary of Labor. programs; aid in the development and regulations in this Part 1904, except as evaluation of safety and health provided in paragraph (b) of this PART 1904Ð[AMENDED] standards; are used to develop section. information and conduct research (b) Exemptions. Exemptions from 1. 29 CFR Part 1904 would be revised regarding the causes and prevention of coverage are based upon size and the to read as follows: occupational injuries and illnesses; and Standard Industrial Classification (SIC) accurately describe the nature of of the employer: PART 1904ÐRECORDING AND occupational safety and health problems (1) Size. (i) Construction employers REPORTING OCCUPATIONAL for the Nation, State or establishment. with 10 or fewer employees for the INJURIES AND ILLNESSES (b) The records required in this Part entire previous calendar year are Sec. provide descriptive information exempt from the regulations of this Part 1904.1 Purpose. concerning the incidence of 1904, except as noted in paragraph (a)(1) 1904.2 Coverage and exemptions. occupational injuries and illnesses, of this section. See column D of the 1904.3 Definitions. regardless of fault or preventability. Coverage and Exemption Table in 1904.4 OSHA Injury and Illness Log and Recording an injury or illness does not paragraph (b)(2) of this section. Summary (OSHA Form 300 or necessarily mean that the employer or (ii) Employers in industries other than Equivalent). employee was at fault, that an OSHA construction with 19 or fewer 1904.5 OSHA Injury and Illness Incident standard was violated, or that the Record (OSHA Form 301 or Equivalent). employees for the entire previous 1904.6 Preparation, certification and employee is eligible for workers’ calendar year are exempt from the posting of the year-end summary. compensation or other insurance regulations of this Part 1904, except as 1904.7 Location of records. benefits. Recordable workplace injuries noted in paragraph (a)(1) of this section. 1904.8 Period covered. and illnesses result from a variety of See column D of the Coverage and 1904.9 Retention and updating of workplace events or exposures, Exemption Table in paragraph (b)(2) of occupational injury and illness records. including but not limited to: accidents, this section. 1904.10 Change of ownership. exposure to toxic materials or harmful (2) Standard Industrial Classification 1904.11 Access to records. physical agents, intentional acts of (SIC) code. Within the covered 1904.12 Reporting of fatality or multiple violence, or naturally occurring events hospitalization incidents. industries (column B), certain specific 1904.13 Reports by employers. such as a tornado or earthquake. industries (at the 3-digit SIC level) are 1904.14 Recordkeeping under approved (c) The regulations in this Part were exempt from the regulations of this Part State plans. promulgated in consultation with the 1904, except as noted in paragraph (a)(1) 1904.15 Petitions for recordkeeping Secretary of Health and Human of this section. See column C for the list exceptions. Services. of exempt SICs. 1904.16 Falsification of, or failure to keep records or provide reports. § 1904.2 Coverage and exemptions. Note to paragraph (b)(2): Standard 1904.17 Subcontractor records for major Coverage and exemptions are Industrial Classification (SIC) shall be construction projects. determined using the Standard Industrial summarized below and specified in the Classification Manual, Executive Office of the Appendix A to Part 1904—Work-Relatedness. following table. See table to determine Appendix B to Part 1904—Recording of President, Office of Management and Budget. coverage and exemptions. All size thresholds or exemptions are based Specific Conditions. (a) Coverage. (1) All employers Appendix C to Part 1904—Decision Tree for on the number of employees of the entire Recording Occupational Injuries and covered by the Act, regardless of size or firm or corporation, not the number of Illnesses. Standard Industrial Classification (SIC), employees in an individual establishment. Authority: 29 U.S.C. 657, 658, 660, 666, are required to: Coverage and Exemption Table 669, 673, Secretary of Labor’s Order No. 1– (i) Comply with the reporting requirements of § 1904.12 of this Part, Note 1 to Coverage and Exemption Table: 90 (55 FR 9033), and 5 U.S.C. 553. All employers covered by the OSH Act, concerning fatalities or multiple § 1904.1 Purpose. regardless of size or SIC code are required to hospitalizations; and comply with §§ 1904.12 and 1904.13. The (a) The purpose of this Part is to (ii) Upon being notified in writing by following table refers to coverage and require employers to record and report an authorized government agency, exemptions to the other requirements of Part work-related injuries, illnesses and maintain an OSHA Injury and Illness 1904.

Covered employers Exemptions to employers listed in column B (A) Industry divi- sion (B) Specific industry (C) By SIC (D) By size

Construction ...... All Industries (SIC 15±17) ...... 10 or fewer employees for the entire previous calendar year. Mining ...... All Industries not covered by MSHA ...... 19 or fewer employees for the entire previous calendar year. Agriculture ...... All Industries (SIC 01±09) Manufacturing ...... All Industries (SIC 20±39) Transportation & All Industries (SIC 40±49) Utilities. Wholesale ...... All Industries (SIC 50±51) 4058 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

Covered employers Exemptions to employers listed in column B (A) Industry divi- sion (B) Specific industry (C) By SIC (D) By size

Retail ...... SIC 52 Building Materials, Hardware Garden Sup- SIC 525 Hardware Stores. ply and Mobile Home Dealers,. SIC 53 General Merchandise Stores, SIC 54 Food Stores, SIC 553 Auto and Home Supply Stores, SIC 555 Boat Dealers, SIC 571 Home Furniture and Furnishings Stores, SIC 58 Eating and Drinking Places, SIC 596 Nonstore Retailers, SIC 598 Fuel Dealers. Finance, Insurance SIC 651 Real Estate Operators and Lessors and & Real Estate. SIC 655 Land Subdividers and Developers. Services ...... SIC 70 Hotels, Rooming Houses, Camps and SIC 752 Automobile Parking; Other Lodging Places;. SIC 721 Laundry, Cleaning, and Garment Serv- SIC 764 Reupholstery and Fur- ices;. niture Repair; SIC 734 Services to Dwellings and Other Build- SIC 793 Bowling Centers; ings;. SIC 735 Miscellaneous Equipment Rental and SIC 801 Offices and Clinics of Leasing;. Doctors of Medicine; SIC 736 Personnel Supply Services; ...... SIC 807 Medical and Dental Lab- oratories; and SIC 75 Automotive Repair, Services, and Parking; SIC 809 Miscellaneous Health and Allied Services, Not Else- where Classified. SIC 76 Miscellaneous Repair Services; SIC 79 Amusement and Recreation Services; SIC 80 Health Services; SIC 833 Job Training and Vocational Rehabilita- tion Services; SIC 836 Residential Care; SIC 842 Arboreta and Botanical or Zoological Gar- dens; and SIC 869 Membership Organizations Not Elsewhere Classified. Note 2 to Coverage and Exemption Table: Some States with their own occupational safety and health programs do not recognize the Federal recordkeeping exemptions. Contact your nearest OSHA office or State agency to find out if State requirements differ. Note 3 to Coverage and Exemption Table: SICs are from the Standard Industrial Classification Manual, 1987: U.S. Office of Management and Budget. Contact your nearest OSHA office or State agency for help in determining your SIC. Note 4 to Coverage and Exemption Table: The size exemption is based on the employment of the entire firm, not of an individual establish- ment. Employees include part-time workers and corporate officers. Note 5 to Coverage and Exemption Table: Employers normally exempt from the recordkeeping requirements must still comply with the follow- ing: (1) Report any occupational fatality or event resulting in the hospitalization of 3 or more employees as required by Section 1904.12; and (2) Maintain an OSHA Injury and Illness log and Summary and submit reports if directed in writing to do so by an authorized government agen- cy as required by Section 1904.13. Note 6 to Coverage and Exemption Table: Example of how to read the Coverage and Exemption Table: Employers in SIC 52 (Building Mate- rials, Hardware Garden Supply and Mobile Home Dealers) are covered by the regulation except for employers with 19 or fewer employees in the previous calendar year and Hardware Stores (SIC 525) of any size.

§ 1904.3 Definitions. and days on which the employee would Employee as defined in section 3 of The following definitions apply to not have worked even though able to the Act, means an employee of an employer recording and reporting of work (e.g. weekends, holidays, pre- employer who is employed in a occupational fatalities, injuries and scheduled vacation days, etc.). The business of his or her employer which illnesses. count of days away from work ceases affects commerce. Act means the Occupational Safety with the termination of employment if Note to definition of ‘‘Employee’’: There and Health Act of 1970 (84 Stat. 1590 the termination is completely unrelated are a variety of circumstances which result in et seq., 29 U.S. 651 et seq.). The to the employee’s injury or illness. If the an employee/employer relationship for termination is related to the employee’s OSHA recordkeeping purposes. The definitions contained in section (3) of following is meant to be illustrative only, and the Act and related interpretations shall injury or illness, the employer must not meant to be an exhaustive list. Employees be applicable to such terms when used enter an estimate of the number of days include corporate officers as well as full- in this Part 1904. that would have been missed had the time, part-time, temporary and limited Days away from work means the employee not been terminated. For service workers who receive any form of number of days the employee would extended cases that result in 180 or compensation for their services. Employees more days away from work, an entry of include persons who may be labeled have worked but could not because of ‘‘independent contractors’’, or migrant an occupational injury or illness. Days ‘‘180’’ or ‘‘180+’’ in the days away from workers, and persons who are provided by a away from work do not include the day work column shall be considered an temporary help service or personnel leasing the employee was injured or became ill accurate count. agent when they are supervised on a day-to- Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4059 day basis by the employer utilizing their (6) Cleaning, flushing or soaking total contract value of one million services. Day-to-day supervision occurs wounds on skin surface dollars ($1,000,000) or more. An when, in addition to specifying the output, (7) Use of wound coverings such as employer (such as a general contractor) product or result to be accomplished by the bandages, gauze pads, etc. that retains another employer to work person’s work, the employer supervises the details, means, methods and processes by (8) Use of any hot/cold therapy (e.g. on the project is presumed to have which the work is to be accomplished. compresses, soaking, whirlpools, non- sufficient control over the Employees do not include sole proprietors, prescription skin creams/lotions for subcontractor’s performance to be partners, family members of farm employers local relief, etc.) except for considered a site controlling employer. or domestic household workers when musculoskeletal disorders (See In addition, an employer (such as a employed in the home (baby sitters, Mandatory Appendix B) construction manager) is a site housekeepers, gardeners, etc.). (9) Use of any totally non-rigid, non- controlling employer if it has Establishment means: immobilizing means of support (e.g. managerial or supervisory authority (1) A single physical location that is elastic bandages) with respect to employers engaged on in operation for 60 calendar days or (10) Drilling of a nail to relieve the project, regardless of whether it has longer where business is conducted or pressure for a contractual relationship with those where services or industrial operations (11) Use of eye patches employers. are performed. (For example: A factory, (12) Removal of foreign bodies not Subcontractor employees are mill, grocery store, construction site, embedded in the eye if only irrigation employees of construction firms (in SICs hotel, farm, ranch, hospital, central or removal with a cotton swab is 15, 16, and 17) who are present at a administrative office, or warehouse.) required construction project in connection with The establishment includes the primary (13) Removal of splinters or foreign their job(s) who are not employees of work facility and other areas such as material from areas other than the eyes the site controlling employer at that recreational and storage facilities, by irrigation, tweezers, cotton swabs or construction project. restrooms, hallways, etc. The other simple means Work environment means the establishment does not include Health care provider is a person establishment and other locations where company parking lots. operating within the scope of his or her employees are engaged in work or are (2) When distinct and separate license, registration or certification in present as a condition of their economic activities are performed at a health care. employment. single physical location, each activity Injury or illness is any sign, symptom, Work-related. An injury or illness is may represent a separate establishment. or laboratory abnormality which work-related if an event or exposure in For example, contract construction indicates an adverse change in an the work environment either caused or activities conducted at the same employee’s anatomical, biochemical, contributed to the resulting condition, physical location as a lumber yard may physiological, functional, or or aggravated a pre-existing condition. be treated as separate establishments. psychological condition. Work-relatedness is presumed for According to the Standard Industrial Medical treatment includes any injuries and illnesses resulting from Classification (SIC) Manual, Executive medical care or treatment beyond ‘‘first events or exposures occurring at the Office of the President, Office of aid’’. employer’s establishment. Work- Management and Budget, (1987) each Responsible Company Official is the relatedness is not presumed for injuries distinct and separate activity should be person accountable for certifying the and illnesses resulting from events or considered an establishment when no accuracy and completeness of the exposures away from the employer’s one industry description from the SIC entries on the OSHA Injury and Illness establishment; they are considered manual includes such combined Log and Summary. This person must be work-related only if the worker is activities, and the employment in each either an owner of the company, an engaged in a work activity or is present such economic activity is significant, officer of the corporation, the highest as a condition of employment. See and separate reports can be prepared on ranking company official working at the Mandatory Appendix A to part 1904 for the number of employees, their wages establishment, or the immediate a discussion of work-relatedness and and salaries, sales or receipts, or other supervisor of the highest ranking criteria for rebutting the presumption of types of establishment information. company official working at the work-relatedness. First aid means the following establishment. treatments for work-related injuries and Restricted work activity means the § 1904.4 OSHA Injury and Illness Log and illnesses. This list is a comprehensive employee is not capable of performing Summary (OSHA Form 300 or Equivalent). list of all treatments considered first aid at full capacity for a full shift: (a) Each employer shall maintain for for recordkeeping purposes. These (1) The task he or she was engaged in each establishment an OSHA Injury and treatments are considered ‘‘first aid’’, at the time of injury or onset of illness Illness Log and Summary [OSHA Form regardless of the provider, thus they (the task includes all facets of the 300 (formerly OSHA No. 200)] or may be provided by a physician, nurse, assignment the employee was equivalent form for recordable injuries or other health care provider and are performing); OR and illnesses experienced by his or her still considered first aid. (2) His or her daily work activity employees. Employers with multiple (1) Visit(s) to a health care provider (daily work activity includes all establishments may maintain a limited to observation assignments the employee was expected consolidated log for establishments (2) Diagnostic procedures, including to perform on the day of injury or onset employing no more than 20 employees. the use of prescription medications of illness). Employers who exercise this option solely for diagnostic purposes (e.g. eye Site controlling employer is an must enter the address of the affected drops to dilate pupils) employer in the construction industry employee’s establishment in the (3) Use of nonprescription (SIC codes 15, 16 and 17) with department column for each recorded medications, including antiseptics contractual, legal and/or practical injury or illness. (4) Simple administration of oxygen control over the performance, timing, or (b) Each employer shall enter every (5) Administration of tetanus or coordination of other employers’ work recordable injury and illness within 7 diphtheria shot(s) or booster(s) on a construction project with an initial calendar days of receiving information 4060 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules that a recordable injury or illness has experienced by employees of that same manner that notices are required occurred. A recordable injury or illness establishment, within 7 calendar days of to be posted under 29 CFR 1903.2(a)(1). is one which meets all of the following receiving information that a recordable The summary shall be completed and four criteria: injury or illness has occurred. Each posted no later than February 1 of the (1) An injury or illness exists (see the OSHA Form 301 must contain the year following the calendar year covered definition of injury or illness for unique case or file number relating it to by the summarized records, and shall additional information); and the corresponding case entry on the remain in place until January 31 of the (2) The injury or illness is work- OSHA Form 300. following year. related (see the definition of work- (b) An employer may maintain the (2) For employees who do not related and Appendix A to part 1904 for OSHA Form(s) 301 on an equivalent primarily report to or work at a single additional information); and form(s), by means of data processing establishment, employers shall satisfy (3) The injury or illness is new. A new equipment, or both, when all of the this posting requirement by presenting injury or illness does not result from the following conditions are met: or mailing a copy of the summary to recurrence of a pre-existing condition if (1) The equivalent form or computer each employee who is on the payroll at no new or additional workplace printout is as readable and any time during the month of January incident or exposure occurs. A understandable as the OSHA Form 301 following the calendar year covered by recurrence of a previous work related to a person familiar with the OSHA the year-end summary. injury or illness is presumed to be a new Form 301. (3) For employers who maintain a case when it either (1) results from a (2) The equivalent form or computer consolidated log of small establishments new work event or exposure, or (2) 45 printout must contain, all of the under § 1904.4(a), employers shall days have elapsed since medical information found on the OSHA Form satisfy this posting requirement by treatment, restricted work or days away 301, or must be supplemented by an posting a year-end summary based on from work were discontinued and the OSHA Form 301 containing the missing the consolidated log in each last signs or symptoms were information. The detailed information establishment. experienced; concerning the injury or illness (4) Multi-establishment employers do (questions 16, 17 and 18) must be asked not have to post year-end summaries for (Note: This presumption is rebuttable by in the same order and using identical medical evidence indicating that the prior establishments that have permanently case had not been resolved.) language from the Form 301. All other closed during the calendar year. questions may be asked in any manner and and in any order. § 1904.7 Location of records. (4) The injury or illness meets one or (a) The records required by §§ 1904.4, more of the following: § 1904.6 Preparation, certification and 1904.5, 1904.6 and 1904.17 for (i) results in death or loss of posting of the year-end summary. employees and ‘‘subcontractor consciousness, (a) Each employer shall post a year- employees’’ who report to or work at a (ii) results in day(s) away from work, end summary of occupational injuries single establishment, such as a factory, restricted work activity or job transfer, and illnesses for each establishment. construction site, grocery store, hospital, (iii) requires medical treatment This summary shall consist of the year’s warehouse, central administrative beyond first aid, or injury and illness totals from the OSHA office, etc. shall be kept at the (iv) is a recordable condition listed in Form 300 or equivalent, calendar year establishment. the Mandatory Appendix B to part 1904. covered, company name, establishment (b) Records for employees who report (5) See Appendix C to part 1904 for name, establishment address, annual to a particular establishment but work a decision tree for recording average number of employees, the total elsewhere shall be kept at the occupational injuries and illnesses. hours worked by all employees, and the establishment where the employees (c) Any employer may maintain the employee access and employer penalty report each day. OSHA Injury and Illness Log and statements as found on the OSHA Form (c) For employees who normally Summary (OSHA Form 300) on an 300. If no injuries or illnesses occurred report to one establishment but are equivalent form, by means of data during the year: Zeroes must be entered injured or become ill at another processing equipment, or both, when all on the totals line; annual average establishment within the same of the following conditions are met: number of employees and total hours company, a recordable injury or illness (1) The equivalent form or computer worked by all employees must be shall be entered on the Log of the printout is as readable and entered; and the form shall be posted. establishment in which they were understandable as the OSHA Form 300 Note: The OSHA 300 Log may be used injured or became ill. to a person familiar with the OSHA for the summary. The posting (d) Records for employees who do not Form 300. requirement may be met by simply report to any establishment on a regular (2) The equivalent form or computer copying and posting the portion of the basis may be kept at the transient work printout must contain, at a minimum, 300 Log to the right of column A. site(s) for each operation or group of the same information as found on the (b) A responsible company official operations or they may be kept at an OSHA Form 300. (see the definition of responsible established central location by: company official for further (1) Having the address and telephone § 1904.5 OSHA Injury and Illness Incident information) shall sign the summary of number of the central location available Record (OSHA Form 301 or Equivalent). occupational injuries and illnesses to at each worksite; and (a) In addition to the OSHA Injury certify that he or she has examined the (2) Having personnel available at the and Illness Log and Summary (OSHA OSHA Injury and Illness Log and central location during normal business Form 300) provided for under Section Summary and that the entries on the hours to provide information from the § 1904.4(a) of this Part, each employer, form and the year-end summary are records kept there. shall complete an OSHA Injury and true, accurate and complete. (e) Any employer may keep the OSHA Illness Incident Record [OSHA Form (c)(1) Each employer shall post a copy Form 300 or OSHA Form(s) 301 at a 301 (formerly OSHA Form 101)] for of the establishment’s year-end location other than the establishment, as each recordable injury or illness summary in each establishment in the long as the information is retrievable in Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4061 accordance with the provisions defined or other electronic transmission, the former employee(s) or his or her in § 1904.11, Access to records. employer may provide a copy to the designated representative access to all government representative present at OSHA Form(s) 301 or equivalent. § 1904.8 Period covered. the establishment or to the government Access shall be provided in a reasonable Records shall be kept on a calendar representative’s office. time. The employer may charge a year basis. (2) When the request is made in reasonable fee for searching and copying writing, the information must be § 1904.9 Retention and updating of work- expenses. related injury and illness records. provided within 21 days of receipt of (c) Nothing in this section shall be the written request, unless the Secretary (a) Retention. OSHA Forms 300 and deemed to preclude employees and requests otherwise. their designated representatives from 301 or equivalents, year-end summaries, (b) Employee(s), former employee(s) collectively bargaining to obtain access and injury and illness records for and/or their designated to information relating to occupational ‘‘subcontractor employees’’ as required representative(s). (1) Upon request, the injuries and illnesses in addition to the under § 1904.17 of this Part shall be employer shall make the OSHA Form information made available under this retained for 3 years following the end of 300 or equivalent available for viewing section. the year to which they relate. by an employee(s), former employee(s), (b) Updating. During the retention and/or their designated representative(s) (d) In the case of a deceased or legally period, employers must revise the by the close of business on the next incapacitated employee, the employee’s OSHA Form 300 or equivalent to scheduled work day. The employee, legal representative(s) may directly include newly discovered recordable former employee, and/or their exercise all the employee’s rights under injuries or illnesses. Employers must designated representative(s) shall have this section. revise the OSHA Form 300 to reflect access to the entire OSHA Form 300 changes which occur in previously § 1904.12 Reporting of fatality or multiple (Log), including personal identifiers, for hospitalization incidents. recorded injuries and illnesses. If the any establishment in which the description or outcome of a case employee is or has been employed. This (a) Within 8 hours after the death of changes, remove the original entry and includes access to the current Log and any employee from a work-related enter the new information to reflect the all Logs retained and maintained incident or the in-patient more severe consequence. Employers pursuant to § 1904.9. hospitalization of three or more must revise the year-end summary at (2) Upon request, the employer shall employees as a result of a work-related least quarterly if such changes have make available to an employee(s) or incident, the employer(s) of each occurred. former employee(s) for viewing his or employee so affected shall, report the Note to § 1904.9: Employers are not her OSHA Form(s) 301 or equivalent for fatality/multiple hospitalization by required to update OSHA Form 301 to reflect his or her own recordable injury or telephone or in person to the Area changes in previously recorded cases. illness by the close of business on the Office of the Occupational Safety and next scheduled workday. Health Administration (OSHA), U.S. § 1904.10 Change of ownership. (3) The employer shall also make Department of Labor, that is nearest to Where an establishment has changed copies available within 7 calendar days the site of the incident during regular ownership, each employer shall be whenever an individual who has a right business hours, or by using the OSHA responsible for recording and reporting to view a record(s) listed in paragraphs emergency toll-free central telephone occupational injuries and illnesses only (b) (1) and (2) of this section requests a number (1–800–321–OSHA [6742]) for that period of the year during which copy, either in person or in writing. The during non business hours. Note: The he or she owned such establishment, employer shall not, in writing or site controlling employer or designee but the new owner shall retain all otherwise, attempt to restrict the will be responsible for making the records of the establishment kept by the employees’ use of such copies. The report if no more than two employees of prior owner, as required by § 1904.9(a) employer shall assure that either: a single employer were hospitalized but, of this Part. (i) A copy of the record(s) is provided collectively, three or more workers were without cost to the individual; hospitalized as in-patients. § 1904.11 Access to records. (ii) The necessary copying facilities (b) This requirement applies to each (a) Government Representatives. Each (e.g., photocopying) are made available such fatality or hospitalization of three employer shall provide, upon a request without cost to the individual for or more employees which occurs within made in person or in writing, copies of copying the record(s); or thirty (30) days of an incident. the OSHA Forms 300 and 301 or (iii) The record(s) is loaned to the equivalents, and year-end summaries for individual for a reasonable time to (c) Exception: If the employer does their own employees, and injury and enable a copy to be made. not learn of a reportable incident at the illness records for ‘‘subcontractor (4) Whenever a record has been time it occurs and the incident would employees’’ as required under this Part previously provided without cost to an otherwise be reportable under to any authorized representative of the employee(s), former employee(s) and/or paragraphs (a) and (b) of this section, Secretary of Labor or Secretary of Health their designated representative(s), the the employer shall make the report and Human Services or to any employer may charge reasonable, non- within 8 hours of the time the incident authorized representative of a State discriminatory administrative costs (i.e. is reported to any agent or employee of accorded jurisdiction for occupational search and copying expenses but not the employer. safety and health for the purposes of including overhead expenses) for a (d) Each report required by this carrying out the Act. request by the same person for section shall relate the following (1) When the request is made in additional copies of the record, except information: establishment name, person, the information must be that an employer shall not charge for an location of incident, time of the provided in hard copy (paper printout) initial request of a copy of an updated incident, number of fatalities or within 4 hours. If the information is or corrected record. hospitalized employees, contact person, being transmitted to the establishment (5) Upon request, the employer shall phone number, and a brief description from some other location, using telefax make available to an employee(s), of the incident. 4062 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

§ 1904.13 Reports by employers. § 1904.14 Recordkeeping under approved Employees Exercising Rights Under the (a) Section 24 of the Act, 29 U.S.C. State plans. Williams-Steiger Occupational Safety 673, directs the Secretary of Labor, in (a) Recordkeeping and reporting and Health Act of 1970. An employer consultation with the Secretary of requirements promulgated by State who violates section 11(c) may be Health and Human Services, to develop plans are required to be substantially required to reinstate or rehire a fired and maintain a program of collection, identical to this Part (see 29 CFR employee with back pay. compilation, and analysis of 1902.3(k) and 29 CFR 1952.4). State occupational safety and health statistics. § 1904.17 Subcontractor records for major plans shall promulgate recordkeeping construction projects. Section 24 also requires employers to and reporting requirements that are file reports with the Secretary on ‘‘the identical to the Federal requirements for (a) Any site controlling employer in basis of records made and kept pursuant determining the types of injuries and the construction industry (SICs 15, 16 to Section 8(c) of this Act.’’ Section 8(c), illnesses that will be entered into the and 17), for construction projects with an initial total contract value of one 29 U.S.C. 657(c), requires each employer records and the manner in which they million dollars ($1,000,000) or more, to ‘‘make, keep and preserve, and make are entered. All other recordkeeping and shall maintain a separate occupational available to the Secretary or the reporting requirements that are injury and illness record (subcontractor Secretary of Health and Human promulgated by State plans shall be at record) for recordable injuries and Services, such records regarding his least as effective as the Federal illnesses sustained by ‘‘subcontractor activities relating to this Act’’ as requirements. employees’’ (not considered employees prescribed by regulation for (b) Records maintained by an of the site controlling employer) while enforcement of the Act or ‘‘for employer and reports submitted, working at the construction project. On developing information regarding the pursuant to and in accordance with the the subcontractor record, the site causes and prevention of occupational requirements of an approved State plan controlling employer is only required to accidents and illnesses.’’ Section 8(c) under section 18 of the Act, shall be record occupational injuries and also directs the Secretary of Labor, in regarded as compliance with this Part. illnesses of ‘‘subcontractor employees’’ cooperation with the Secretary of Health (c) State and local government who are employed by a construction and Human Services, to prescribe agencies are exempt from Federal OSHA firm who had eleven (11) or more full regulations requiring employers to recordkeeping in States under the and/or part-time employees at any one maintain accurate records of, and to jurisdiction of Federal OSHA. However, time during the calendar year make periodic reports on work-related in States with their own OSHA immediately preceding the current deaths, injuries, and illnesses. approved safety and health programs, calendar year. (Note: The size threshold (b) Pursuant to the statutory authority State and local government agencies is based on the number of employees of described above, the Secretary of Labor must keep injury and illness records in the entire firm or corporation, not of an and Secretary of Health and Human accordance with State law and 29 CFR individual establishment.) Services may request reports from 1952.4. employers regarding the employers’ (b) The site controlling employer shall activities relating to the Act. These § 1904.15 Petitions for recordkeeping comply with the requirements of requests for reports shall be in writing, exceptions. § 1904.4(b) in determining which shall describe what information must be All requests or variances for injuries and illnesses are recordable on reported, and may include a request for recordkeeping exceptions shall be made the subcontractor record, and when to copies of records kept pursuant to 29 in accordance with the procedures set record them. The injury and illness CFR Part 1904, information that the forth in 29 CFR 1905. Any exception information for each recordable case employer is required to maintain by granted prior to [Effective date of final occurring to ‘‘subcontractor employees’’ regulations or standards promulgated rule] is null and void. shall include the person’s name, pursuant to the Act, information company, date of the event which required to participate in periodic § 1904.16 Falsification of, or failure to keep resulted in the injury or illness, and a surveys of occupational injuries and records or provide reports. brief description of the injury or illness. illnesses, and/or information necessary (a) Section 17(g) of the Act provides The site controlling employer shall also to determine rates of injury, illness or that ‘‘Whoever knowingly makes any include the location of the site and the exposure, such as employment and false statement, representation, or period of time covered on the record. hours of work. Note: Employers who are certification in any application, record, The site controlling employer shall otherwise exempted under § 1904.2 of report, plan or other document filed or maintain all subcontractor records this Part, shall upon notification by the required to be maintained pursuant to pertaining to one construction site in a Secretary of Labor or Secretary of Health this Act shall, upon conviction, be consolidated file by calendar year. The and Human Services, maintain the punished by a fine of not more than site controlling employer has the option OSHA Log and Summary on Injuries $10,000, or by imprisonment, for not of using a separate OSHA Form 300, an and Illnesses for any year in which they more than 6 months or both.’’ equivalent form, or a collection of are notified that they have been selected (b) Failure to maintain records or file records to satisfy this requirement. Note: for participation in a data collection reports as required by Part 1904, or as The employer of the ‘‘subcontractor program of occupational injuries and required by the forms and instructions employee’’ is not relieved of the illnesses. issued under Part 1904, may result in responsibility of completing the OSHA (c) The employer shall file the the issuance of citations and assessment Form 300 or equivalent as required by requested reports with the Secretary of penalties as provided for in sections § 1904.4(a). within 21 calendar days of receipt of the 9, 10, and 17 of the Act. (c) For those construction projects request, unless the Secretary requests (c) An employee who is subject to where there is more than one site otherwise. retaliatory discrimination by his or her controlling employer, those employers (d) Nothing in any State plan employer for filing a report of a work- may agree to assign the responsibility approved under section 18(c) of the Act related injury or illness is protected by for maintaining the subcontractor shall affect the duties of employers to Section 11(c) of the OSH Act and 29 records to one of the site controlling submit required reports. CFR 1977 Discrimination Against employers by means of a written Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4063 agreement. When such a written B. Non Work-Related Injuries and Illnesses. to, travel to and from customer contacts, agreement exists, the other site The following injuries and illnesses are not conducting job tasks, and entertaining or controlling employers on the project are considered work-related. Only the following being entertained for the purpose of not required to maintain the may be used to rebut the presumption of transacting, discussing, or promoting work-relatedness that applies to injuries and subcontractor record regardless of business. illnesses occurring at the employers’ 2. When traveling employees check into a whether they may be deemed to be site establishment: hotel, motel or other lodging, they establish controlling employers. 1. Injuries or illnesses will not be a ‘‘home away from home’’. Thereafter, their (d) The site controlling employer is considered work-related if they occur to activities are evaluated in the same manner not required to complete an OSHA Form individuals present at their employer’s as for non-traveling employees. For example, 301 for injuries or illnesses experienced establishment as a member of the general injuries sustained when commuting from a by ‘‘subcontractor employees’’. Note: public rather than as a worker. hotel to a site are not work- The employer of the ‘‘subcontractor 2. Injuries or illnesses will not be related, just as injuries sustained during an considered work-related if they involve employee’s normal commute from a employee’’ is not relieved of the symptoms that surface at work but solely permanent residence to an office would not responsibility of completing the OSHA result from a non-work-related event or be considered work-related. Form 301 or equivalent as required by exposure outside of the work environment. § 1904.5(a). 3. Injuries or illnesses will not be 3. While an employee is in travel status, (e) The site controlling employer is considered work-related if they result solely the following situations are not considered not required to prepare a year-end from voluntary participation in wellness work-related: summary for injuries and illnesses programs, medical, fitness and recreational i. Normal commuting between the activities (e.g. exercise classes, blood employee’s temporary residence and his or experienced by ‘‘subcontractor her job; and employees’’. Note: The employer of the donations, physicals, flu shots, racquetball, baseball, etc.). ii. Situations where the employee departs ‘‘subcontractor employee’’ is not 4. Injuries or illnesses will not be from a reasonably direct route of work- relieved of the responsibility of considered work-related if they solely result related travel for personal reasons (e.g., a side completing the year-end summary as from a worker eating, drinking or preparing trip for a vacation). required by § 1904.6(a).) his or her own food when unrelated to D. Employees who work in their own home. (f) The site controlling employer is occupational factors. An injury or illness will be considered work- not required to update the injury and 5. Injuries or illnesses will not be related if it occurs while the employee is illness records for ‘‘subcontractor considered work-related if they are solely the performing work for pay or compensation in employees’’. Note: The employer of the result of workers doing personal tasks the home, if the injury or illness is directly ‘‘subcontractor employee’’ is not (unrelated to their employment) at the related to the performance of work rather establishment outside of normal working relieved of the responsibilities to update than the general home environment or hours. setting. the injury and illness records as 6. Cases will not be considered work- E. Employees who live at the employer’s required by § 1904.9(a). related if they result solely from acts of establishment. violence committed by one’s family or ex- 1. Some workplaces provide living quarters Appendix A to Part 1904ÐWork- spouse when unrelated to the worker’s for employees. Off-shore oil rigs, ships and Relatedness (Mandatory) employment, including intentionally self- construction sites at remote locations inflicted injuries. commonly provide their employees with If an event or exposure in the work 7. Injuries or illnesses will not be environment either caused or contributed to living accommodations. considered work-related if they occur on 2. In these workplaces, injuries or illnesses an injury or illness, or aggravated a pre- company parking lots and access roads while are presumed to be work-related if the existing condition, then the case is employees are arriving at or leaving work. employee is on-duty or engaged in a work considered work-related. Work-relatedness is 8. An injury or illness will not be activity. The injury or illness is also presumed for injuries and illnesses resulting considered work-related if the worker was considered work-related if the employee was from events or exposures occurring at the never engaged in any duty at work that could employer’s establishment. Injuries or have placed stress on the affected body part harmed as a result of a serious workplace illnesses occurring away from the or was never exposed to any chemical or accident such as a chemical release, fire, establishment are considered work-related physical agent at work that could be explosion, shipwreck, steam release, or only if the worker is engaged in a work associated with the observed injury or building collapse. activity or is present as a condition of his or illness. 3. All other injuries and illnesses occurring her employment. 9. An injury or illness will not be during off-duty hours are considered non- A. Work-Related Injuries and Illnesses— considered work-related if the case results work-related. Special Situations: Injuries or illnesses are solely from activity in voluntary community considered to be work-related if they occur or civic projects away from the employer’s Appendix B to Part 1904ÐRecording of in the following situations: establishment. Specific Conditions (Mandatory) 1. While the employee is engaged in work 10. An injury or illness will not be activity or /vocational training considered work-related if the case results The purpose of this appendix is to provide required by the employer. solely from normal body movements, i.e. information for the recording of specific 2. While the employee is on break, in the walking unencumbered, talking, tying a shoe, conditions which may not be captured by the rest room or in storage areas when located on sneezing, coughing, provided the activity other recordability criteria. For purposes of the employer’s premises. does not involve a job-related motion and the OSHA-mandated recordkeeping, the 3. While the employee is performing work work environment does not contribute to the conditions listed in this appendix are for pay or compensation at home, if the injury or illness. considered Recordable Injuries and Illnesses injury or illness is directly related to the 11. Mental illness will not be considered when the condition listed is work-related. performance of work rather than the general work-related, except mental illnesses The employer shall evaluate, for OSHA home environment or setting. associated with post-traumatic stress. injury and illness recordkeeping purposes, 4. While the employee is traveling on C. Travel Status. all information received as a result of business, including to and from customer 1. Employees in travel status (i.e. traveling medical surveillance required by an OSHA contacts. on company business) should be considered standard. 5. While the employee is engaged in work engaged in work-related activities during all Conditions not included in this Appendix activity where a vehicle is considered the of their time spent in the ‘‘interest of their that otherwise meet the criteria in the work environment (e.g. truck, taxi, etc.). company’’. This includes, but is not limited § 1904.4.(c) must be recorded. 4064 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

TABLE OF SPECIFIC CONDITIONS

System Condition Recording criteria

Multi-system ...... Carbon monoxide poi- Elevated carboxyhemoglobin levels and/or diagnosis by a health care provider. soning. Mercury ...... 15 micrograms or greater per liter (µg/L) of whole blood or 35 micrograms or greater per gram (µg/g) creatinine in urine and/or diagnosis of mercury poisoning by a health care provider. Lead ...... 40 micrograms or greater per 100 grams (µg/100g) of whole blood and/or diagnosis of by a health care provider. Cadmium ...... Ð3 micrograms or greater per gram (µg/g) creatinine in urine; or ÐB2-microglobulin 300 micrograms or greater per gram (µg/g) creatinine in urine; or Ð5 micrograms of cadmium or greater per liter (µg/L) of whole blood. Benzene ...... Phenol level of 75 milligrams or greater per liter (mg/L) of urine or abnormal blood counts. Musculo-skeletal system ...... Fractures of the Positive X-ray and/or diagnosis by a health care provider. bones or teeth. Musculoskeletal dis- Diagnosis by a health care provider and/or objective finding(s) (e.g. positive Tinel's, orders. Phalen's or Finkelstein's test; or swelling, redness indicative of inflammation, deform- ity, loss of motion, etc.) Musculoskeletal disorders may occur in the neck, back, shoulder, arm, hand, fingers, leg and/or foot. Examples of musculoskeletal disorders include but are not limited to car- pal tunnel syndrome, tendinitis, epicondylitis, synovitis, thoracic root lesions, Raynaud's syndrome, and tarsal tunnel syndrome. For musculoskeletal disorders only, medical treatment shall include two or more applica- tions of hot/cold therapy as directed by a health care provider. Sensory organs ...... UV burning of the cor- Recognition/diagnosis of welder's flash or flashburn. nea or retina. Hearing loss ...... An average shift of 15 decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both ears. The change in hearing may be adjusted for presbycusis (age related hear- ing loss). The record of the injury or illness may be deleted if a retest performed with 30 days disproves the original shift. Once a 15 dB shift has occurred, the baseline (for recordkeeping purposes) should be adjusted to reflect this result. A subsequent test revealing an additional 15 dB shift from this new or revised baseline value is a new in- jury or illness. Work-relationship is presumed if an employee is exposed to an 8 hour time weighted average sound level of noise equaling or exceeding 85 dB(A). Skin ...... Burns (heat, chemical Third degree burns (and first and second degree burns requiring medical treatment be- and radiation burns). yond first aid, restricted work activity, days away from work, loss of consciousness or death). Skin disorders ...... Lasting beyond 48 hours, including but not limited to allergic or irritant contact dermatitis. Lacerations ...... Requiring closure including but not limited to the use of sutures, adhesive closures and staples. Respiratory system ...... Asthma and other ob- ÐInitial episode, regardless of duration, diagnosed by a health care provider. Or structive airway dis- eases. ÐAny recurrent episode, regardless of duration, that results in the administration of pre- scription drugs and/or diagnosis by a health care provider. Note: Obstructive airway diseases include but are not limited to reactive airways dys- function syndrome (RADS), chronic obstructive pulmonary disease (COPD), and chronic obstructive bronchitis. Pneumoconiosis (e.g. Diagnosis by a health care provider, radiography profusion category of 1/1 or greater by asbestosis, silico- the International Labor Organization (ILO) classification system. sis, coal worker's pneumoconiosis, beryllium disease, etc.). Mesothelioma ...... Diagnosis by a health care provider, pleural plaques and/or pleural thickening. Byssinosis ...... Diminished pulmonary function (an FEV1 of less than 80% of the predicted value)and/or diagnosis by a health care provider when worker has been exposed to dust from cot- ton or flax which has not undergone wet treatments. Tuberculosis infection First positive tuberculin skin test reaction indicative of new infection, except pre-place- or disease. ment; Or Diagnosis of active tuberculosis by a health care provider. A case of tuberculosis dis- ease or tuberculosis infection is presumed to be work-related in the following indus- tries: correctional facilities; health care facilities; homeless shelters; long-term care fa- cilities for the elderly; and drug treatment centers. The employer may rebut this pre- sumption of work relationship by providing evidence that the employee is known to have had a non-work exposure to active TB. Examples include situations in which (1) An employee is living in a household with a person diagnosed with active TB or (2) the Public Health Department lists the employee as a contact to a case of active TB. For all other industries a case would be considered work-related under the following cir- cumstance: An employee tests positive for tuberculosis infection after being exposed to a person within the work environment known to have tuberculosis disease. The case of the person with TB disease, however, would not be presumed work-related if there was no known exposure within the work environment. Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4065

TABLE OF SPECIFIC CONDITIONSÐContinued

System Condition Recording criteria

Respiratory system ...... Hypersensitivity pneu- Diagnosis by a health care provider of woodworker's , farmer's lung, malt worker's monitis (non-asth- lung, mushroom worker's lung, cheese washer's lung, miller's lung, etc. when the matic allergic worker has been exposed to the relevant substance. breathing disorders caused by organic dust and other anti- genic aerosols). Toxic inhalation in- Diagnosis by a health care provider and/or respiratory distress requiring overnight hos- juryÐbreathing dis- pitalization. orders (such as )due to inhal- ing chemicals. Miscellaneous ...... Bloodborne pathogen Any workplace bloodborne pathogen exposure incident (as defined in 1910.1030(b)) that diseases. results in a positive blood test or diagnosis by a health care provider indicating AIDS, HIV seroconversion, hepatitis B or hepatitis C; Or Any laceration or puncture wound that involves contact with another person's blood or other potentially infectious materials. Note: to protect employee confidentiality, employers shall record occupationally acquired bloodborne pathogen diseases, such as hepatitis B, simply as the initial bloodborne exposure incident and note the exposure type (e.g. needlestick). Seroconversion and specific type of bloodborne disease shall not be recorded. Hepatitis (toxic or in- Positive blood test and/or diagnosis by a health care provider. fectious). Work-related injuries and illnesses are recorded if they result in death, loss of consciousness, days away from work, restricted work activ- ity, medical treatment beyond first aid, or the criteria in this table.

BILLING CODE 4510±26±P 4066 Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules

Appendix C to Part 1904ÐDecision Tree for Recording Occupational Injuries and Illnesses

BILLING CODE 4510±26±C Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / Proposed Rules 4067

PART 1952Ð[AMENDED] requirements that are identical to the (c) Variances to State injury and Federal requirements for determining illness recordkeeping and reporting 2. The authority citation for Part 1952 the types of injuries and illnesses that requirements under an approved plan continues to read as follows: will be entered into the records and the must be obtained from the Occupational Authority: 29 U.S.C. 667; 29 CFR Part manner in which they are entered. All Safety and Health Administration of the 1902, Secretary of Labor’s Order No. 1–90 (55 other recordkeeping and reporting U.S. Department of Labor. Therefore, a FR 9033). requirements that are promulgated by State may not grant a variance to 3. Section 1952.4 would be revised to State plans shall be at least as effective recordkeeping and reporting read as follows: as the Federal requirements. requirements under their own procedures. § 1952.4 Injury and illness recordkeeping (b) A State is not prohibited from and reporting requirements. requiring supplementary reporting or (d) In order to insure the uniformity of the injury and illness statistics, a (a) Injury and illness recordkeeping recordkeeping data, but such additional State must recognize all variances and reporting requirements promulgated data must be approved by the granted by the Occupational Safety and by State plans are required to be Occupational Safety and Health Health Administration. substantially identical to 29 CFR Part Administration to insure that there will 1904. State plans shall promulgate be no interference with the uniform [FR Doc. 96–1942 Filed 2–1–96; 8:45 am] recordkeeping and reporting reporting objectives. BILLING CODE 4510±26±P