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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
October 8, 1999
Jerry M. Gillooly
Bohl Crane, Inc.
534 Laskey Road
Toledo Ohio 43612
Dear Mr. Gillooly:
Thank you for your letter, dated July 20, 1999 addressed to Charles N. Jeffress enclosing copies of and inquiring about the nonresponse to six of your letters addressed to various OSHA directorates over the past two years. We have been provided with a copy of the letter dated November 16, 1998 which you addressed to this office. As Ms. Ilma Rosskopf informed you over the telephone on August 10, 1999, we have no record of receiving the original letter and apologize for the long delay. In your original letter, you request a fresh interpretation concerning the recording of back disorders such as lumbar strains on the OSHA 200.
As you correctly noted, in Q&A D-4 on Page 38 of the Recordkeeping Guidelines for Occupational Injuries and Illnesses, it is stated that back cases should be classified as injuries. This is, in part, "to keep recordkeeping determinations as simple and equitable as possible." You note that you are not sure that you "agree with the premise" and cite other OSHA documents, which do not deal with recordkeeping and which you consider to contain "contrary pronouncements." You also state that you would "prefer" to make a case-by-case determination whether any given back case is an injury or illness for recordkeeping purposes, based upon specific facts.
Many years ago, the Bureau of Labor Statistic (BLS) determined that, "because back cases are usually triggered by an instantaneous event" employers should record all back cases as injuries, regardless of the particular facts of the case (Recordkeeping Guidelines, Page 38, Q&A D-4 ). OSHA has followed this interpretation in subsequent opinion letters. As you may know, OSHA is in the process of revising its Recordkeeping regulations, 29 CFR Part 1904, and the issue you raise concerning the recording of back injuries is one of many that OSHA is considering as a part of revising the regulations. However, in order to maintain the consistency of the data that are currently kept using the existing Part 1904 regulations, employers should comply with the current regulations and interpretations until the revision of the recordkeeping system becomes effective. The current system provides nationwide consistency on the OSHA No. 200 and 101 recordkeeping forms, the BLS Survey of Occupational Injury and Illnesses, and for employers and employees. Therefore, until Part 1904 is revised, employers should record all back cases as injuries.
You also ask whether you would be subject to a citation for a violation of 29 CFR 1904.2(a) if you "record a back case as an illness?" For the reasons explained above, classification of a back case as an illness rather than an injury is a violation of Section 1904.2(a), as interpreted by the Recordkeeping Guidelines. However, in determining whether or not to issue a citation, OSHA follows OSHA Directive, CPL 2.111 - Citation Policy for Paperwork and Written Program Requirement Violations, dated 11/27/1995, a copy of which is enclosed. Please refer to Section G.2 for OSHA's enforcement policy concerning violations of Part 1904. While it is impossible to generalize - because the issuance of a citation and the assessment of a penalty is dependent upon the specific facts presented--if an employer were to erroneously record a back case as an illness, and that were the only issue at hand, it seems likely that, given the criteria set forth in Section G.2.d. and e., such an error would not "materially impair the understandability of the nature of the hazards, injuries and illnesses in the workplace" and that the employer simply would be "provided information on maintaining the records....accurately....." No citation would be issued, but the employer would be expected to correct the records.
I hope you find this information useful. If you have any further questions or comments, please contact the Division of Recordkeeping Requirements, at: (202) 693-1702.
Cheryle A. Greenaugh
Director, Directorate of Information Technology