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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 https://www.osha.gov.
November 19, 2002
Baruch Fellner, Esq.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036-5306
Re: December 12, 2001 Recordkeeping Training
Dear Mr. Fellner:
This is in response to your letter to Joseph Woodward dated January 15, 2002 regarding OSHA's December 12, 2001 recordkeeping training broadcast. Your letter has been referred to me for response because it involves interpretation of the new recordkeeping rule. Your letter questions the accuracy of the on-the-air responses given to two questions phoned in during the broadcast and expresses concern that certain interpretations of the recordkeeping rule reflected in the settlement agreement in the NAM v. Chao litigation have not been explicitly incorporated into OSHA's training and outreach materials. After reviewing the transcript of the broadcast and the content of the other web-based training materials, I agree that it would be useful to supplement or clarify some information provided, as discussed below.
First, during the broadcast, a caller asked the following question: "If an employee is simply walking down a hallway and let's say that there is no pre-existing injury and they simply just pull a muscle in their leg while they're walking down, is that considered work related? One of the OSHA panelists answered:
You know, what we have is we have a presumption of work relationship if it occurs from an event or exposure within the work environment. So, this person is walking down the hall and, if there is no event or exposure that led to the condition, then I don't think that presumption would apply. Do you agree with that, Jim?
The second OSHA panelist responded: "It sounds like a work-related case to me. I mean, it sounds like the person was injured while they were in the work environment and, yeah, I would consider that a work-related case."
As the differing responses given by the panelists may suggest, the question as posed provides too little information about the factual context of the injury to make a conclusive determination about causation. We therefore believe that the most helpful way to clarify the response is to set forth the principles that should be followed in determining whether an injury is work-related. Under the recordkeeping rule, an injury or illness is presumed work-related if (and only if) an event or exposure in the work environment is a discernable cause of the injury or illness or a significant aggravation to a pre-existing condition. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause (§29 CFR 1904.5(a); Compliance Directive Chapter. 2, Sec. IC). As acorollary, the rule recognizes that a case is not recordable if it involves signs or symptoms that surface at work but result solely from a non-work-related event or activity that occurs outside the work environment (§29 CFR 1904.5(b); Compliance Directive Chapter. 2, Sec. IC). The rule also provides guidance for situations in which it is not clear which of these categories an injury falls into. If it is not obvious whether the precipitating event occurred in the work environment or elsewhere, the employer is to evaluate the employee's work duties and environment and make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness or of a significant aggravation of a pre-existing condition (§29 CFR 1904.5(b)(3)). The employer may consult a health care professional for assistance in making this determination if it wishes.
These principles should be applied to the question posed. If it is obvious in context that walking or some other work event or exposure was a cause of the injury, the case is work-related. If it is obvious work events or exposures were not a cause, but rather symptoms surfaced at work but resulted solely from non-work-related activities, the case is not work-related. If it is unclear, the employer should evaluate the employee's work duties and environment and determine whether it is more likely than not that work events or exposures were a cause. OSHA will post a clarification of its answer to this question on its web page.
Second, later in the broadcast, a caller asked the following question: "If oxygen is given by emergency response personnel on the way to the hospital, is that considered to be OSHA recordable, if he does not have any medical treatment at the hospital?" The OSHA panelist answered, "Under the new rule, oxygen is considered medical treatment. So, if the person has an injury or illness, you know, if they'reexhibiting some signs of difficulty and they're given oxygen,then that's now considered medical treatment (emphasis added)."
Contrary to your reading, I do not understand the question to assume that no injury or illness requiring medical treatment was present; rather, the question is whether the administration of oxygen is medical treatment that makes a case recordable. The question and answer, reasonably read together, indicate that a case is recordable if an employee with a work-related injury or illness is given oxygen in an ambulance on the way to the hospital, even though no further medical treatment is provided at the hospital. I believe that this information is accurate as it stands. However, to avoid any possibility of confusion, I have recommended that the training given to compliance officers emphasize that employees must have sustained an injury or illness, as defined by the recordkeeping rule, before the administration of oxygen, or any other medical treatment, makes the case recordable.
Finally, I have discussed your general comments about the training materials with other responsible officials in the agency. OSHA agrees it would be helpful to include references to the compliance directive. It is appropriate that interpretive language in the settlement agreement be reflected in the Agency's training materials, such as the Power Point slides, where such incorporation would be relevant and useful.
The Associate Solicitor for Occupational Safety and Health has reviewed this letter and agrees that the Agency's position is consistent with the settlement agreement in NAM v. Chao.
The Office of Training and Education is reviewing the recordkeeping training and outreach materials and will make all necessary revisions as soon as possible.
Thank you for bringing this matter to the Agency's attention. I hope I addressed all of your issues and concerns.
Frank Frodyma, Acting Director
OSHA Directorate of Evaluation and Analysis
Joseph Woodward, Esq.
Associate Solicitor for the Occupational Safety and Health Administration
Department of Labor
Office of the Solicitor
200 Constitution Avenue, NW Room S-4004
Washington, DC 20210
Re: December 12, 2001 OSHA Recordkeeping Training
While we very much appreciate the proactive efforts being made by the agency to provide training as it implements the new rule, I am writing on behalf of NAM to express my concern that the Department of Labor's keynote training presentation regarding the new recordkeeping rule, its December 12, 2001 satellite "webcast," contained information inconsistent with our settlement agreement and omitted information central to that agreement.
First, as you know, an injury or illness is not presumed to be work-related unless "an event or exposure in the work environment is a discernable cause of the injury or illness or of a significant aggravation to a pre-existing condition." See, inter alia, Settlement Agreement section 2(B) (emphasis added). The Settlement Agreement restates this important principle: "Regardless of where signs or symptoms surface, a case is recordable only if a work event or exposure is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition." Id. (emphasis added). In other words, it is not the location where signs or symptoms surface, it is the discernible work-related event that defines causation and triggers recordation. In response to a question regarding a pulled muscle that occurred in the workplace, but with which no identifiable work-related event or exposure could be identified, the representative from OSHA's Office of Statistics correctly noted that "if there is no event or exposure that led to the condition, I don't think that presumption [of work-relatedness] would apply." Transcript at pp. 44-45.* Another authoritative OSHA spokesperson, however, disagreed with his colleague and stated, "It sounds like a work related case to me. It sounds like the person was injured while they were in the work environment and, yeah, I would consider that a work related case." Id. at p. 45 (emphasis added). I am concerned that this response and OSHA's training materials impart an erroneous view of the so-called geographic presumption. Unfortunate events which occur to an individual while he is at work and engaged in normal life functions, such as walking over an even surface and pulling a muscle, should not be presumed to be work-related simply because they occur at work. Absent some other identifiable work-related event or exposure in the work environment, such a conclusion clearly conflicts with the "discernable cause" rule to which OSHA agreed in the settlement. Any training to the contrary ignores the agreement's imposition on the Secretary of Labor the burden of proof regarding work-relatedness and is contrary to its substantive provisions.
Second, our settlement agreement clearly specifies that the existence of an injury or illness is a threshold inquiry and that, even where, for example, oxygen is administered, in the context of workplace exposure to a toxic substance, if an injury or illness did not occur, the case remains non-recordable. See Settlement Agreement at sections 2(E), (F); accord Transcript at p. 86 (discussing non-recordability of precautionary administration of antibiotics). In response to a question relating to this specific issue, which assumed the prophylactic administration of oxygen without any toxic exposure or medical treatment, however, OSHA's spokesperson replied that, "Under the new rule, oxygen is considered medical treatment. So if the person has an injury or illness ... if they're exhibiting some signs of difficulty and they're given oxygen, then that's now considered medical treatment." Transcript at p. 46 (emphasis added). The problem with the response is two-fold: (1) It ignores the question's assumption that no injury or illness requiring medical treatment was present and (2) it equates "some sign of difficulty" with an illness or injury. As you know, the settlement expressly states that an employee must exhibit symptoms of an injury or illness in order for the administration of oxygen to constitute recordable medical treatment. Settlement Agreement at section 2(F). "Some signs of difficulty," particularly in the absence of any medical treatment, would not necessarily constitute "symptoms of an injury or illness." For example; a professional football player who leaves the field winded and who takes a breath of oxygen might be experiencing "some signs of difficulty" but might not be suffering from "symptoms of an injury or illness." Thus, the answer to the question as posed should have clearly been that the administration of oxygen, absent other medical treatment or related injury or illness, is not recordable. Without further clarification, I am concerned that the OSHA reply might have led participants to conclude that almost all administrations of oxygen are presumptively recordable cases.
Third, I am generally concerned that OSHA's training materials (including the satellite presentation and the materials contained on OSHA's web site) completely omit any reference to a number of significant interpretations in the settlement agreement. For example, neither the satellite training nor the Power Point "Comprehensive Presentation" on OSHA's web site address the preventive transfer issue, an important clarification contained in our settlement agreement. SeeSettlement Agreement at section 2(C). I respectfully suggest that this issue should be discussed in order to provide full context for any understanding of restricted work. The training materials also fail to discuss the "discernable cause" concept, and the "more likely than not" analysis employed when causation is unclear. Instead, the materials leave the regulated community with the mis-impression that unless "symptoms arising in [the] work environment are solely due to [a] non-work-related event or exposure," they are otherwise recordable. See Comprehensive Presentation at Slide 16 (emphasis added); see also id. at Slide 13 (restating geographic presumption without clarification from settlement agreement). Appropriate clarification would have resolved the confusion attendant to the first issue described above. Additionally, the discussion of hearing loss causation at pages 63 to 64 of the satellite training transcript would have been an appropriate point at which to apply these principles.
Finally, we believe that future training should identify the compliance directive, which incorporates the settlement agreement, as an important source of clarification for recordkeeping questions. For example, at pages 77, 78, 90 and 91, the trainers identified a number of sources of information, but did not mention the compliance directive.
Our principal concern is that if these issues are not presented clearly during OSHA's primary training sessions, they will not be executed properly by OSHA's field staff. OSHA's compliance officers will provide advice and issue citations based upon an erroneous understanding of these critical issues, and theprinciples embodied in the compliance directive will not be consistently and correctly applied throughout the nation.
Thank you for your consideration of my thoughts. I appreciate the opportunity to engage in a constructive dialogue asemployees, employers and OSHA work together to implement the new rule.
Baruch A. Fellner
cc: The Honorable John Henshaw
The Honorable Christopher Spear
Mr. Tevi Troy
* The transcript of the training session is available at http://www.vodium.com/vs_data/transcript/labor8NG8Y91T.txt.