August 3, 2006

Ms. Joan Brooker
Safety Administrative Assistant
WACO® Scaffolding & Equipment
4545 Spring Rd.
Cleveland, OH 44131-8028

Dear Ms. Brooker:

Thank you for your March 24, 2006 letter to the Occupational Safety and Health Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904. Specifically, you requested information on how to record a work-related injury when a physician recommends a work restriction but the employer sends the employee home because no restricted work is available.

Scenario: An employee is injured at work and placed on restricted work by a physician. The employer is not able to accommodate the employee in a work restriction and sends the employee home. Should the employer follow the physician's mandate and record the injury as restricted work, or because no restricted work was available and the employee was sent home, must the injury be recorded as days away from work?

Response: Section 1904.7 provides that a work-related injury or illness must be recorded if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.

Under the OSHA recordkeeping system, the employer has the ultimate responsibility for making good-faith recordkeeping determinations regarding an injury and/or illness. Employers must decide if and how a particular case should be recorded and their decision must not be an arbitrary one. In addition, determinations concerning how and when to restrict an employee's work activities can only be made by the employer.

The preamble to the 2001 final rule addressing OSHA's revised injury and illness recordkeeping requirements in Part 1904 states:

"The final rule's restricted work provisions also clarify that work restriction must be imposed by the employer or be recommended by a health care professional before the case is recordable. Only the employer has the ultimate authority to restrict an employee's work, so the definition is clear that, although a health care professional may recommend the restriction, the employer makes the final determination of whether or not the health care professional's recommended restriction involves the employee's routine functions. Restricted work assignments may involve several steps: a Health Care Professional's (HCP) recommendation, or employer's determination to restrict the employee's work, the employer's analysis of jobs to determine whether a suitable job is available, and assignment of the employee to that job. All such restricted work cases are recordable, even if the health care professional allows some discretion in defining the type or duration of the restriction..." See 66 Federal Register (page 5980, 3^rd column), January 19, 2001.

In the above scenario, the physician determined that the employee should be placed on a work restriction, but the employer was not able to accommodate the employee and the employer sent the employee home. Under Part 1904, because the employer has the ultimate responsibility to determine if and how a case should be recorded, the case should be designated as "Days away from work."

You also inquired about "publishing a book that would be easy to refer to in answering recordkeeping questions." OSHA has a new publication called The OSHA Recordkeeping Handbook on OSHA's Recordkeeping homepage, http://www.osha.gov/recordkeeping. The OSHA Recordkeeping Handbook is a compendium of existing agency approved policy, including the 2001 Recordkeeping rule (Regulatory text and relevant decision discussion from the Preamble to the rule), Frequently Asked Questions, and the Letters of Interpretation. The following Letter of Interpretation is analogous to your question above, 06/23/2006 - No Restricted Work Available, http://www.osha.gov/recordkeeping/RKinterpretations.html.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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. In addition, 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 www.osha.gov. If you have any further questions, please contact the OSHA Office of Statistical Analysis at 202 693-1876.

Sincerely,



Keith L. Goddard, Director
Directorate of Evaluation and Analysis