This document provides general guidance about OSHA's recordkeeping rule and provides links to more detailed guidance. The questions and answers in the Additional guidance portion of this document do not themselves impose enforceable recordkeeping or reporting obligations; such obligations are imposed only by the regulation.
OSHA has developed additional guidance to help employers comply with the recordkeeping requirements. The following table of contents provides links to additional guidance, or, if additional guidance has not been developed, to the regulation.
The OSH Act of 1970 requires the Secretary of Labor to produce regulations that require employers to keep records of occupational deaths, injuries, and illnesses. The records are used for several purposes. Injury and illness statistics are used by OSHA. OSHA collects data through the OSHA Data Initiative (ODI) to help direct its programs and measure its own performance. Inspectors also use the data during inspections to help direct their efforts to the hazards that are hurting workers. The records are also used by employers and employees to implement safety and health programs at individual workplaces. Analysis of the data is a widely recognized method for discovering workplace safety and health problems and for tracking progress in solving those problems. The records provide the base data for the BLS Annual Survey of Occupational Injuries and Illnesses, the Nation's primary source of occupational injury and illness data.
The purpose section of the rule includes a note to make it clear that recording an injury or illness neither affects a person's entitlement to workers' compensation nor proves a violation of an OSHA rule. The rules for compensability under workers' compensation differ from state to state and do not have any effect on whether or not a case needs to be recorded on the OSHA 300 Log. Many cases will be OSHA recordable and compensable under workers' compensation. However, some cases will be compensable but not OSHA recordable, and some cases will be OSHA recordable but not compensable under workers' compensation.
The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording and Reporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerpts represent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).
Subpart A. Purpose
The Purpose section of the final rule explains why OSHA is promulgating this rule. The Purpose section contains no regulatory requirements and is intended merely to provide information. A Note to this section informs employers and employees that recording a case on the OSHA recordkeeping forms does not indicate either that the employer or the employee was at fault in the incident or that an OSHA rule has been violated. Recording an injury or illness on the Log also does not, in and of itself, indicate that the case qualifies for workers' compensation or other benefits. Although any specific work-related injury or illness may involve some or all of these factors, the record made of that injury or illness on the OSHA recordkeeping forms only shows three things: (1) that an injury or illness has occurred; (2) that the employer has determined that the case is work-related (using OSHA's definition of that term); and (3) that the case is non-minor, i.e., that it meets one or more of the OSHA injury and illness recording criteria...
Many cases that are recorded in the OSHA system are also compensable under the State workers' compensation system, but many others are not. However, the two systems have different purposes and scopes. The OSHA recordkeeping system is intended to collect, compile and analyze uniform and consistent nationwide data on occupational injuries and illnesses. The workers' compensation system, in contrast, is not designed primarily to generate and collect data but is intended primarily to provide medical coverage and compensation for workers who are killed, injured or made ill at work, and varies in coverage from one State to another...
As a result of these differences between the two systems, recording a case does not mean that the case is compensable, or vice versa. When an injury or illness occurs to an employee, the employer must independently analyze the case in light of both the OSHA recording criteria and the requirements of the State workers' compensation system to determine whether the case is recordable or compensable, or both...
The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording and Reporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerpts represent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).
Section 1904.1 Partial exemption for employers with 10 or fewer employees
The Size-Based Exemption in the Former Rule
The original OSHA injury and illness recording and reporting rule issued in July 1971 required all employers covered by the OSH Act to maintain injury and illness records. In October 1972, an exemption from most of the recordkeeping requirements was put in place for employers with seven or fewer employees. In 1977, OSHA amended the rule to exempt employers with 10 or fewer employees, and that exemption has continued in effect to this day...
The Size-Based Exemption in the Final Rule
...Under the final rule (and the former rule), an employer in any industry who employed no more than 10 employees at any time during the preceding calendar year is not required to maintain OSHA records of occupational illnesses and injuries during the current year unless requested to do so in writing by OSHA (under Section 1904.41) or the BLS (under Section 1904.42). If an employer employed 11 or more people at a given time during the year, how-ever, that employer is not eligible for the size-based partial exemption...
... [U]nder the 10 or fewer employee partial exemption threshold, more than 80% of employers in OSHA's jurisdiction are exempted from routinely keeping records...
...[T]he final rule clarifies that the 10 or fewer size exemption is applicable only if the employer had fewer than 11 employees at all times during the previous calendar year. Thus, if an employer employs 11 or more people at any given time during that year, the employer is not eligible for the small employer exemption in the following year. This total includes all workers employed by the business. All individuals who are "employees" under the OSH Act are counted in the total; the count includes all full time, part time, temporary, and seasonal employees. For businesses that are sole proprietorships or partnerships, the owners and partners would not be considered employees and would not be counted. Similarly, for family farms, family members are not counted as employees. However, in a corporation, corporate officers who receive payment for their services are considered employees. [See Section 1904.31, Covered Employees.]
Consistent with the former rule, the final rule applies the size exemption based on the total number of employees in the firm, rather than the number of employees at any particular location or establishment...because the resources available in a given business depend on the size of the firm as a whole, not on the size of individual establishments owned by the firm. In addition, the analysis of injury records should be of value to the firm as a whole, regardless of the size of individual establishments. Further, an exemption based on individual establishments would be difficult to administer, especially in cases where an individual employee, such as a maintenance worker, regularly reports to work at several establishments.
You can determine your NAICS code by using one of four methods:
States with OSHA-approved plans may require employers to keep records for the State, even though those employers are within an industry exempted by the Federal rule.
The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording and Reporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerpts represent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).
Section 1904.3 Recordkeeping under the requirements of other Federal agencies
Section 1904.3 of the final rule provides guidance for employers who are subject to the occupational injury and illness recording and reporting requirements of other Federal agencies. Several other Federal agencies have similar requirements, such as the Mine Safety and Health Administration (MSHA), the Department of Energy (DOE), and the Federal Railroad Administration (FRA). The final rule at section 1904.3 tells the employer that OSHA will accept these records in place of the employer's Part 1904 records under two circumstances: (1) if OSHA has entered into a memorandum of understanding (MOU) with that agency that specifically accepts the other agency's records, the employer may use them in place of the OSHA records, or (2) if the other agency's records include the same information required by Part 1904, OSHA would consider them an acceptable substitute.
No. In determining whether a case is recordable, the employer must first decide whether an injury or illness, as defined by the rule, has occurred. If the employer is uncertain about whether an injury or illness has occurred, the employer may refer the employee to a physician or other health care professional for evaluation and may consider the health care professional's opinion in determining whether an injury or illness exists. [Note: If a physician or other licensed health care professional diagnoses a significant injury or illness within the meaning of §1904.7(b)(7) and the employer determines that the case is work-related, the case must be recorded.]
Section 1904.4 Recording Criteria
Section 1904.4 of the final rule contains provisions mandating the recording of work-related injuries and illnesses that must be entered on the OSHA 300 (Log) and 301 (Incident Report) forms. It sets out the recording requirements that employers are required to follow in recording cases.
Paragraph 1904.4(a) of the final rule mandates that each employer who is required by OSHA to keep records must record each fatality, injury or illness that is work-related, is a new case and not a continuation of an old case, and meets one or more of the general recording criteria in section 1904.7 or the additional criteria for specific cases found in sections 1904.8 through 1904.11. Paragraph (b) contains provisions implementing this basic requirement.
Paragraph 1904.4(b)(1) contains a table that points employers and their recordkeepers to the various sections of the rule that determine which work-related injuries and illnesses are to be recorded. These sections lay out the requirements for determining whether an injury or illness is work-related, if it is a new case, and if it meets one or more of the general recording criteria. In addition, the table contains a row addressing the application of these and additional criteria to specific kinds of cases (needlestick and sharps injury cases, tuberculosis cases, hearing loss cases, medical removal cases, and musculoskeletal disorder cases). The table in paragraph 1904.4(b)(1) is intended to guide employers through the recording process and to act as a table of contents to the sections of Subpart C.
Paragraph (b)(2) is a decision tree, or flowchart, that shows the steps involved in determining whether or not a particular injury or illness case must be recorded on the OSHA forms. It essentially reflects the same information as is in the table in paragraph 1904.4(b)(1), except that it presents this information graphically.
Yes, the case is work-related because the employee is injured as a result of conducting company business in the work environment. If the injury meets the general recording criteria of Section 1904.7 (death, days away, etc.), the case must be recorded.
The Recordkeeping rule contains no general exception, for purposes of determining work-relationship, for cases involving acts of violence in the work environment. However, some cases involving violent acts might be included within one of the exceptions listed in section 1904.5(b)(2). For example, if an employee arrives at work early to use a company conference room for a civic club meeting and is injured by some violent act, the case would not be work-related under the exception in section 1904.5(b)(2)(v).
Personal grooming activities are activities directly related to personal hygiene, such as combing and drying hair, brushing teeth, clipping fingernails and the like. Bathing or showering at the workplace when necessary because of an exposure to a substance at work is not within the personal grooming exception in section 1904.5(b)(2)(vi). Thus, if an employee slips and falls while showering at work to remove a contaminant to which he has been exposed at work, and sustains an injury that meets one of the general recording criteria listed in section 1904.7(b)(1), the case is recordable.
"Assigned working hours," for purposes of section 1904.5(b)(2)(v), means those hours the employee is actually expected to work, including overtime.
"Personal tasks" for purposes of section 1904.5(b)(2)(v) are tasks that are unrelated to the employee's job. For example, if an employee uses a company break area to work on his child's science project, he is engaged in a personal task.
Question 5-6. If an employee stays at work after normal work hours to prepare for the next day's tasks and is injured, is the case work-related? For example, if an employee stays after work to prepare air-sampling pumps and is injured, is the case work-related?
A case is work-related any time an event or exposure in the work environment either causes or contributes to an injury or illness or significantly aggravates a pre-existing injury or illness, unless one of the exceptions in section 1904.5(b)(2) applies. The work environment includes the establishment and other locations where one or more employees are working or are present as a condition of their employment. The case in question would be work-related if the employee was injured as a result of an event or exposure at work, regardless of whether the injury occurred after normal work hours.
No. Injuries and illnesses occurring in the home environment are only considered work-related if the employee is being paid or compensated for working at home and the injury or illness is directly related to the performance of the work rather than to the general home environment.
Question 5-8. If an employee's pre-existing medical condition causes an incident which results in a subsequent injury, is the case work-related? For example, if an employee suffers an epileptic seizure, falls, and breaks his arm, is the case covered by the exception in section 1904.5(b)(2)(ii)?
Neither the seizures nor the broken arm are recordable. Injuries and illnesses that result solely from non-work-related events or exposures are not recordable under the exception in section 1904.5(b)(2)(ii). Epileptic seizures are a symptom of a disease of non-occupational origin, and the fact that they occur at work does not make them work-related. Because epileptic seizures are not work-related, injuries resulting solely from the seizures, such as the broken arm in the case in question, are not recordable.
Question 5-9. This question involves the following sequence of events: Employee A drives to work, parks her car in the company parking lot and is walking across the lot when she is struck by a car driven by employee B, who is commuting to work. Both employees are seriously injured in the accident. Is either case work-related?
Neither employee's injuries are recordable. While the employee parking lot is part of the work environment under section 1904.5, injuries occurring there are not work-related if they meet the exception in section 1904.5(b)(2)(vii). Section 1904.5(b)(2)(vii) excepts injuries caused by motor vehicle accidents occurring on the company parking lot while the employee is commuting to and from work. In the case in question, both employees' injuries resulted from a motor vehicle accident in the company parking lot while the employees were commuting. Accordingly, the exception applies.
Question 5-10. How does OSHA define a "company parking lot" for purposes of Recordkeeping?
Company parking lots are part of the employer's premises and therefore part of the establishment. These areas are under the control of the employer, i.e. those parking areas where the employer can limit access (such as parking lots limited to the employer's employees and visitors). On the other hand, a parking area where the employer does not have control (such as a parking lot outside of a building shared by different employers, or a public parking area like those found at a mall or beneath a multi-employer office building) would not be considered part of the employers establishment (except for the owner of the building or mall), and therefore not a company parking lot for purposes of OSHA recordkeeping.
Question 5-11. An employee experienced an injury or illness in the work environment before they had "clocked in" for the day. Is the case considered work related even if that employee was not officially "on the clock" for pay purposes?
Yes. For purposes of OSHA recordkeeping injuries and illnesses occurring in the work environment are considered work-related. Punching in and out with a time clock (or signing in and out) does not affect the outcome for determining work-relatedness. If the employee experienced a work-related injury or illness, and it meets one or more of the general recording criteria under section 1904.7, it must be entered on the employer's OSHA 300 log.
Question 5-12. Is work-related stress recordable as a mental illness case?
Mental illnesses, such as depression or anxiety disorder, that have work-related stress as a contributing factor, are recordable if the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related, and the case meets one or more of the general recording criteria. See sections 1904.5(b)(2)(ix) and 1904.7.
Question 5-13. If an employee dies or is injured or infected as a result of terrorist attacks, should it be recorded on the OSHA Injury and Illness Log? Should it be reported to OSHA?
Yes, injuries and illnesses that result from a terrorist event or exposure in the work environment are considered work-related for OSHA recordkeeping purposes. OSHA does not provide an exclusion for violence-related injury and illness cases, including injuries and illnesses resulting from terrorist attacks.
Employers must report to OSHA work-related fatalities within 8 hours and work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours. You can report to OSHA by calling OSHA’s free and confidential number at 1-800-321-OSHA (6742), by calling your closest Area Office during normal business hours, or by using the new online form that will soon be available.
Section 1904.5 Determination of work-relatedness
This section of the final rule sets out the requirements employers must follow in determining whether a given injury or illness is work-related. Paragraph 1904.5(a) states that an injury or illness must be considered work-related if an event or exposure in the work environment caused or contributed to the injury or illness or significantly aggravated a pre-existing injury or illness. It stipulates that, for OSHA recordkeeping purposes, work relationship is presumed for such injuries and illnesses unless an exception listed in paragraph 1904.5(b)(2) specifically applies.
Implementation requirements are set forth in paragraph (b) of the final rule. Paragraph (b)(1) defines "work environment" for recordkeeping purposes and makes clear that the work environment includes the physical locations where employees are working as well as the equipment and materials used by the employee to perform work.
Paragraph (b)(2) lists the exceptions to the presumption of work-relatedness permitted by the final rule; cases meeting the conditions of any of the listed exceptions are not considered work-related and are therefore not recordable in the OSHA recordkeeping system.
Section 8(c)(2) of the OSH Act directs the Secretary to issue regulations requiring employers to record "work-related" injuries and illnesses. It is implicit in this wording that there must be a causal connection between the employment and the injury or illness before the case is recordable. For most types of industrial accidents involving traumatic injuries, such as amputations, fractures, burns and electrocutions, a causal connection is easily determined because the injury arises from forces, equipment, activities, or conditions inherent in the employment environment. Thus, there is general agreement that when an employee is struck by or caught in moving machinery, or is crushed in a construction cave-in, the case is work-related. It is also accepted that a variety of illnesses are associated with exposure to toxic substances, such as lead and cadmium, used in industrial processes. Accordingly, there is little question that cases of lead or cadmium poisoning are work-related if the employee is exposed to these substances at work.
On the other hand, a number of injuries and illnesses that occur, or manifest themselves, at work are caused by a combination of occupational factors, such as performing job-related bending and lifting motions, and factors personal to the employee, such as the effects of a pre-existing medical condition. In many such cases, it is likely that occupational factors have played a tangible role in causing the injury or illness, but one that cannot be readily quantified as "significant" or "predominant" in comparison with the personal factors involved.
Injuries and illnesses also occur at work that do not have a clear connection to a specific work activity, condition, or substance that is peculiar to the employment environment. For example, an employee may trip for no apparent reason while walking across a level factory floor; be sexually assaulted by a co-worker; or be injured accidentally as a result of an act of violence perpetrated by one co-worker against a third party. In these and similar cases, the employee's job-related tasks or exposures did not create or contribute to the risk that such an injury would occur. Instead, a causal connection is established by the fact that the injury would not have occurred but for the conditions and obligations of employment that placed the employee in the position in which he or she was injured or made ill.
The final rule's test for work-relationship and its similarity to the former and proposed rules. -- The final rule requires that employers consider an injury or illness to be "work-related" if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Section 1904.5(b)(2) specifically applies.
Under paragraph 1904.5(b)(1), the "work environment" means "the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical locations, but also equipment or materials used by the employee during the course of his or her work."...
Who Makes the Determination?
...OSHA has concluded that requiring employers to rely on a health care professional for the determination of the work-relatedness of occupational injuries and illnesses would be burdensome, impractical, and unnecessary. Small employers, in particular, would be burdened by such a provision. Further, if the professional is not familiar with the injured worker's job duties and work environment, he or she will not have sufficient information to make a decision about the work-relatedness of the case. OSHA also does not agree that health care professional involvement is necessary in the overwhelming majority of cases. Employers have been making work-relatedness determinations for more than 20 years and have performed this responsibility well in that time. This does not mean that employers may not, if they choose, seek the advice of a physician or other licensed health care professional to help them understand the link between workplace factors and injuries and illnesses in particular cases; it simply means that OSHA does not believe that most employers will need to avail themselves of the services of such a professional in most cases.
Accordingly, OSHA has concluded that the determination of work-relatedness is best made by the employer, as it has been in the past. Employers are in the best position to obtain the information, both from the employee and the workplace, that is necessary to make this determination. Although expert advice may occasionally be sought by employers in particularly complex cases, the final rule provides that the determination of work-relatedness ultimately rests with the employer.
The Final Rule's Exceptions to the Geographic Presumption
Paragraph 1904.5(b)(2) of the final rule contains eight exceptions to the work environment presumption that are intended to exclude from the recordkeeping system those injuries and illnesses that occur or manifest in the work environment, but have been identified by OSHA, based on its years of experience with recordkeeping, as cases that do not provide information useful to the identification of occupational injuries and illnesses and would thus tend to skew national injury and illness statistics. These eight exceptions are the only exceptions to the presumption permitted by the final rule.
(i) Injuries or illnesses will not be considered work-related if, at the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee.
This exception, which is codified at paragraph 1904.5(b)(2)(i), is based on the fact that no employment relationship is in place at the time an injury or illness of this type occurs. A case exemplifying this exception would occur if an employee of a retail store patronized that store as a customer on a non-work day and was injured in a fall. This exception allows the employer not to record cases that occur outside of the employment relationship when his or her establishment is also a public place and a worker happens to be using the facility as a member of the general public. In these situations, the injury or illness has nothing to do with the employee's work or the employee's status as an employee, and it would therefore be inappropriate for the recordkeeping system to capture the case...
(ii) Injuries or illnesses will not be considered work-related if they involve symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.
OSHA's recordkeeping system is intended only to capture cases that are caused by conditions or exposures arising in the work environment. It is not designed to capture cases that have no relationship with the work environment. For this exception to apply, the work environment cannot have caused, contributed to, or significantly aggravated the injury or illness. This exception is consistent with the position followed by OSHA for many years and reiterated in the final rule: that any job-related contribution to the injury or illness makes the incident work-related, and its corollary--that any injury or illness to which work makes no actual contribution is not work-related. An example of this type of injury would be a diabetic incident that occurs while an employee is working. Because no event or exposure at work contributed in any way to the diabetic incident, the case is not recordable. This exception allows the employer to exclude cases where an employee's non-work activities are the sole cause of the injury or illness...
(iii) Injuries and illnesses will not be considered work-related if they result solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical, flu shot, exercise classes, racquetball, or baseball.
This exception allows the employer to exclude certain injury or illness cases that are related to personal medical care, physical fitness activities and voluntary blood donations. The key words here are "solely" and "voluntary." The work environment cannot have contributed to the injury or illness in any way for this exception to apply, and participation in the wellness, fitness or recreational activities must be voluntary and not a condition of employment.
This exception allows the employer to exclude cases that are related to personal matters of exercise, recreation, medical examinations or participation in blood donation programs when they are voluntary and are not being undertaken as a condition of work. For example, if a clerical worker was injured while performing aerobics in the company gymnasium during his or her lunch hour, the case would not be work-related. On the other hand, if an employee who was assigned to manage the gymnasium was injured while teaching an aerobics class, the injury would be work-related because the employee was working at the time of the injury and the activity was not voluntary. Similarly, if an employee suffered a severe reaction to a flu shot that was administered as part of a voluntary inoculation program, the case would not be considered work-related; however, if an employee suffered a reaction to medications administered to enable the employee to travel overseas on business, or the employee had an illness reaction to a medication administered to treat a work-related injury, the case would be considered work-related...
(iv) Injuries and illnesses will not be considered work-related if they are solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the premises or brought in).
An example of the application of this exception would be a case where the employee injured himself or herself by choking on a sandwich brought from home but eaten in the employer's establishment; such a case would not be considered work-related under this exception. On the other hand, if the employee was injured by a trip or fall hazard present in the employer's lunchroom, the case would be considered work-related. In addition, a note to the exception makes clear that if an employee becomes ill as a result of ingesting food contaminated by workplace contaminants such as lead, or contracts food poisoning from food items provided by the employer, the case would be considered work-related. As a result, if an employee contracts food poisoning from a sandwich brought from home or purchased in the company cafeteria and must take time off to recover, the case is not considered work related. On the other hand, if an employee contracts food poisoning from a meal provided by the employer at a business meeting or company function and takes time off to recover, the case would be considered work related. Food provided or supplied by the employer does not include food purchased by the employee from the company cafeteria, but does include food purchased by the employer from the company cafeteria for business meetings or other company functions.
(v) Injuries and illnesses will not be considered work-related if they are solely the result of employees doing personal tasks (unrelated to their employment) at the establishment outside of their assigned working hours.
This exception, which responds to inquiries received over the years, allows employers limited flexibility to exclude from the recordkeeping system situations where the employee is using the employer's establishment for purely personal reasons during his or her off-shift time. For example, if an employee were using a meeting room at the employer's establishment outside of his or her assigned working hours to hold a meeting for a civic group to which he or she belonged, and slipped and fell in the hallway, the injury would not be considered work-related. On the other hand, if the employee were at the employer's establishment outside his or her assigned working hours to attend a company business meeting or a company training session, such a slip or fall would be work-related.
(vi) Injuries and illnesses will not be considered work-related if they are solely the result of personal grooming, self-medication for a non-work-related condition, or are intentionally self-inflicted.
This exception allows the employer to exclude from the Log cases related to personal hygiene, self-administered medications and intentional self-inflicted injuries, such as attempted suicide. For example, a burn injury from a hair dryer used at work to dry the employee's hair would not be work-related. Similarly, a negative reaction to a medication brought from home to treat a non-work condition would not be considered a work-related illness, even though it first manifested at work.
(vii) Injuries will not be considered work-related if they are caused by motor vehicle accidents occurring in company parking lots or on company access roads while employees are commuting to or from work.
This exception allows the employer to exclude cases where an employee is injured in a motor vehicle accident while commuting from work to home or from home to work or while on a personal errand. For example, if an employee was injured in a car accident while arriving at work or while leaving the company's property at the end of the day, or while driving on his or her lunch hour to run an errand, the case would not be considered work-related. On the other hand, if an employee was injured in a car accident while leaving the property to purchase supplies for the employer, the case would be work-related. Some injuries and illnesses that occur in company parking lots are clearly caused by work conditions or activities -- e.g., being struck by a car while painting parking space indicators on the pavement of the lot, slipping on ice permitted to accumulate in the lot by the employer -- and by their nature point to conditions that could be corrected to improve workplace safety and health.
(viii) Common colds and flu will not be considered work-related.
Paragraph 1904.5(b)(2)(viii) allows the employer to exclude cases of common cold or flu, even if contracted while the employee was at work. However, in the case of other infectious diseases such as tuberculosis, brucellosis, and hepatitis C, employers must evaluate reports of such illnesses for work relationship, just as they would any other type of injury or illness.
(ix) Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related.
Recording work-related mental illnesses involves several unique issues, including the difficulty of detecting, diagnosing and verifying mental illnesses; and the sensitivity and privacy concerns raised by mental illnesses. Therefore, the final rule requires employers to record only those mental illnesses verified by a health care professional with appropriate training and experience in the treatment of mental illness, such as a psychiatrist, psychologist, or psychiatric nurse practitioner. The employer is under no obligation to seek out information on mental illnesses from its employees, and employers are required to consider mental illness cases only when an employee voluntarily presents the employer with an opinion from the health care professional that the employee has a mental illness and that it is work related. In the event that the employer does not believe the reported mental illness is work-related, the employer may refer the case to a physician or other licensed health care professional for a second opinion. OSHA also emphasizes that work-related mental illnesses, like other illnesses, must be recorded only when they meet the severity criteria outlined in Section 1904.7. In addition, for mental illnesses, the employee's identity must be protected by omitting the employee's name from the OSHA 300 Log and instead entering "privacy concern case" as required by Section 1904.29.
Proposed Exception... The Case Results Solely From Normal Body Movements, not Job-Related Motions or Contribution from the Work Environment.
...OSHA has decided not to include a recordkeeping exception for injuries or illnesses associated with normal body movements in the final rule...Further, the final rule already makes clear that injuries and illnesses that result solely from non-work causes are not considered work-related and therefore are excluded from the Log, and establishes the requirements employers must follow to determine work-relationship for an injury or illness when it is unclear whether the precipitating event occurred in the workplace or elsewhere (see paragraph 1904.5(b)(3)). According to the requirements in that section, the employer must evaluate the employee's work duties and the work environment to decide whether it is more likely than not that events or exposures in the work environment either caused or contributed to the condition or significantly aggravated a pre-existing condition. If so, the case is work-related.
Additional Exceptions Suggested by Commenters but Not Adopted [in the final rule].
...Acts of God:... OSHA has not adopted such an exception because doing so would not be in keeping with the geographic presumption underpinning this final rule, and would exclude cases that are in fact work-related. For example, if a worker was injured in a flood while at work, the case would be work-related, even though the flood could be considered an act of God. Accordingly, if workplace injuries and illnesses result from these events, they must be entered into the records (for a more detailed discussion of this point, see the Legal Authority section, above).
Phobias:... OSHA has not included an exception from recording in the final recordkeeping regulation for phobias or any other type of mental illness. Voluntary participation in a medical activity. OSHA also believes that it would be unreasonable to omit a case of loss of consciousness resulting from the administration of a blood test for lead exposure at work. These tests are necessitated by the employee's exposure to lead at work and are required by OSHA's lead standard (29 CFR 1910.1025). The other scenarios presented by these commenters, involving spiders, snakes, etc., would also be work-related under the geographic presumption.
Illegal activities and horseplay:... OSHA has not adopted any of these recommended exceptions in the final recordkeeping rule because excluding these injuries and illnesses would be inconsistent with OSHA's longstanding reliance on the geographic presumption to establish work-relatedness. Furthermore, the Agency believes that many of the working conditions pointed to in these comments involve occupational factors, such as the effectiveness of disciplinary policies and supervision. Thus, recording such incidents may serve to alert both the employer and employees to workplace safety and health issues.
Non-occupational degenerative conditions:... such as high blood pressure, arthritis, coronary artery disease, heart attacks, and cancer that can develop regardless of workplace exposure. OSHA has not added such an exception to the rule, but the Agency believes that the fact that the rule expects employers confronted with such cases to make a determination about the extent to which, if at all, work contributed to the observed condition will provide direction about how to determine the work-relatedness of such cases. For example, if work contributes to the illness in some way, then it is work-related and must be evaluated for its recordability. On the other hand, if the case is wholly caused by non-work factors, then it is not work-related and will not be recorded in the OSHA records.
Determining Whether the Precipitating Event or Exposure Occurred in the Work Environment or Elsewhere
Paragraph 1904.5(b)(3) of the final rule provides guidance on applying the geographic presumption when it is not clear whether the event or exposure that precipitated the injury or illness occurred in the work environment or elsewhere. If an employee reports pain and swelling in a joint but cannot say whether the symptoms first arose during work or during recreational activities at home, it may be difficult for the employer to decide whether the case is work-related. The same problem arises when an employee reports symptoms of a contagious disease that affects the public at large, such as a staphylococcus infection ("staph" infection) or Lyme disease, and the workplace is only one possible source of the infection. In these situations, the employer must examine the employee's work duties and environment to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the condition. If the employer determines that it is unlikely that the precipitating event or exposure occurred in the work environment, the employer would not record the case. In the staph infection example given above, the employer would consider the case work-related, for example, if another employee with whom the newly infected employee had contact at work had been out with a staph infection. In the Lyme disease example, the employer would determine the case to be work-related if, for example, the employee was a groundskeeper with regular exposure to outdoor conditions likely to result in contact with deer ticks.
In applying paragraph 1904.5(b)(3), the question employers must answer is whether the precipitating event or exposure occurred in the work environment. If an event, such as a fall, an awkward motion or lift, an assault, or an instance of horseplay, occurs at work, the geographic presumption applies and the case is work-related unless it otherwise falls within an exception. Thus, if an employee trips while walking across a level factory floor, the resulting injury is considered work-related under the geographic presumption because the precipitating event -- the tripping accident -- occurred in the workplace. The case is work-related even if the employer cannot determine why the employee tripped, or whether any particular workplace hazard caused the accident to occur. However, if the employee reports an injury at work but cannot say whether it resulted from an event that occurred at work or at home, as in the example of the swollen joint, the employer might determine that the case is not work-related because the employee's work duties were unlikely to have caused, contributed to, or significantly aggravated such an injury.
Significant Workplace Aggravation of a Pre-existing Condition
In paragraph 1904.5(b)(4), the final rule...requires that the amount of aggravation of the injury or illness that work contributes must be "significant," i.e., non-minor, before work-relatedness is established. The preexisting injury or illness must be one caused entirely by non-occupational factors...
OSHA agrees that non-work-related injuries and illnesses should not be recorded on the OSHA Log. To ensure that non-work-related cases are not entered on the Log, paragraph 1904.5(b)(2)(ii) requires employers to consider as non-work-related any injury or illness that "involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment."
The Agency also believes that preexisting injury or illness cases that have been aggravated by events or exposures in the work environment represent cases that should be recorded on the Log, because work has clearly worsened the injury or illness. OSHA is concerned, however, that there are some cases where work-related aggravation affects the preexisting case only in a minor way, i.e., in a way that does not appreciably worsen the preexisting condition, alter its nature, change the extent of the medical treatment, trigger lost time, or require job transfer. Accordingly, the final rule requires that workplace events or exposures must "significantly" aggravate a pre-existing injury or illness case before the case is presumed to be work-related. Paragraph 1904.5(a) states that an injury or illness is considered work-related if "an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness."
Paragraph 1904.5(b)(4) of the final rule defines aggravation as significant if the contribution of the aggravation at work is such that it results in tangible consequences that go beyond those that the worker would have experienced as a result of the preexisting injury or illness alone, absent the aggravating effects of the workplace. Under the final rule, a preexisting injury or illness will be considered to have been significantly aggravated, for the purposes of OSHA injury and illness recordkeeping, when an event or exposure in the work environment results in: (i) Death, providing that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure; (ii) Loss of consciousness, providing that the preexisting injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure; (iii) A day or days away from work or of restricted work, or a job transfer that otherwise would not have occurred but for the occupational event or exposure; or (iv) Medical treatment where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in the course of medical treatment that was being provided before the workplace event or exposure. OSHA's decision not to require the recording of cases involving only minor aggravation of preexisting conditions is consistent with the Agency's efforts in this rulemaking to require the recording only of non-minor injuries and illnesses; for example, the final rule also no longer requires employers to record minor illnesses on the Log.
Paragraph 1904.5(b)(5) stipulates that pre-existing conditions, for recordkeeping purposes, are conditions that resulted solely from a non-work-related event or exposure that occurs outside the employer's work environment. Pre-existing conditions also include any injury or illness that the employee experienced while working for another employer.
Off Premises Determinations
...In the final rule, (paragraph 1904.5(b)(1)) the same concept is carried forward in the definition of the work environment, which defines the environment as including the establishment and any other location where one or more employees are working or are present as a condition of their employment.
Thus, when employees are working or conducting other tasks in the interest of their employer but at a location away from the employer's establishment, the work-relatedness of an injury or illness that arises is subject to the same decision making process that would occur if the case had occurred at the establishment itself. The case is work-related if one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition, as stated in paragraph 1904.5(a). In addition, the exceptions for determining work relationship at paragraph 1904.5(b)(2) and the requirements at paragraph 1904.5(b)(3) apply equally to cases that occur at or away from the establishment.
As an example, the work-environment presumption clearly applies to the case of a delivery driver who experiences an injury to his or her back while loading boxes and transporting them into a building. The worker is engaged in a work activity and the injury resulted from an event -- loading/unloading -- occurring in the work environment. Similarly, if an employee is injured in an automobile accident while running errands for the company or traveling to make a speech on behalf of the company, the employee is present at the scene as a condition of employment, and any resulting injury would be work-related.
Employees on Travel Status
The final rule continues (at Section 1904.5(b)(6)) OSHA's longstanding practice of treating injuries and illnesses that occur to an employee on travel status as work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained if the activity is conducted at the direction of the employer.
The final rule contains three exceptions for travel-status situations. The rule describes situations in which injuries or illnesses sustained by traveling employees are not considered work-related for OSHA recordkeeping purposes and therefore do not have to be recorded on the OSHA 300 Log. First, when a traveling employee checks into a hotel, motel, or other temporary residence, he or she is considered to have established a "home away from home." At this time, the status of the employee is the same as that of an employee working at an establishment who leaves work and is essentially "at home." Injuries and illnesses that occur at home are generally not considered work related. However, just as an employer may sometimes be required to record an injury or illness occurring to an employee working in his or her home, the employer is required to record an injury or illness occurring to an employee who is working in his or her hotel room (see the discussion of working at home, below).
Second, if an employee has established a "home away from home" and is reporting to a fixed worksite each day, the employer does not consider injuries or illnesses work-related if they occur while the employee is commuting between the temporary residence and the job location. These cases are parallel to those involving employees commuting to and from work when they are at their home location, and do not have to be recorded, just as injuries and illnesses that occur during normal commuting are not required to be recorded.
Third, the employer is not required to consider an injury or illness to be work-related if it occurs while the employee is on a personal detour from the route of business travel. This exception allows the employer to exclude injuries and illnesses that occur when the worker has taken a side trip for personal reasons while on a business trip, such as a vacation or sight-seeing excursion, to visit relatives, or for some other personal purpose...
OSHA has decided not to limit the recording of occupational injuries and illnesses to those cases that are preventable, fall within the employer's control, or are covered by the employer's safety and health program. The issue is not whether the conditions could have, or should have, been prevented or whether they were controllable, but simply whether they are occupational,i.e., are related to work. This is true regardless of whether the employee is injured while on travel or while present at the employer's workplace. An employee who is injured in an automobile accident or killed in an airline crash while traveling for the company has clearly experienced a work-related injury that is rightfully included in the OSHA injury and illness records and the Nation's occupational injury and illness statistics...
...[T]he Agency believes that employees who are engaged in management, sales, customer service and similar jobs must often entertain clients, and that doing so is a business activity that requires the employee to work at the direction of the employer while conducting such tasks. If the employee is injured or becomes ill while engaged in such work, the injury or illness is work-related and should be recorded if it meets one or more of the other criteria (death, medical treatment, etc.). Gastroenteritis, for example...is one type of injury or illness that may occur in this situation, but employees are also injured in accidents while transporting clients to business-related events at the direction of the employer or by other events or exposures arising in the work environment.
On the other hand, not all injuries and illnesses sustained in the course of business-related entertainment are reportable. To be recordable, the entertainment activity must be one that the employee engages in at the direction of the employer. Business-related entertainment activities that are undertaken voluntarily by an employee in the exercise of his or her discretion are not covered by the rule. For example, if an employee attending a professional conference at the direction of the employer goes out for an evening of entertainment with friends, some of whom happen to be clients or customers, any injury or illness resulting from the entertainment activities would not be recordable. In this case, the employee was socializing after work, not entertaining at the direction of the employer. Similarly, the fact that an employee joins a private club or organization, perhaps to "network" or make business contacts, does not make any injury that occurs there work-related...
...OSHA notes that the recordkeeping regulation does not apply to travel outside the United States because the OSH Act applies only to the confines of the United States (29 U.S.C. Section 652(4)) and not to foreign operations. Therefore, the OSHA recordkeeping regulation does not apply to non-U.S. operations, and injuries or illnesses that may occur to a worker traveling outside the United States need not be recorded on the OSHA 300 Log.
Working at Home
The final rule also includes provisions at Section 1904.5(b)(7) for determining the work-relatedness of injuries and illnesses that may arise when employees are working at home. When an employee is working on company business in his or her home and reports an injury or illness to his or her employer, and the employee's work activities caused or contributed to the injury or illness, or significantly aggravated a pre-existing injury, the case is considered work-related and must be further evaluated to determine whether it meets the recording criteria. If the injury or illness is related to non-work activities or to the general home environment, the case is not considered work-related.
The final rule includes examples to illustrate how employers are required to record injuries and illnesses occurring at home. If an employee drops a box of work documents and injures his or her foot, the case would be considered work-related. If an employee's fingernail was punctured and became infected by a needle from a sewing machine used to perform garment work at home, the injury would be considered work-related. If an employee was injured because he or she tripped on the family dog while rushing to answer a work phone call, the case would not be considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury would not be considered work-related...
...Injuries and illnesses occurring while the employee is working for pay or compensation at home should be treated like injuries and illnesses sustained by employees while traveling on business. The relevant question is whether or not the injury or illness is work-related, not whether there is some element of employer control. The mere recording of these injuries and illnesses as work-related cases does not place the employer in the role of insuring the safety of the home environment...
...OSHA has recently issued a compliance directive (CPL 2-0.125)...That document clarifies that OSHA will not conduct inspections of home offices and does not hold employers liable for employees' home offices. The compliance directive also notes that employers required by the recordkeeping rule to keep records "will continue to be responsible for keeping such records, regardless of whether the injuries occur in the factory, in a home office, or elsewhere, as long as they are work-related, and meet the recordability criteria of 29 CFR Part 1904."
With more employees working at home under various telecommuting and flexible workplace arrangements, OSHA believes that it is important to record injuries and illnesses attributable to work tasks performed at home. If these cases are not recorded, the Nation's injury and illness statistics could be skewed. For example, placing such an exclusion in the final rule would make it difficult to determine if a decline in the overall number or rate of occupational injuries and illnesses is attributable to a trend toward working at home or to a change in the Nation's actual injury and illness experience. Further, excluding these work-related injuries and illnesses from the recordkeeping system could potentially obscure previously unidentified causal connections between events or exposures in the work environment and these incidents.
Question 6-1. How is an employer to determine whether an employee has "recovered completely" from a previous injury or illness such that a later injury or illness of the same type affecting the same part of the body resulting from an event or exposure at work is a "new case" under section 1904.6(a)(2)? If an employee's signs and symptoms disappear for a day and then resurface the next day, should the employer conclude that the later signs and symptoms represent a new case?
An employee has "recovered completely" from a previous injury or illness, for purposes of section 1904.6(a)(2), when he or she is fully healed or cured. The employer must use his best judgment based on factors such as the passage of time since the symptoms last occurred and the physical appearance of the affected part of the body. If the signs and symptoms of a previous injury disappear for a day only to reappear the following day, that is strong evidence the injury has not properly healed. The employer may, but is not required to, consult a physician or other licensed health care provider (PLHCP). Where the employer does consult a PLHCP to determine whether an employee has recovered completely from a prior injury or illness, it must follow the PLHCP's recommendation. In the event the employer receives recommendations from two or more PLHCPs, the employer may decide which recommendation is the most authoritative and record the case based on that recommendation.
Section 1904.6 Determination of new cases
Employers may occasionally have difficulty in determining whether new signs or symptoms are due to a new event or exposure in the workplace or whether they are the continuation of an existing work-related injury or illness. Most occupational injury and illness cases are fairly discrete events, i.e., events in which an injury or acute illness occurs, is treated, and then resolves completely. For example, a worker may suffer a cut, bruise, or rash from a clearly recognized event in the workplace, receive treatment, and recover fully within a few weeks. At some future time, the worker may suffer another cut, bruise or rash from another workplace event. In such cases, it is clear that the two injuries or illnesses are unrelated events, and that each represents an injury or illness that must be separately evaluated for its recordability.
However, it is sometimes difficult to determine whether signs or symptoms are due to a new event or exposure, or are a continuance of an injury or illness that has already been recorded. This is an important distinction, because a new injury or illness requires the employer to make a new entry on the OSHA 300 Log, while a continuation of an old recorded case requires, at most, an updating of the original entry.
The basic requirement at Section 1904.6(a) states that the employer must consider an injury or illness a new case to be evaluated for recordability (1) the employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body, or (2) the employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms of the previous injury or illness had disappeared) and an event or exposure in the work environment caused the injury or illness, or its signs or symptoms, to reappear.
Section 1904.6(b)(1) addresses chronic work-related cases that have already been recorded once and distinguishes between those conditions that will progress even in the absence of workplace exposure and those that are triggered by events in the workplace. There are some conditions that will progress even in the absence of further exposure, such as some occupational cancers, advanced asbestosis, tuberculosis disease, advanced byssinosis, advanced silicosis, etc. These conditions are chronic; once the disease is contracted it may never be cured or completely resolved, and therefore the case is never "closed" under the OSHA recordkeeping system, even though the signs and symptoms of the condition may alternate between remission and active disease.
However, there are other chronic work-related illness conditions, such as occupational asthma, reactive airways dysfunction syndrome (RADs), and sensitization (contact) dermatitis, that recur if the ill individual is exposed to the agent (or agents, in the case of cross-reactivities or RADs) that triggers the illness again. It is typical, but not always the case, for individuals with these conditions to be symptom-free if exposure to the sensitizing or precipitating agent does not occur.
The final rule provides, at paragraph (b)(1), that the employer is not required to record as a new case a previously recorded case of chronic work-related illness where the signs or symptoms have recurred or continued in the absence of exposure in the workplace. This paragraph recognizes that there are occupational illnesses that may be diagnosed at some stage of the disease and may then progress without regard to workplace events or exposures. Such diseases, in other words, will progress without further workplace exposure to the toxic substance(s) that caused the disease. Examples of such chronic work-related diseases are silicosis, tuberculosis, and asbestosis. With these conditions, the ill worker will show signs (such as a positive TB skin test, a positive chest roentgenogram, etc.) at every medical examination, and may experience symptomatic bouts as the disease progresses.
Paragraph 1904.6(b)(2) recognizes that many chronic occupational illnesses, however, such as occupational asthma, RADs, and contact dermatitis, are triggered by exposures in the workplace. The difference between these conditions and those addressed in paragraph 1904.6(b)(1) is that in these cases exposure triggers the recurrence of symptoms and signs, while in the chronic cases covered in the previous paragraph, the symptoms and signs recur even in the absence of exposure in the workplace.
Paragraph 1904.6(b)(3) addresses how to record a case for which the employer requests a physician or other licensed health care professional (HCP) to make a new case/continuation of an old case determination. Paragraph (b)(3) makes clear that employers are to follow the guidance provided by the HCP for OSHA recordkeeping purposes. In cases where two or more HCPs make conflicting or differing recommendations, the employer is required to base his or her decision about recordation based on the most authoritative (best documented, best reasoned, or most persuasive) evidence or recommendation.
OSHA has historically recognized that it is generally an easier matter to differentiate between old and new cases that involve injuries than those involving illnesses: the Guidelines stated that "the aggravation of a previous injury almost always results from some new incident involving the employee * * * [w]hen work-related, these new incidents should be recorded as new cases on the OSHA forms, assuming they meet the criteria for recordability * * *". However, the Guidelines also stated that "certain illnesses, such as silicosis, may have prolonged effects which recur over time. The recurrence of these symptoms should not be recorded as a new case on the OSHA forms. * * * Some occupational illnesses, such as certain dermatitis or respiratory conditions, may recur as the result of new exposures to sensitizing agents, and should be recorded as new cases."...
...In the final rule, OSHA has decided against the proposed approach of determining case resolution based on a certain number of days during which the injured or ill employee did not lose time, receive treatment, have signs or symptoms, or be restricted to light duty. OSHA agrees with those commenters who argued that the proposed approach was too prescriptive and did not allow for the variations that naturally exist from one injury and illness case to the next. Further, the record contains no convincing evidence to support a set number of days as appropriate. OSHA thus agrees with those commenters who pointed out that adoption of a fixed time interval would result in the overrecording of some injury and illness cases and the underrecording of others, and thus would impair the quality of the records.
Further, OSHA did not intend to create an "injury free" time zone during which an injury or illness would not be considered a new case, regardless of cause, as . . . suggested. Instead, OSHA proposed that a case be considered a new case if either condition applied: the case resulted from a new event or exposure or 45 days had elapsed without signs, symptoms, or medical treatment, restricted work, or days away from work. There are clearly cases where an event or exposure in the workplace would be cause for recording a new case. A new injury may manifest the same signs and symptoms as the previous injury but still be a new injury and not a continuation of the old case if, for example, an employee sustains a fall and fractures his or her wrist, and four months later falls again and fractures the wrist in the same place. This occurrence is not a continuation of the fracture but rather a new injury whose recordability must be evaluated. The final rule's approach to recurrence/new case determinations avoids this and other recording problems because it includes no day count limit and relies on one of the basic principles of the recordkeeping system, i.e., that injuries or illnesses arising from events or exposures in the workplace must be evaluated for recordability.
In response to those commenters who raised issues about inconsistency between the OSHA system and workers' compensation, OSHA notes that there is no reason for the two systems, which serve different purposes (recording injuries and illnesses for national statistical purposes and indemnifying workers for job-related injuries and illnesses) to use the same definitions. Accordingly, the final rule does not rely on workers' compensation determinations to identify injuries or illness cases that are to be considered new cases for recordkeeping purposes...
...OSHA has not included any provisions in the final rule that require an employer to rely on a physician or other licensed health care professional or that tell a physician or other licensed health care professional how to treat an injured or ill worker, or when to begin or end such treatment. In the final rule OSHA does require the employer to follow any determination a physician or other licensed health care professional has made about the status of a new case. That is, if such a professional has determined that a case is a new case, the employer must record it as such. If the professional determines that the case is a recurrence, rather than a new case, the employer is not to record it a second time. In addition, the rule does not require the employee, or the employer, to obtain permission from the physician or other licensed health care professional before the employee can return to work. OSHA believes that the employer is capable of, and often in the best position to, make return-to-work decisions...
..."A recurrence of a previous work-related injury or illness should only be considered a new case when the injury or illness has completely healed. Severe muscle and nerve damage can take many weeks or months to properly heal." The final rule takes such differences into account, as follows. If the previous injury or illness has not healed (signs and symptoms have not resolved), then the case cannot be considered resolved. The employer may make this determination or may rely on the recommendation of a physician or other licensed health care professional when doing so. Clearly, if the injured or ill employee is still exhibiting signs or symptoms of the previous injury or illness, the malady has not healed, and a new case does not have to be recorded. Similarly, if work activities aggravate a previously recorded case, there is no need to consider recording it again (although there may be a need to update the case information if the aggravation causes a more severe outcome than the original case, such as days away from work)...
Because the OSHA system is intended to measure the incidence of occupational injury and illness, each individual injury or illness should be recorded only once in the system. However, an employee can experience the same type of injury or illness more than once. For example, if a worker cuts a finger on a machine in March, and is then unfortunate enough to cut the same finger again in October, this worker has clearly experienced two separate occupational injuries, each of which must be evaluated for its recordability. In other cases, this evaluation is not as simple. For example, a worker who performs forceful manual handling injures his or her back in 1998, resulting in days away from work, and the case is entered into the records. In 1999 this worker has another episode of severe work-related back pain and must once again take time off for treatment and recuperation. The question is whether or not the new symptoms, back pain, are continuing symptoms of the old injury, or whether they represent a new injury that should be evaluated for its recordability as a new case. The answer in this case lies in an analysis of whether or not the injured or ill worker has recovered fully between episodes, and whether or not the back pain is the result of a second event or exposure in the workplace, e.g., continued manual handling. If the worker has not fully recovered and no new event or exposure has occurred in the workplace, the case is considered a continuation of the previous injury or illness and is not recordable...
...The term "new case" tends to suggest to some that the case is totally original, when in fact new cases for OSHA recordkeeping purposes include three categories of cases; (1) totally new cases where the employee has never suffered similar signs or symptoms while in the employ of that employer, (2) cases where the employee has a preexisting condition that is significantly aggravated by activities at work and the significant aggravation reaches the level requiring recordation, and (3) previously recorded conditions that have healed (all symptoms and signs have resolved) and then have subsequently been triggered by events or exposures at work.
Both new injuries and recurrences must be evaluated for their work-relatedness and then for whether they meet one or more of the recording criteria; when these criteria are met, the case must be recorded. If the case is a continuation of a previously recorded case but does not meet the "new case" criteria, the employer may have to update the OSHA 300 Log entry if the original case continues to progress, i.e., if the status of the case worsens. For example, consider a case where an employee has injured his or her back lifting a heavy object, the injury resulted in medical treatment, and the case was recorded as a case without restricted work or days away. If the injury does not heal and the employer subsequently decides to assign the worker to restricted work activity, the employer is required by the final rule to change the case classification and to track the number of days of restricted work. If the case is a previous work-related injury that did not meet the recording criteria and thus was not recorded, future developments in the case may require it to be recorded. For example, an employee may suffer an ankle sprain tripping on a step. The employee is sent to a health care professional, who does not recommend medical treatment or restrictions, so the case is not recorded at that time. If the injury does not heal, however, and a subsequent visit to a physician results in medical treatment, the case must then be recorded...
OSHA and employers and employees need data on recurring cases because recurrence is an important indicator of severity over the long term. Just as the number of days away is a useful indicator of health and safety risk at a particular establishment, so is the total number of injury and illness events and of exposures resulting in health consequences that occur in an establishment or industry. Further, any realistic assessment of occupational safety and health conditions should reflect the fact that some but not all injuries and illnesses have long-term consequences.
...In other words, a safety and health analysis should give less weight to an injury or illness that has a clear and relatively quick recovery without impairment of any kind and an injury or illness that is chronic in nature or one that involves recurring episodes that are retriggered by workplace events or exposures.
Ignoring the fact that an occupational injury or illness is a recurrence occasioned by an event or exposure in the workplace would result in an underestimate of the true extent of occupational injury and illness and deprive employers, employees, and safety and health professionals of essential information of use in illness prevention. The other extreme, requiring employers to record on-going signs or symptoms repeatedly, even in the absence of an event or exposure in the workplace, would result in overstating the extent of illness. In terms of the recordkeeping system, deciding how most appropriately to handle new cases requires a balanced approach that minimizes both overrecording and underrecording. OSHA has dealt with this problem in the final rule by carefully defining the circumstances under which a chronic and previously recorded injury or illness must be considered closed and defining the circumstances under which a recurrence is to be considered a new case and then evaluated to determine whether it meets one or more of the recordability criteria...
...The final rule uses one set of criteria for determining whether any injury or illness, including a musculoskeletal disorder, is to be treated as a new case or as the continuation of an "old" injury or illness. First, if the employee has never had a recorded injury or illness of the same type and affecting the same part of the body, the case is automatically considered a new case and must be evaluated for recordability. This provision will handle the vast majority of injury and illness cases, which are new cases rather than recurrences or case continuations. Second, if the employee has previously had a recorded injury or illness of the same type and affecting the same body part, but the employee has completely recovered from the previous injury or illness, and a new workplace event or exposure causes the injury or illness (or its signs or symptoms) to reappear, the case is a recurrence that the employer must evaluate for recordability.
The implementation section of Section 1904.6 describes these requirements and includes explanations applying to two special circumstances. In the first case, paragraph 1904.6(b)(1) the employee has experienced a chronic injury or illness of a type that will progress regardless of further workplace exposure. Cases to which this provision applies are serious, chronic illness conditions such as occupational cancer, asbestosis, silicosis, chronic beryllium disease, etc. These occupational conditions generally continue to progress even though the worker is removed from further exposure. These conditions may change over time and be associated with recurrences of symptoms, or remissions, but the signs (e.g., positive chest roentgenogram, positive blood test) generally continue to be present throughout the course of the disease.
The second kind of case, addressed in paragraph 1904.6(b)(b)(2), requires employers to record chronic illness cases that recur as a result of exposures in the workplace. These conditions might include episodes of occupational asthma, reactive airways dysfunction syndrome (RADS), or contact allergic dermatitis, for example.
Paragraph 1904.6(b)(3) recognizes the role of physicians and other licensed health care professionals that the employer may choose to rely on when tracking a "new case" or making a continuation of an old case determination. If a physician or other licensed health care professional determines that an injury or illness has been resolved, the employer must consider the case to be resolved and record as a new case any episode that causes the signs and symptoms to recur as a result of exposure in the workplace. On the other hand, if the HCP consulted by the employer determines that the case is a chronic illness of the type addressed by paragraph 1904.6(b)(1), the employer would not record the case again. In either case, the employer would evaluate it for work-relatedness and then determine whether the original entry requires updating or the case meets the recording criteria. Paragraph (b)(3) also recognizes that the employer may ask for input from more than one HCP, or the employer and employee may each do so, and in such cases, the rule requires the employer to rely on the one judged by the employer to be most authoritative.
Question 7-1. The old rule required the recording of all occupational illnesses, regardless of severity. For example, a work-related skin rash was recorded even if it didn't result in medical treatment. Does the rule still capture these minor illness cases?
No. Under the new rule, injuries and illnesses are recorded using the same criteria. As a result, some minor illness cases are no longer recordable. For example, a case of work-related skin rash is now recorded only if it results in days away from work, restricted work, transfer to another job, or medical treatment beyond first aid.
No, the size or degree of a work-related burn does not determine recordability. If a work-related first, second, or third degree burn results in one or more of the outcomes in section 1904.7 (days away, work restrictions, medical treatment, etc.), the case must be recorded.
Question 7-3. If an employee dies during surgery made necessary by a work-related injury or illness, is the case recordable? What if the surgery occurs weeks or months after the date of the injury or illness?
If an employee dies as a result of surgery or other complications following a work-related injury or illness, the case is recordable. If the underlying injury or illness was recorded prior to the employee's death, the employer must update the Log by lining out information on less severe outcomes, e.g., days away from work or restricted work, and checking the column indicating death.
Question 7-4. An employee hurts his or her left arm and is told by the doctor not to use the left arm for one week. The employee is able to perform all of his or her routine job functions using only the right arm (though at a slower pace and the employee is never required to use both arms to perform his or her job functions). Would this be considered restricted work?
No. If the employee is able to perform all of his or her routine job functions (activities the employee regularly performs at least once per week), the case does not involve restricted work. Loss of productivity is not considered restricted work.
No, surgical glue is a wound closing device. All wound closing devices except for butterfly and steri strips are by definition "medical treatment," because they are not included on the first aid list.
No. Intravenous administration of fluids to treat work-related heat stress is medical treatment.
Yes, the use of finger guards is always first aid.
Question 7-8. For medications such as Ibuprofen that are available in both prescription and non-prescription form, what is considered to be prescription strength? How is an employer to determine whether a non-prescription medication has been recommended at prescription strength for purposes of section 1904.7(b)(5)(i)(C)(ii)(A)?
The prescription strength of such medications is determined by the measured quantity of the theraputic agent to be taken at one time, i.e., a single dose. The single dosages that are considered prescription strength for four common over-the-counter drugs are: Ibuprofen (such as Advil) - Greater than 467 mg Diphenhydramine (such as Benadryl) - Greater than 50 mg Naproxen Sodium (such as Aleve) - Greater than 220 mg Ketoprofen (such as Orudus KT) - Greater than 25mg To determine the prescription-strength dosages for other drugs that are available in prescription and non-prescription formulations, the employer should contact OSHA, the United States Food and Drug Administration, their local pharmacist or their physician.
Question 7-9. If an employee who sustains a work-related injury requiring days away from work is terminated for drug use based on the results of a post-accident drug test, how is the case recorded? May the employer stop the day count upon termination of the employee for drug use under section 1904.7(b)(3) (viii)?
Under section 1904.7(b)(3)(viii), the employer may stop counting days away from work if an employee who is away from work because of an injury or illness leaves the company for some reason unrelated to the injury or illness, such as retirement or a plant closing. However, when the employer conducts a drug test based on the occurrence of an accident resulting in an injury at work and subsequently terminates the injured employee, the termination is related to the injury. Therefore, the employer must estimate the number of days that the employee would have been away from work due to the injury and enter that number on the 300 Log.
Question 7-10. Once an employer has recorded a case involving days away from work, restricted work or medical treatment and the employee has returned to his regular work or has received the course of recommended medical treatment, is it permissible for the employer to delete the Log entry based on a physician's recommendation, made during a year-end review of the Log, that the days away from work, work restriction or medical treatment were not necessary?
The employer must make an initial decision about the need for days away from work, a work restriction, or medical treatment based on the information available, including any recommendation by a physician or other licensed health care professional. Where the employer receives contemporaneous recommendations from two or more physicians or other licensed health care professionals about the need for days away, a work restriction, or medical treatment, the employer may decide which recommendation is the most authoritative and record the case based on that recommendation. Once the days away from work or work restriction have occurred or medical treatment has been given, however, the employer may not delete the Log entry because of a physician's recommendation, based on a year-end review of the Log, that the days away, restriction or treatment were unnecessary.
Question 7-10a. If a physician or other licensed health care professional recommends medical treatment, days away from work or restricted work activity as a result of a work-related injury or illness can the employer decline to record the case based on a contemporaneous second provider's opinion that the recommended medical treatment, days away from work or work restriction are unnecessary, if the employer believes the second opinion is more authoritative?
Yes. However, once medical treatment is provided for a work-related injury or illness, or days away from work or work restriction have occurred, the case is recordable. If there are conflicting contemporaneous recommendations regarding medical treatment, or the need for days away from work or restricted work activity, but the medical treatment is not actually provided and no days away from work or days of work restriction have occurred, the employer may determine which recommendation is the most authoritative and record on that basis. In the case of prescription medications, OSHA considers that medical treatment is provided once a prescription is issued.
Question 7-11. Section 1904.7(b)(5)(ii) of the rule defines first aid, in part, as "removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means." What are "other simple means" of removing splinters that are considered first aid?
"Other simple means" of removing splinters, for purposes of the first-aid definition, means methods that are reasonably comparable to the listed methods. Using needles, pins or small tools to extract splinters would generally be included.
Section 1904.7(b)(4)(xi) of the rule allows an employer to stop counting days of restricted work or transfer to another job if the restriction or transfer is made permanent. A permanent restriction or transfer is one that is expected to last for the remainder of the employee's career. Where the restriction or transfer is determined to be permanent at the time it is ordered, the employer must count at least one day of the restriction or transfer on the Log. If the employee whose work is restricted or who is transferred to another job is expected to return to his or her former job duties at a later date, the restriction or transfer is considered temporary rather than permanent.
If an employee never returns to work following a work-related injury, the employer must check the "days away from work" column, and enter an estimate of the number of days the employee would have required to recuperate from the injury, up to180 days.
Generally, the employer must record any case in which an employee's work is restricted because of a work-related injury. A work restriction, as defined in section 1904.7(b)(4)(i)(A), occurs when the employer keeps the employee from performing one or more routine functions of the job, or from working the full workday the employee would otherwise have been scheduled to work. The case in question is recordable if the employee would have worked 10 hours had he or she not been injured.
If oxygen is administered as a purely precautionary measure to an employee who does not exhibit any symptoms of an injury or illness, the case is not recordable. If the employee exposed to a substance exhibits symptoms of an injury or illness, the administration of oxygen makes the case recordable.
Section 1904.7(b) (4)(viii) deals with the recordablility of cases in which a physician or other health care professional has recommended a work restriction. The section also states that the employer "should ensure that the employee complies with the [recommended] restriction." This language is purely advisory and does not impose an enforceable duty upon employers to ensure that employees comply with the recommended restriction. [Note: In the absence of conflicting opinions from two or more health care professionals, the employer ordinarily must record the case if a health care professional recommends a work restriction involving the employee's routine job functions.]
Question 7-17. Are work-related cases involving chipped or broken teeth recordable?
Yes, under section 1904.7(b)(7), these cases are considered a significant injury or illness when diagnosed by a physician or other health care professional. As discussed in the preamble of the final rule, work-related fractures of bones or teeth are recognized as constituting significant diagnoses and, if the condition is work-related, are appropriately recorded at the time of initial diagnosis even if the case does not involve any of the other general recording criteria.
Question 7-18. How would the employer record the change on the OSHA 300 Log for an injury or illness after the injured worker reached the cap of 180 days for restricted work and then was assigned to "days away from work"?
The employer must check the box that reflects the most severe outcome associated with a given injury or illness. The severity of any case decreases on the log from column G (Death) to column J (Other recordable case). Since days away from work is a more severe outcome than restricted work the employer is required to remove the check initially placed in the box for job transfer or restriction and enter a check in the box for days away from work (column H). Employers are allowed to cap the number of days away and/or restricted work/job transfer when a case involves 180 calendar days. For purposes of recordability, the employer would enter 180 days in the "Job transfer or restriction" column and may also enter 1 day in the "Days away from work" column to prevent confusion or computer related problems.
Question 7-19. Does the employer have to record a work-related injury and illness, if an employee experiences minor musculoskeletal discomfort, the health care professional determines that the employee is fully able to perform all of his or her routine job functions, but the employer assigns a work restriction to the injured employee?
As set out in Chapter 2, I., F. of the Recordkeeping Policies and Procedures Manual (CPL 2-0.131) a case would not be recorded under section 1904.7(b)(4) if 1) the employee experiences minor musculoskeletal discomfort, and 2) a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and 3) the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing. If a case is or becomes recordable under any other general recording criteria contained in section 1904.7, such as medical treatment beyond first aid, a case involving minor musculoskeletal discomfort would be recordable.
Question 7-20. Are injuries and illnesses recordable if they occurred during employment, but were not discovered until after the injured or ill employee was terminated or retired?
These cases are recordable throughout the five year record retention and updating period contained in section 1904.33. The cases would be recorded on either the log of the year in which the injury or illness occurred or the last date of employment.
Question 7-21. If an employee leaves the company after experiencing a work-related injury or illness that results in days away from work and/or days of restricted work/job transfer how would an employer record the case?
If the employee leaves the company for some reason(s) unrelated to the injury or illness, section 1904.7(b)(3)(viii) of the rule allows the employer to stop counting days away from work or days of restriction/job transfer. In order to stop a count the employer must first have a count to stop. Thus, the employer must count at least one day away from work or day of restriction/job transfer on the OSHA 300 Log. If the employee leaves the company for some reason(s) related to the injury or illness, section 1904.7(b)(3)(viii) of the rule directs the employer to make an estimate of the count of days away from work or days of restriction/job transfer expected for the particular type of case.
Question 7-22 If an employee has an adverse reaction to a smallpox vaccination; is it recordable under OSHA's recordkeeping rule?
If an employee has an adverse reaction to a smallpox vaccination, the reaction is recordable if it is work related (see 29 CFR 1904.5) and meets the general recording criteria contained in 29 CFR 1904.7. A reaction caused by a smallpox vaccination is work related if the vaccination was necessary to enable the employee to perform his or her work duties. Such a reaction is work-related even though the employee was not required to receive it, if the vaccine was provided by the employer to protect the employee against exposure to smallpox in the work environment. For example, if a health care employer establishes a program to vaccinate employees who may be involved in treating people suffering from the effects of a smallpox outbreak, reactions to the vaccine would be work related. The same principle applies to adverse reactions among emergency response workers whose duties may cause them to be exposed to smallpox. The vaccinations in this circumstance are analogous to inoculations given to employees to immunize them from diseases to which they may be exposed to in the course of work-related overseas travel.
Question 7-23. An employee has a work-related shoulder injury resulting in days of restricted work activity. While working on restricted duty, the employee sustains a foot injury which results in a different work restriction. How would the employer record these cases?
For purposes of OSHA recordkeeping the employer would stop the count of the days of restricted work activity due to the first case, the shoulder injury, and enter the foot injury as a new case and record the number of restricted work days. If the restriction related to the second case, the foot injury, is lifted and the employee is still subject to the restriction related to their shoulder injury, the employer must resume the count of days of restricted work activity for that case.
Question 7-24. An employee is provided antibiotics for anthrax, although the employee does not test positive for exposure/infection. Is this a recordable event on the OSHA log?
No. A case must involve a death, injury, or illness to be recordable. A case involving an employee who does not test positive for exposure/infection would not be recordable because the employee is not injured or ill.
Question 7-25. An employee tests positive for anthrax exposure/infection and is provided antibiotics. Is this a recordable event on the OSHA log?
Yes. Under the most recent Recordkeeping requirements, which will be effective in January 2002, a work-related anthrax exposure/infection coupled with administration of antibiotics or other medical treatment must be recorded on the log. Until the new Recordkeeping requirements become effective, an employer is required to record a work-related illness, regardless of whether medical care is provided in connection with the illness.
Section 1904.7 General recording criteria.
Section 1904.7 contains the general recording criteria for recording work-related injuries and illnesses. This section describes the recording of cases that meet one or more of the following six criteria: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis as a significant injury or illness by a physician or other licensed health care professional.
Paragraph 1904.7(a) describes the basic requirement for recording an injury or illness in the OSHA recordkeeping system. It states that employers must record any work-related injury or illness that meets one or more of the final rule's general recording criteria. There are six such criteria: death, days away from work, days of restricted work or job transfer, medical treatment beyond first aid, loss of consciousness, or diagnosis by a physician or other licensed heath care professional as a significant injury or illness...
Paragraph 1904.7(b) tells employers how to record cases meeting each of the six general recording criteria and states how each case is to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a simple decision table listing the six general recording criteria and the paragraph number of each in the final rule. It is included to aid employers and recordkeepers in recording these cases.
Paragraph 1904.7(b)(2) requires the employer to record an injury or illness that results in death by entering a check mark on the OSHA 300 Log in the space for fatal cases. This paragraph also directs employers to report work-related fatalities to OSHA within 8 hours and cross references the fatality and catastrophe reporting requirements in Section 1904.39 of the final rule, Reporting fatalities and multiple hospitalizations to OSHA...
Paragraph 1904.7(b)(3) Days Away From Work
Paragraph 1904.7(b)(3) contains the requirements for recording work-related injuries and illnesses that result in days away from work and for counting the total number of days away associated with a given case. Paragraph 1904.7(b)(3) requires the employer to record an injury or illness that involves one or more days away from work by placing a check mark on the OSHA 300 Log in the space reserved for day(s) away cases and entering the number of calendar days away from work in the column reserved for that purpose. This paragraph also states that, if the employee is away from work for an extended time, the employer must update the day count when the actual number of days away becomes known...
Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not to count the day of the injury or illness as a day away, but is to begin counting days away on the following day. Thus, even though an injury or illness may result in some loss of time on the day of the injurious event or exposure because, for example, the employee seeks treatment or is sent home, the case is not considered a days-away-from-work case unless the employee does not work on at least one subsequent day because of the injury or illness. The employer is to begin counting days away on the day following the injury or onset of illness...
Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to record days-away cases when a physician or other licensed health care professional (HCP) recommends that the injured or ill worker stay at home or that he or she return to work but the employee chooses not to do so. OSHA requires employers to follow the physician's or HCP's recommendation when recording the case. Further, whether the employee works or not is in the control of the employer, not the employee. That is, if an HCP recommends that the employee remain away from work for one or more days, the employer is required to record the injury or illness as a case involving days away from work and to keep track of the days; the employee's wishes in this case are not relevant, since it is the employer who controls the conditions of work. Similarly, if the HCP tells the employee that he or she can return to work, the employer is required by the rule to stop counting the days away from work, even if the employee chooses not to return to work. OSHA is aware that there may be situations where the employer obtains an opinion from a physician or other health care professional and a subsequent HCP's opinion differs from the first. (The subsequent opinion could be that of an HCP retained by the employer or the employee.) In this case, the employer is the ultimate recordkeeping decision-maker and must resolve the differences in opinion; he or she may turn to a third HCP for this purpose, or may make the recordability decision himself or herself.
Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account for weekends, holidays, and other days during which the employee was unable to work because of a work-related injury or illness during a period in which the employee was not scheduled to work. The rule requires the employer to count the number of calendar days the employee was unable to work because of the work-related injury or illness, regardless of whether or not the employee would have been scheduled to work on those calendar days...
Paragraph 1904.7(b)(3)(v) tells the employer how to count days away for a case where the employee is injured or becomes ill on the last day of work before some scheduled time off, such as on the Friday before the weekend or the day before a scheduled vacation, and returns to work on the next day that he or she was scheduled to work. In this situation, the employer must decide if the worker would have been able to work on the days when he or she was not at work. In other words, the employer is not required to count as days away any of the days on which the employee would have been able to work but did not because the facility was closed, the employee was not scheduled to work, or for other reasons unrelated to the injury or illness. However, if the employer determines that the employee's injury or illness would have kept the employee from being able to work for part or all of time the employee was away, those days must be counted toward the days away total.
Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the days away from work when the injury or illness has resulted in 180 calendar days away from work. When the injury or illness results in an absence of more than 180 days, the employer may enter 180 (or 180+) on the Log...
Paragraph 1904.7(b)(3)(vii) specifies that employers whose employees are away from work because of a work-related injury or illness and who then decide to leave the company's employ or to retire must determine whether the employee is leaving or retiring because of the injury or illness and record the case accordingly. If the employee's decision to leave or retire is a result of the injury or illness, this paragraph requires the employer to estimate and record the number of calendar days away or on restricted work/job transfer the worker would have experienced if he or she had remained on the employer's payroll. This provision also states that, if the employee's decision was unrelated to the injury or illness, the employer is not required to continue to count and record days away or on restricted work/job transfer.
Paragraph 1904.7(b)(3)(viii) directs employers how to handle a case that carries over from one year to the next. Some cases occur in one calendar year and then result in days away from work in the next year. For example, a worker may be injured on December 20th and be away from work until January 10th. The final rule directs the employer only to record this type of case once, in the year that it occurred. If the employee is still away from work when the annual summary is prepared (before February 1), the employer must either count the number of days the employee was away or estimate the total days away that are expected to occur, use this estimate to calculate the total days away during the year for the annual summary, and then update the Log entry later when the actual number of days is known or the case reaches the 180-day cap allowed in Section 1904.7(b)(3)(v)...
...OSHA has decided to require employers to count calendar days, both for the totals for days away from work and the count of restricted workdays...
Changing to a calendar day counting system will also make it easier to count days away or restricted for part-time workers, because the difficulties of counting scheduled time off for part-time workers will be eliminated. This will, in turn, mean that the data for part-time workers will be comparable to that for full-time workers, i.e., days away will be comparable for both kinds of workers, because scheduled time will not bias the counting method. Calendar day counts will also be a better measure of severity, because they will be based on the length of disability instead of being dependent on the individual employee's work schedule. This policy will thus create more complete and consistent data and help to realize one of the major goals of this rulemaking: to improve the quality of the injury and illness data.
OSHA recognizes that moving to calendar day counts will have two effects on the data. First, it will be difficult to compare injury and illness data gathered under the former rule with data collected under the new rule. This is true for day counts as well as the overall number and rate of occupational injuries and illnesses. Second, it will be more difficult for employers to estimate the economic impacts of lost time. Calendar day counts will have to be adjusted to accommodate for days away from work that the employee would not have worked even if he or she was not injured or ill. This does not mean that calendar day counts are not appropriate in these situations, but it does mean that their use is more complicated in such cases. Those employers who wish to continue to collect additional data, including scheduled workdays lost, may continue to do so. However, employers must count and record calendar days for the OSHA injury and illness Log.
Thus, on balance, OSHA believes that any problems introduced by moving to a calendar-day system will be more than offset by the improvements in the data from one case to the next and from one employer to another, and by the resulting improvements in year-to-year analysis made possible by this change in the future, i.e., by the improved consistency and quality of the data.
The more difficult problem raised by the shift to calendar days occurs in the case of the injury or illness that results on the day just before a weekend or some other prescheduled time off. Where the worker continues to be off work for the entire time because of the injury or illness, these days are clearly appropriately included in the day count. As previously discussed, if a physician or other licensed health care professional issues a medical release at some point when the employee is off work, the employer may stop counting days at that point in the prescheduled absence. Similarly, if the HCP tells the injured or ill worker not to work over the scheduled time off, the injury was severe enough to require days away and these must all be counted. In the event that the worker was injured or became ill on the last day before the weekend or other scheduled time off and returns on the scheduled return date, the employer must make a reasonable effort to determine whether or not the employee would have been able to work on any or all of those days, and must count the days and enter them on the Log based on that determination. In this situation, the employer need not count days on which the employee would have been able to work, but did not, because the facility was closed, or the employee was not scheduled to work, or for other reasons unrelated to the injury or illness...
Capping the Count of Lost Workdays
...After a review of the evidence submitted to the record, OSHA has decided to include in the final rule a provision that allows the employer to stop counting days away from work or restricted workdays when the case has reached 180 days...
Selection of the Day Count Cap
...After careful consideration, OSHA has decided to cap the day counts at 180 days and to express the count as days rather than months...
OSHA has decided to cap the counts at 180 days to eliminate any effect such capping might have on the median days away from work data reported by BLS...
Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job
Another class of work-related injuries and illnesses that Section 8(c) of the Act identifies as non-minor and thus recordable includes any case that results in restriction of work or motion...or transfer to another job. Congress clearly identified restricted work activity and job transfer as indicators of injury and illness severity...
Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's Reasons for Adopting Them
Paragraph 1904.7(b)(4) contains the restricted work and job transfer provisions of the final rule...
The final rule's requirements in paragraph 1904.10(b)(4) of the final rule state:
(4) How do I record a work-related injury or illness that involves restricted work or job transfer?
When an injury or illness involves restricted work or job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restricted work and entering the number of restricted or transferred days in the restricted work column.
(i) How do I decide if the injury or illness resulted in restricted work?
Restricted work occurs when, as the result of a work-related injury or illness:
(A) You keep the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work; or
(B) A physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job, or not work the full workday that he or she would otherwise have been scheduled to work.
(ii) What is meant by "routine functions"?
For recordkeeping purposes, an employee's routine functions are those work activities the employee regularly performs at least once per week.
(iii) Do I have to record restricted work or job transfer if it applies only to the day on which the injury occurred or the illness began?
No. You do not have to record restricted work or job transfers if you, or the physician or other licensed health care professional, impose the restriction or transfer only for the day on which the injury occurred or the illness began.
(iv) If you or a physician or other licensed health care professional recommends a work restriction, is the injury or illness automatically recordable as a "restricted work" case?
No. A recommended work restriction is recordable only if it affects one or more of the employee's routine job functions. To determine whether this is the case, you must evaluate the restriction in light of the routine functions of the injured or ill employee's job. If the restriction from you or the physician or other licensed health care professional keeps the employee from performing one or more of his or her routine job functions, or from working the full workday the injured or ill employee would otherwise have worked, the employee's work has been restricted and you must record the case.
(v) How do I record a case where the worker works only for a partial work shift because of a work-related injury or illness?
A partial day of work is recorded as a day of job transfer or restriction for recordkeeping purposes, except for the day on which the injury occurred or the illness began.
(vi) If the injured or ill worker produces fewer goods or services than he or she would have produced prior to the injury or illness but otherwise performs all of the activities of his or her work, is the case considered a restricted work case?
No. The case is considered restricted work only if the worker does not perform all of the routine functions of his or her job or does not work the full shift that he or she would otherwise have worked.
(vii) How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in "light duty" or "take it easy for a week"?
If you are not clear about a physician or other licensed health care professional's recommendation, you may ask that person whether the employee can perform all of his or her routine job functions and work all of his or her normally assigned work shift. If the answer to both of these questions is "Yes," then the case does not involve a work restriction and does not have to be recorded as such. If the answer to one or both of these questions is "No," the case involves restricted work and must be recorded as a restricted work case. If you are unable to obtain this additional information from the physician or other licensed health care professional who recommended the restriction, record the injury or illness as a case involving job transfer or restricted work.
(viii) What do I do if a physician or other licensed health care professional recommends a job restriction meeting OSHA's definition but the employee does all of his or her routine job functions anyway?
You must record the injury or illness on the OSHA 300 Log as a restricted work case. If a physician or other licensed health care professional recommends a job restriction, you should ensure that the employee complies with that restriction. If you receive recommendations from two or more physicians or other licensed health care providers, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.
...The final rule's concept of restricted work is based both on the type of work activities the injured or ill worker is able to perform and the length of time the employee is able to perform these activities. The term "routine functions of the job" in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii) clarifies that OSHA considers an employee who is unable, because of a work-related injury or illness, to perform the job activities he or she usually performs to be restricted in the work he or she may perform...
...OSHA agrees that it makes little sense to consider an employee who is prevented by an injury or illness from performing a particular job function he or she never or rarely performed to be restricted...
For example, OSHA finds that, for the purposes of recordkeeping, an activity that is performed only once per month is not performed "regularly."...
...In the final rule, OSHA has decided that defining restricted work as work that an employee would regularly have performed at least once per week is appropriate, i.e., OSHA believes that the range of activities captured by this interval of time will generally reflect the range of an employee's usual work activities. Activities performed less frequently than once per week reflect more uncommon work activities that are not considered routine duties for the purposes of this rule. However, the final rule does not rely on the duties the employee actually performed during the week when he or she was injured or became ill. Thus, even if an employee did not perform the activity within the last week, but usually performs the activity once a week, the activity will be included...
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: an HCP's 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...
...[T]he Congress has directed that the recordkeeping system capture data on non-minor work-related injuries and illnesses and specifically on restricted work cases, both so that the national statistics on such injuries and illnesses will be complete and so that links between the causes and contributing factors to such injuries and illnesses will be identified (29 U.S.C. 651(b)). Days away and restricted work/job transfer cases together constitute two of the most important kinds of job-related injuries and illnesses, and it would be inappropriate not to record these serious cases...
Under the final rule, employers are not required to record a case as a restricted work case if the restriction is imposed on the employee only for the day of the injury or onset of illness...
...OSHA has made this change to bring the recording of restricted work cases into line with that for days away cases: under the final rule, employers are not required to record as days away or restricted work cases those injuries and illnesses that result in time away or time on restriction or job transfer lasting only for the day of injury of illness onset...
...Under the final rule (see section 1904.9), mandated removals made in accordance with an OSHA health standard must be recorded either as days away from work or as days of restricted work activity, depending on the specific action an employer takes. Since these actions are mandated, no disincentive to record is created by this recordkeeping rule...
...Transfers or restrictions taken before the employee has experienced an injury or illness do not meet the first recording requirement of the recordkeeping rule, i.e., that a work-related injury or illness must have occurred for recording to be considered at all. A truly preventive medical treatment, for example, would be a tetanus vaccination administered routinely to an outdoor worker. However, transfers or restrictions whose purpose is to allow an employee to recover from an injury or illness as well as to keep the injury or illness from becoming worse are recordable because they involve restriction or work transfer caused by the injury or illness. All restricted work cases and job transfer cases that result from an injury or illness that is work-related are recordable on the employer's Log.
As the regulatory text for paragraph (b)(4) makes clear, the final rule's requirements for the recording of restricted work cases are similar in many ways to those pertaining to restricted work under the former rule. First, like the former rule, the final rule only requires employers to record as restricted work cases those cases in which restrictions are imposed or recommended as a result of a work-related injury or illness. A work restriction that is made for another reason, such as to meet reduced production demands, is not a recordable restricted work case. For example, an employer might "restrict" employees from entering the area in which a toxic chemical spill has occurred or make an accommodation for an employee who is disabled as a result of a non-work-related injury or illness. These cases would not be recordable as restricted work cases because they are not associated with a work-related injury or illness. However, if an employee has a work-related injury or illness, and that employee's work is restricted by the employer to prevent exacerbation of, or to allow recuperation from, that injury or illness, the case is recordable as a restricted work case because the restriction was necessitated by the work-related injury or illness. In some cases, there may be more than one reason for imposing or recommending a work restriction, e.g., to prevent an injury or illness from becoming worse or to prevent entry into a contaminated area. In such cases, if the employee's work-related illness or injury played any role in the restriction, OSHA considers the case to be a restricted work case.
Second, for the definition of restricted work to apply, the work restriction must be decided on by the employer, based on his or her best judgment or on the recommendation of a physician or other licensed health care professional. If a work restriction is not followed or implemented by the employee, the injury or illness must nevertheless be recorded on the Log as a restricted case...
Third, like the former rule, the final rule's definition of restricted work relies on two components: whether the employee is able to perform the duties of his or her pre-injury job, and whether the employee is able to perform those duties for the same period of time as before.
Paragraph 1904.7(b)(5) Medical Treatment Beyond First Aid
...As a result of this final rule, OSHA will now apply the same recordability criteria to both injuries and illnesses (see the discussion of this issue in the Legal Authority section of this preamble). The Agency believes that doing so will simplify the decision-making process that employers carry out when determining which work-related injuries and illnesses to record and will also result in more complete data on occupational illness, because employers will know that they must record these cases when they result in medical treatment beyond first aid, regardless of whether or not a physician or other licensed health care professional has made a diagnosis...
...Under the final rule, employers will be able to rely on a single list of 14 first aid treatments. These treatments will be considered first aid whether they are provided by a lay person or a licensed health care professional. However, the final rule includes the following definition of medical treatment; "management and care of a patient for the purpose of combating disease or disorder;" this definition excludes observation and counseling, diagnostic procedures, and the listed first aid items...
...The following discussion describes the definitions of first aid and medical treatment in the final rule and explains the Agency's reasons for including each item on the first aid list.
The final rule, at Section 1904.7(b)(5)(i), defines medical treatment as the management and care of a patient for the purpose of combating disease or disorder. For the purposes of Part 1904, medical treatment does not include:
(A) Visits to a physician or other licensed health care professional solely for observation or counseling;
(B) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or
(C) "First aid" as defined in paragraph (b)(5)(ii) of this section.
The final rule, at paragraph (b)(5)(ii), defines first aid as follows:
(A) Using a nonprescription medication at nonprescription strength (for medications available in both prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes).
(B) Administering tetanus immunizations (other immunizations, such as hepatitis B vaccine or rabies vaccine, are considered medical treatment).
(C) Cleaning, flushing or soaking wounds on the surface of the skin;
(D) Using wound coverings, such as bandages, Band-Aids®, gauze pads, etc.; or using butterfly bandages or Steri-Strips® (other wound closing devices, such as sutures, staples, etc. are considered medical treatment);
(E) Using hot or cold therapy;
(F) Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes);
(G) Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.)
(H) Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister;
(I) Using eye patches;
(J) Removing foreign bodies from the eye using only irrigation or a cotton swab;
(K) Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs, or other simple means;
(L) Using finger guards;
(M) Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes);
(N) Drinking fluids for relief of heat stress.
This list of first aid treatments is comprehensive, i.e., any treatment not included on this list is not considered first aid for OSHA recordkeeping purposes. OSHA considers the listed treatments to be first aid regardless of the professional qualifications of the person providing the treatment; even when these treatments are provided by a physician, nurse, or other health care professional, they are considered first aid for recordkeeping purposes...
...The medical treatment definition in the final rule is taken from Dorland's Illustrated Medical Dictionary, and is thus consistent with usage in the medical community.
The three listed exclusions from the definition--visits to a health care professional solely for observation or counseling; diagnostic procedures, including prescribing or administering of prescription medications used solely for diagnostic purposes; and procedures defined in the final rule as first aid--clarify the applicability of the definition and are designed to help employers in their determinations of recordability...
...Employers will thus be clear that any condition that is treated, or that should have been treated, with a treatment not on the first aid list is a recordable injury or illness for recordkeeping purposes...
In making its decisions about the items to be included on the list of first aid treatments, OSHA relied on its experience with the former rule, the advice of the Agency's occupational medicine and occupational nursing staff, and a thorough review of the record comments. In general, first aid treatment can be distinguished from medical treatment as follows:
The final rule's list of treatments considered first aid is based on the record of the rulemaking, OSHA's experience in implementing the recordkeeping rule since 1986, a review of the BLS Recordkeeping Guidelines, letters of interpretation, and the professional judgment of the Agency's occupational physicians and nurses...
OSHA agrees that counseling should not be considered medical treatment and has expressly excluded it from the definition of medical treatment. Coun-seling is often provided to large groups of workers who have been exposed to potentially traumatic events. Counseling may be provided on a short-term basis by either a licensed health care professional or an unlicensed person with limited training. OSHA believes that capturing cases where counseling was the only treatment provided do not rise to the level of recording; other counseling cases, where prescription medications, days away from work, or restricted work activity is involved, would be captured under those criteria...
...OSHA believes that visits to a health care professional for observation, testing, diagnosis, or to evaluate diagnostic decisions should be excluded from the definition of medical treatment in the final rule. Visits to a hospital, clinic, emergency room, physician's office or other facility for the purpose of seeking the advice of a health care professional do not themselves constitute treatment. OSHA believes that visits to a hospital for observation or counseling are not, of and by themselves, medical treatment. Accordingly, the final rule excludes these activities from the definition of medical treatment...
OSHA disagrees...that the exclusion for diagnostic procedures is overly vague. It is the experience of the Agency that employers generally understand the difference between procedures used to combat an injury or illness and those used to diagnose or assess an injury or illness. In the event that the employer does not have this knowledge, he or she may contact the health care professional to obtain help with this decision. If the employer does not have this knowledge, and elects not to contact the health care professional, OSHA would expect the employer to refer to the first aid list and, if the procedure is not on the list, to presume that the procedure is medical treatment and record the case...
OSHA agrees with those commenters who recommended the exclusion of diagnostic procedures from the definition of medical treatment. Diagnostic procedures are used to determine whether or not an injury or illness exists, and do not encompass therapeutic treatment of the patient. OSHA has included such procedures on the first aid list in the final rule with two examples of diagnostic procedures to help reduce confusion about the types of procedures that are excluded...
In the final rule, OSHA has not included prescription medications, whether given once or over a longer period of time, in the list of first aid treatments. The Agency believes that the use of prescription medications is not first aid because prescription medications are powerful substances that can only be prescribed by a licensed health care professional, and for the majority of medications in the majority of states, by a licensed physician. The availability of these substances is carefully controlled and limited because they must be prescribed and administered by a highly trained and knowledgeable professional, can have detrimental side effects, and should not be self-administered.
Some commenters asked whether a case where a prescription was written by a physician and given to the injured or ill employee but was not actually filled or taken would be recordable. In some instances the employee, for religious or other reasons, refuses to fill the prescription and take the medicine. In other cases, the prescriptions are issued on a "take-as-needed" basis. In these cases, the health care professional gives the patient a prescription, often for pain medication, and tells the patient to fill and take the prescription if he or she needs pain relief. OSHA's long-standing policy has been that if a prescription of this type has been issued, medical treatment has been provided and the case must therefore be recorded...
OSHA has decided to retain its long-standing policy of requiring the recording of cases in which a health care professional issues a prescription, whether that prescription is filled or taken or not. The patient's acceptance or refusal of the treatment does not alter the fact that, in the health care professional's judgment, the case warrants medical treatment...
The final rule does not consider the prescribing of non-prescription medications, such as aspirin or over-the-counter skin creams, as medical treatment. However, if the drug is one that is available both in prescription and nonprescription strengths, such as ibuprofen, and is used or recommended for use by a physician or other licensed health care professional at prescription strength, the medical treatment criterion is met and the case must be recorded. There is no reason for one case to be recorded and another not to be recorded simply because one physician issued a prescription and another told the employee to use the same medication at prescription strength but to obtain it over the counter. Both cases received equal treatment and should be recorded equally...
...The final rule simply lists non-prescription medications, and expects non-prescription medications to be included regardless of form. Therefore, non-prescription medicines at non-prescription strength, whether in ointment, cream, pill, liquid, spray, or any other form are considered first aid. OSHA has also removed antiseptics from the description of non-prescription medications. Following the same logic used for ointments, there is no need to list the variety of possible uses of non-prescription medications. Non-prescription medicines are first aid regardless of the way in which they are used...
...[T]he Agency has decided to remove the use of oxygen from the first aid list and to consider any use of oxygen medical treatment. Oxygen administration is a treatment that can only be provided by trained medical personnel, uses relatively complex technology, and is used to treat serious injuries and illnesses. The use of any artificial respiration technology, such as Intermittent Positive Pressure Breathing (IPPB), would also clearly be considered medical treatment under the final rule...
In the final rule, tetanus immunizations are included as item B on the first aid list. These immunizations are often administered to a worker routinely to maintain the required level of immunity to the tetanus bacillus. These immunizations are thus based not on the severity of the injury but on the length of time since the worker has last been immunized.
The issue of whether or not immunizations and inoculations are first aid or medical treatment is irrelevant for recordkeeping purposes unless a work-related injury or illness has occurred. Immunizations and inoculations that are provided for public health or other purposes, where there is no work-related injury or illness, are not first aid or medical treatment, and do not in themselves make the case recordable. However, when inoculations such as gamma globulin, rabies, etc. are given to treat a specific injury or illness, or in response to workplace exposure, medical treatment has been rendered and the case must be recorded. The following example illustrates the distinction OSHA is making about inoculations and immunizations: if a health care worker is given a hepatitis B shot when he or she is first hired, the action is considered first aid and the case would not be recordable; on the other hand, if the same health care worker has been occupationally exposed to a splash of potentially contaminated blood and a hepatitis B shot is administered as prophylaxis, the shot constitutes medical treatment and the case is recordable...
OSHA believes that cleaning, flushing or soaking of wounds on the skin surface is the initial emergency treatment for almost all surface wounds and that these procedures do not rise to the level of medical treatment. This relatively simple type of treatment does not require technology, training, or even a visit to a health care professional. More serious wounds will be captured as recordable cases because they will meet other recording criteria, such as prescription medications, sutures, restricted work, or days away from work. Therefore, OSHA has included cleaning, flushing or soaking of wounds on the skin surface as an item on the first aid list. As stated previously, OSHA does not believe that multiple applications of first aid should constitute medical treatment; it is the nature of the treatment, not how many times it is applied, that determines whether it is first aid or medical treatment...
OSHA agrees with the commenters who suggested that [wound coverings] be considered first aid treatment. They are included in item D of the first aid list. Steri strips and butterfly bandages are relatively simple and require little or no training to apply, and thus are appropriately considered first aid...
...OSHA has also decided not to provide exclusions for first aid items based on their purpose or intent. If the medical professional decides stitches or sutures are necessary and proper for the given injury, they are medical treatment.
Because OSHA has decided not to include a list of medical treatments in the final rule, there is no need to articulate that the use of other wound closing devices, such as surgical staples, tapes, glues or other means are medical treatment. Because they are not included on the first aid list, they are by definition medical treatment...
In the final rule, OSHA has included hot and cold treatment as first aid treatment, regardless of the number of times it is applied, where it is applied, or the injury or illness to which it is applied...
It is OSHA's judgment that hot and cold treatment is simple to apply, does not require special training, and is rarely used as the only treatment for any significant injury or illness. If the worker has sustained a significant injury or illness, the case almost always involves some other form of medical treatment (such as prescription drugs, physical therapy, or chiropractic treatment); restricted work; or days away from work. Therefore, there is no need to consider hot and cold therapy to be medical treatment, in and of itself. Considering hot and cold therapy to be first aid also clarifies and simplifies the rule, because it means that employers will not need to consider whether to record when an employee uses hot or cold therapy without the direction or guidance of a physician or other licensed health care professional...
OSHA has included two items related to orthopedic devices in the final definition of first aid. Item F includes "[u]sing any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes)." OSHA has included more examples of the devices (wraps and non-rigid back belts) to help make the definition clearer. However, OSHA believes that the use of orthopedic devices such as splints or casts should be considered medical treatment and not first aid. They are typically prescribed by licensed health care professionals for long term use, are typically used for serious injuries and illnesses, and are beyond the everyday definition of first aid...
However, OSHA agrees with those commenters who stated that the use of these devices during an emergency to stabilize an accident victim during transport to a medical facility is not medical treatment. In this specific situation, a splint or other device is used as temporary first aid treatment, may be applied by non-licensed personnel using common materials at hand, and often does not reflect the severity of the injury. OSHA has included this item as G on the first aid list: "[u]sing temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, etc.)."...
...[Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister.] OSHA has decided to retain this item on the first aid list and to add the lancing of blisters as well. These are both one time treatments provided to relieve minor soreness caused by the pressure beneath the nail or in the blister. These are relatively minor procedures that are often performed by licensed personnel but may also be performed by the injured worker. More serious injuries of this type will continue to be captured if they meet one or more of the other recording criteria. OSHA has specifically mentioned finger nails and toenails to provide clarity. These treatments are now included as item H on the first aid list...
...In the final rule, OSHA has included the use of eye patches as first aid in item I of the first aid list. Eye patches can be purchased without a prescription, and are used for both serious and non-serious injuries and illnesses...
In the final rule, OSHA has included as item J "Removing foreign bodies from the eye using only irrigation or a cotton swab." OSHA believes that it is often difficult for the health care professional to determine if the object is embedded or adhered to the eye, and has not included this suggested language in the final rule. In all probability, if the object is embedded or adhered, it will not be removed simply with irrigation or a cotton swab, and the case will be recorded because it will require additional treatment.
OSHA believes that it is appropriate to exclude those cases from the Log that involve a foreign body in the eye of a worker that can be removed from the eye merely by rinsing it with water (irrigation) or touching it with a cotton swab. These cases represent minor injuries that do not rise to the level requiring recording. More significant eye injuries will be captured by the records because they involve medical treatment, result in work restrictions, or cause days away from work...
Item 13, the last item listed in the proposed definition of first aid, was "Removal of splinters or foreign material from areas other than the eyes by irrigation, tweezers, cotton swabs or other simple means." The Recordkeeping Guidelines distinguished between foreign body removal cases on the basis of the complexity of the removal technique used. According to the Guidelines, the "removal of foreign bodies from a wound if the procedure is complicated because of depth of embedment, size or location" was medical treatment, while "removal of foreign bodies from a wound, if procedure is uncomplicated, and is, for example, by tweezers or other simple technique" was first aid.
In the final rule, OSHA has decided to retain item 13 essentially as proposed, and this first aid treatment appears as item K on the first aid list. The inclusion of the phrase "other simple means" will provide some flexibility and permit simple means other than those listed to be considered first aid. Cases involving more complicated removal procedures will be captured on the Log because they will require medical treatment such as prescription drugs or stitches or will involve restricted work or days away from work. OSHA believes that cases involving the excision of the outer layer of skin are not appropriately considered first aid . . .; excision of tissue requires training and the use of surgical instruments.
Additions to the First Aid List Suggested by Commenters
In addition to comments about the first aid items OSHA proposed to consider first aid, a number of commenters asked for additional clarifications or recommended additions to the first aid list. The items suggested included exercise, chiropractic treatment, massage, debridement, poison ivy, bee stings, heat disorders, and burns.
Exercise: ...[E]xercises that amount to self-administered physical therapy, and are normally recommended by a health care professional who trains the worker in the proper frequency, duration and intensity of the exercise. Physical therapy treatments are normally provided over an extended time as therapy for a serious injury or illness, and OSHA believes that such treatments are beyond first aid and that cases requiring them involve medical treatment.
Chiropractic treatment: ...OSHA does not distinguish, for recordkeeping purposes, between first aid and medical treatment cases on the basis of number of treatments administered. OSHA also does not distinguish between various kinds of health care professionals, assuming they are operating within their scope of practice. If a chiropractor provides observation, counseling, diagnostic procedures, or first aid procedures for a work-related injury or illness, the case would not be recordable. On the other hand, if a chiropractor provides medical treatment or prescribes work restrictions, the case would be recordable.
Massage therapy: ... OSHA believes that massages are appropriately considered first aid and has included them as item M in the final rule's first aid list. However, physical therapy or chiropractic manipulation are treatments used for more serious injuries, and are provided by licensed personnel with advanced training and therefore rise to the level of medical treatment beyond first aid.
Debridement: ...Debridement is the surgical excision, or cutting away, of dead or contaminated tissue from a wound...
OSHA has decided not to include debridement as a first aid treatment. This procedure must be performed by a highly trained professional using surgical instruments. Debridement is also usually performed in conjunction with other forms of medical treatment, such as sutures, prescription drugs, etc.
Intravenous (IV) administration of glucose and saline: ...In the final rule ...OSHA has decided not to include the IV administration of fluids on the first aid list because these treatments are used for serious medical events, such as post-shock, dehydration or heat stroke. The administration of IVs is an advanced procedure that can only be administered by a person with advanced medical training, and is usually performed under the supervision of a physician.
[A commenter] also recommended three additions to the first aid list: UV treatment of blisters, rashes and dermatitis; acupuncture, when administered by a licensed health care professional; and electronic stimulation. After careful consideration, OSHA has decided not to include these treatments as first aid. Each of these treatments must be provided by a person with specialized training, and is usually administered only after recommendation by a physician or other licensed health care professional.
Several commenters asked that treatments for two specific types of disorders be added to the list: heat disorders and burns. OSHA has not added these types of conditions to the first aid list because the list includes treatments rather than conditions. However, OSHA has added fluids given by mouth for the relief of heat disorders to the list.
In the final rule, OSHA agrees ... that drinking fluids for the relief of heat disorders is a first aid rather than medical treatment and item N on the final first aid list is "drinking fluids for relief of heat stress." OSHA believes that more extensive treatment, including the administration of fluids by intravenous injections (IV), are medical treatment, and more serious cases of heat disorders involving them must be entered into the records. In addition, any diagnosis by a physician or other licensed health care professional of heat syncope (fainting due to heat) is recordable under paragraph 1904.7(b)(6), Loss of Consciousness.
Burns: ...[B]urns will be treated just as other types of injury are, i.e., minor burn injuries will not be recordable, while more serious burns will be recorded because they will involve medical treatment. For example, a small second degree burn to the forearm that is treated with nothing more than a bandage is not recordable. A larger or more severe second degree burn that is treated with prescription creams or antibiotics, or results in restricted work, job transfer, or days away from work is recordable. The vast majority of first degree burns and minor second degree burns will not be recorded because they will not meet the recording criteria, including medical treatment. However, more serious first and second degree burns that receive medical treatment will be recorded, and third degree burns should always be recorded because they require medical treatment...
Paragraph 1904.7(b)(6) Loss of Consciousness
The rule, requires the employer to record any work-related injury or illness resulting in a loss of consciousness. The recording of occupational injuries and illnesses resulting in loss of consciousness is clearly required by Sections 8(c) and 24 of the OSH Act. The new rule differs from the former rule only in clearly applying the loss of consciousness criterion to illnesses as well as injuries. Since the former rule required the recording of all illnesses, illnesses involving loss of consciousness were recordable, and thus OSHA expects that this clarification will not change recording practices. Thus, any time a worker becomes unconscious as a result of a workplace exposure to chemicals, heat, an oxygen deficient environment, a blow to the head, or some other workplace hazard that causes loss of consciousness, the employer must record the case...
In order to be a recordable event, a loss of consciousness must be the result of a workplace event or exposure. Loss of consciousness is no different, in this respect, from any other injury or illness. The exceptions to the presumption of work-relationship at Section 1904.5(b)(2)(ii) allow the employer to exclude cases that "involve signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment." This exception allows the employer to exclude cases where a loss of consciousness is due solely to a personal health condition, such as epilepsy, diabetes, or narcolepsy...
The final rule does not contain an exception for loss of consciousness associated with phobias or first aid treatment. OSHA notes, however, that the exception at paragraph 1904.5(b)(2)(iii) allows the employer to rebut the presumption of work relationship if "the injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical, flu shot, exercise class, racquetball, or baseball." This exception would eliminate the recording of fainting episodes involving voluntary vaccination programs, blood donations and the like. However, episodes of fainting from mandatory medical procedures such as blood tests mandated by OSHA standards, mandatory physicals, and so on would be considered work-related events, and would be recordable on the Log if they meet one or more of the recording criteria. Similarly, a fainting episode involving a phobia stemming from an event or exposure in the work environment would be recordable...
...In this final rule, OSHA has not included a separate definition for the term "loss of consciousness." However, the language of paragraph 1904.7(b)(6) has been carefully crafted to address two issues. First, the paragraph refers to a worker becoming "unconscious," which means a complete loss of consciousness and not a sense of disorientation, "feeling woozy," or a other diminished level of awareness. Second, the final rule makes it clear that loss of consciousness does not depend on the amount of time the employee is unconscious. If the employee is rendered unconscious for any length of time, no matter how brief, the case must be recorded on the OSHA 300 Log.
Paragraph 1904.7(b)(7) Recording Significant Work-Related Injuries and Illnesses Diagnosed by a Physician or Other Licensed Health Care Professional
Paragraph 1904.7(b)(7) of this final rule requires the recording of any significant work-related injury or illness diagnosed by a physician or other licensed health care professional. Paragraph 1904.7(b)(7) clarifies which significant, diagnosed work-related injuries and illnesses OSHA requires the employer to record in those rare cases where a significant work-related injury or illness has not triggered recording under one or more of the general recording criteria, i.e, has not resulted in death, loss of consciousness, medical treatment beyond first aid, restricted work or job transfer, or days away from work. OSHA believes that the great majority of significant occupational injuries and illnesses will be captured by one or more of the other general recording criteria in Section 1904.7. However, OSHA has found that there is a limited class of significant work-related injuries and illnesses that may not be captured under the other Section 1904.7 criteria. Therefore, the final rule stipulates at paragraph 1904.7(b)(7) that any significant work-related occupational injury or illness that is not captured by any of the general recording criteria but is diagnosed by a physician or other licensed health care professional be recorded in the employer's records.
Under the final rule, an injury or illness case is considered significant if it is a work-related case involving occupational cancer (e.g., mesothelioma), chronic irreversible disease (e.g., chronic beryllium disease), a fractured or cracked bone (e.g., broken arm, cracked rib), or a punctured eardrum. The employer must record such cases within 7 days of receiving a diagnosis from a physician or other licensed health care professional that an injury or illness of this kind has occurred...
...[T]here are some significant injuries, such as a punctured eardrum or a fractured toe or rib, for which neither medical treatment nor work restrictions may be administered or recommended.
There are also a number of significant occupational diseases that progress once the disease process begins or reaches a certain point, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of diagnosis, although medical treatment and loss of work certainly will occur at later stages. This provision is designed to capture this small group of significant work-related cases. Although the employer is required to record these illnesses even if they manifest themselves after the employee leaves employment (assuming the illness meets the standards for work-relatedness that apply to all recordable incidents), these cases are less likely to be recorded once the employee has left employment. OSHA believes that work-related cancer, chronic irreversible diseases, fractures of bones or teeth and punctured eardrums are generally recognized as constituting significant diagnoses and, if the condition is work-related, are appropriately recorded at the time of initial diagnosis even if, at that time, medical treatment or work restrictions are not recommended.
...[T]o address the gap in case capture presented by significant injury and illness cases that escape the general recording criteria, OSHA is requiring employers to record cases of chronic, irreversible disease under the Section 1904.7(b)(7) criterion. This means that if long-term workplace exposure to aniline results in a chronic, irreversible liver or kidney disease, the case would be recordable at the time of diagnosis, even if no medical treatment is administered at that time and no time is lost from work. The regulatory text of paragraph 1904.7(b)(7) limits the types of conditions that are recordable, however, to significant diagnosed injury and illness cases, which are defined as cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums.
How Should the Agency Define "Significant" Injury or Illness?
...OSHA believes that the conditions that are required to be recorded under Section 1904.7(b)(7) of the final rule represent significant occupational injuries and illnesses as described in the OSH Act. Some clearly significant injuries or illnesses are not amenable to medical treatment, at least at the time of initial diagnosis. For example, a fractured rib, a broken toe, or a punctured eardrum are often, after being diagnosed, left to heal on their own without medical treatment and may not result in days away from work, but they are clearly significant injuries. Similarly, an untreatable occupational cancer is clearly a significant injury or illness. The second set of conditions identified in paragraph 1904.7(b)(7), chronic irreversible diseases, are cases that would clearly become recordable at some point in the future (unless the employee leaves employment before medical treatment is provided), when the employee's condition worsens to a point where medical treatment, time away from work, or restricted work are needed. By providing for recording at the time of diagnosis, paragraph 1904.7(b)(7) of the final rule makes the significant, work-related condition recordable on discovery, a method that ensures the collection to timely data. This approach will result in better injury and illness data and also is likely to be more straightforward for employers to comply with, since there is no further need to track the case to determine whether, and at what point, it becomes recordable.
The core of the recording requirement codified at Section 1904.7(b)(7) is the employer's determination that a "significant" injury or illness has been diagnosed...In the final rule, OSHA has adopted an approach...focusing on two types of injury and illness: those that may be essentially untreatable, at least in the early stages and perhaps never (fractured and cracked bones, certain types of occupational cancer, and punctured eardrums) and those expected to progressively worsen and become serious over time (chronic irreversible diseases). ...[T]he final rule relies exclusively on the diagnosis of a limited class of injuries and illnesses by a physician or other licensed health care professional.
Clarifying That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work Related
...OSHA wishes to reiterate that any condition that is recordable on the OSHA injury and illness recordkeeping forms must be work-related, and Section 1904.7(b)(7) includes the term "work-related" to make this fact clear. In addition, because the employer will be dealing with a physician or other licensed health care professional, he or she may also be able to consult with the health care professional about the work-relatedness of the particular case. If the employer determines, based either on his or her own findings or those of the professional, that the symptoms are merely arising at work, but are caused by some non-work illness, then the case would not be recorded, under exception (b)(2)(ii) to the work-relatedness presumption at Section 1904.5(b)(2) of the final rule. Similarly, if workplace events or exposures contributed only insignificantly to the aggravation of a worker's preexisting condition, the case need not be recorded under Section 1904.5(a) and Section 1904.5(b)(3) of the final rule.
The provisions of Section 1904.7(b)(7) of the final rule thus meet the objectives of (1) capturing significant injuries and illnesses that do not meet the other general recording criteria of death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness; (2) excluding minor injuries and illnesses; (3) addressing a limited range of disorders; and (4) making it clear that these injuries and illnesses must be work-related before they must be recorded.
The OSHA Bloodborne Pathogens Standard states: "The requirement to establish and maintain a sharps injury log shall apply to any employer who is required to maintain a log of occupational injuries and illnesses under 29 CFR 1904." Therefore, if an employer is exempted from the OSHA recordkeeping rule, the employer does not have to maintain a sharps log. For example, dentists' offices and doctors' offices are not required to keep a sharps log after January 1, 2002.
Yes. You may use the 300 Log to meet the requirements of the sharps injury log provided you enter the type and brand of the device causing the sharps injury on the Log and you maintain your records in a way that segregates sharps injuries from other types of work-related injuries and illnesses, or allows sharps injuries to be easily separated.
(66 FR 5998-6003, Jan. 19, 2001)
Section 1904.8 Additional recording criteria for needlestick and sharps injuries
Section 1904.8 of the final rule deals with the recording of a specific class of occupational injuries involving punctures, cuts and lacerations caused by needles or other sharp objects contaminated or reasonably anticipated to be contaminated with blood or other potentially infectious materials that may lead to bloodborne diseases, such as Acquired Immunodeficiency Syndrome (AIDS), hepatitis B or hepatitis C. The final rule uses the terms "contaminated," "other potentially infectious material," and "occupational exposure" as these terms are defined in OSHA's Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries are of special concern to healthcare workers because they use needles and other sharp devices in the performance of their work duties and are therefore at risk of bloodborne infections caused by exposures involving contaminated needles and other sharps. Although healthcare workers are at particular risk of bloodborne infection from these injuries, other workers may also be at risk of contracting potentially fatal bloodborne disease. For example, a worker in a hospital laundry could be stuck by a contaminated needle left in a patient's bedding, or a worker in a hazardous waste treatment facility could be occupationally exposed to bloodborne pathogens if contaminated waste from a medical facility was not treated before being sent to waste treatment.
Section 1904.8(a) requires employers to record on the OSHA Log all work-related needlestick and sharps injuries involving objects contaminated (or reasonably anticipated to be contaminated) with another person's blood or other potentially infectious material (OPIM). The rule prohibits the employer from entering the name of the affected employee on the Log to protect the individual's privacy; employees are understandably sensitive about others knowing that they may have contracted a bloodborne disease. For these cases, and other types of privacy concern cases, the employer simply enters "privacy concern case" in the space reserved for the employee's name. The employer then keeps a separate, confidential list of privacy concern cases with the case number from the Log and the employee's name; this list is used by the employer to keep track of the injury or illness so that the Log can later be updated, if necessary, and to ensure that the information will be available if a government representative needs information about injured or ill employees during a workplace inspection (see Section 1904.40). The regulatory text of Section 1904.8 refers recordkeepers and others to Section 1904.29(b)(6) through Section 1904.29(b)(10) of the rule for more information about how to record privacy concern cases of all types, including those involving needlesticks and sharps injuries. The implementation section of Section 1904.8(b)(1) defines "other potentially infectious material" as it is defined in OSHA's Bloodborne Pathogens Standard (29 CFR Section 1910.1030, paragraph (b)). Other potentially infectious materials include (i) human bodily fluids, human tissues and organs, and (ii) other materials infected with the HIV or hepatitis B (HBV) virus such as laboratory cultures or tissues from experimental animals. (For a complete list of OPIM, see paragraph (b) of 29 CFR 1910.1030.)
Although the final rule requires the recording of all workplace cut and puncture injuries resulting from an event involving contaminated sharps, it does not require the recording of all cuts and punctures. For example, a cut made by a knife or other sharp instrument that was not contaminated by blood or OPIM would not generally be recordable, and a laceration made by a dirty tin can or greasy tool would also generally not be recordable, providing that the injury did not result from a contaminated sharp and did not meet one of the general recording criteria of medical treatment, restricted work, etc. Paragraph (b)(2) of Section 1904.8 contains provisions indicating which cuts and punctures must be recorded because they involve contaminated sharps and which must be recorded only if they meet the general recording criteria.
Paragraph (b)(3) of Section 1904.8 contains requirements for updating the OSHA 300 Log when a worker experiences a wound caused by a contaminated needle or sharp and is later diagnosed as having a bloodborne illness, such as AIDS, hepatitis B or hepatitis C. The final rule requires the employer to update the classification of such a privacy concern case on the OSHA 300 Log if the outcome of the case changes, i.e., if it subsequently results in death, days away from work, restricted work, or job transfer. The employer must also update the case description on the Log to indicate the name of the bloodborne illness and to change the classification of the case from an injury (i.e., the needlestick) to an illness (i.e., the illness that resulted from the needlestick). In no case may the employer enter the employee's name on the Log itself, whether when initially recording the needlestick or sharp injury or when subsequently updating the record....
The last paragraph (paragraph (c)) of Section 1904.8 deals with the recording of cases involving workplace contact with blood or other potentially infectious materials that do not involve needlesticks or sharps, such as splashes to the eye, mucous membranes, or non-intact skin. The final recordkeeping rule does not require employers to record these incidents unless they meet the final rule's general recording criteria (i.e., death, medical treatment, loss of consciousness, restricted work or motion, days away from work, diagnosis by an HCP) or the employee subsequently develops an illness caused by bloodborne pathogens. The final rule thus provides employers, for the first time, with regulatory language delineating how they are to record injuries caused by contaminated needles and other sharps, and how they are to treat other exposure incidents (as defined in the Bloodborne Pathogens standard) involving blood or OPIM. "Contaminated" is defined just as it is in the Bloodborne Pathogens standard: "Contaminated means the presence or the reasonably anticipated presence of blood or other potentially infectious materials on an item or surface."...
After a review of the many comments in the record on this issue, OSHA has decided to require the recording of all workplace injuries from needlesticks and sharp objects that are contaminated with another person's blood or other potentially infectious material (OPIM) on the OSHA Log. These cases must be recorded, as described above, as privacy concern cases, and the employer must keep a separate list of the injured employees' names to enable government personnel to track these cases....
OSHA finds that these injuries are significant injuries because of the risk of seroconversion, disease, and death they pose (see the preamble to the OSHA Bloodborne Pathogens Standard at 56 FR 64004)....
OSHA disagrees with those commenters who argued that the Section 1904.8 recording requirement would be duplicative or redundant with the requirements in the Bloodborne Pathogens standard (29 CFR 1910.1030). That standard requires the employer to document the route(s) of exposure and the circumstances under which the exposure incident occurred, but does not require that it be recorded on the Log (instead, the standard requires only that such documentation be maintained with an employee's medical records). The standard also has no provisions requiring an employer to aggregate such information so that it can be analyzed and used to correct hazardous conditions before they result in additional exposures and/or infections. The same is true for other medical records kept by employers: they do not substitute for the OSHA Log or meet the purposes of the Log, even though they may contain information about a case that is also recorded on the Log.
OSHA is requiring only that lacerations and puncture wounds that involve contact with another person's blood or other potentially infectious materials be recorded on the Log. Exposure incidents involving exposure of the eyes, mouth, other mucous membranes or non-intact skin to another person's blood or OPIM need not be recorded unless they meet one or more of the general recording criteria, result in a positive blood test (seroconversion), or result in the diagnosis of a significant illness by a health care professional. Otherwise, these exposure incidents are considered only to involve exposure and not to constitute an injury or illness. In contrast, a needlestick laceration or puncture wound is clearly an injury and, if it involves exposure to human blood or other potentially infectious materials, it rises to the level of seriousness that requires recording. For splashes and other exposure incidents, the case does not rise to this level any more than a chemical exposure does. If an employee who has been exposed via a splash in the eye from the blood or OPIM of a person with a bloodborne disease actually contracts an illness, or seroconverts, the case would be recorded (provided that it meets one or more of the general recording criteria).
...The final recordkeeping rule addresses this issue by prohibiting the entry of the employee's name on the OSHA 300 Log for injury and illness cases involving blood and other potentially infectious material. Further, by requiring employers to record all needlestick and sharps incidents, regardless of the seroconversion status of the employee, coworkers and representatives who have access to the Log will be unable to ascertain the disease status of the injured worker....
OSHA believes that hepatitis C cases should, like other illness cases, be tested for recordability using the geographic presumption that provides the principal rationale for determining work-relatedness throughout this rule....
PART 1910.1030 - OSHA Bloodborne Pathogens Standard.
Section 1910.1030(h)(5) Sharps injury log.
The employer shall establish and maintain a sharps injury log for the recording of percutaneous injuries from contaminated sharps. The information in the sharps injury log shall be recorded and maintained in such manner as to protect the confidentiality of the injured employee. The sharps injury log shall contain, at a minimum:
(A) The type and brand of device involved in the incident,
(B) The department or work area where the exposure incident occurred, and
(C) An explanation of how the incident occurred.
The requirement to establish and maintain a sharps injury log shall apply to any employer who is required to maintain a log of occupational injuries and illnesses under 29 CFR 1904.
(66 FR 6003, Jan. 19, 2001)
Section 1904.9 Additional recording criteria for cases involving medical removal under OSHA standards.
The final rule, in paragraph 1904.9(a), requires an employer to record an injury or illness case on the OSHA 300 Log when the employee is medically removed under the medical surveillance requirements of any OSHA standard. Paragraph 1904.9(b)(1) requires each such case to be recorded as a case involving days away from work (if the employee does not work during the medical removal) or as a case involving restricted work activity (if the employee continues to work but in an area where exposures are not present.) This paragraph also requires any medical removal related to chemical exposure to be recorded as a poisoning illness.
Paragraph 1904.9(b)(2) informs employers that some OSHA standards have medical removal provisions and others do not. For example, the Bloodborne Pathogen Standard (29 CFR 1910.1030) and the Occupational Noise Standard (29 CFR 1910.95) do not require medical removal. Many of the OSHA standards that contain medical removal provisions are related to specific chemical substances, such as lead (29 CFR 1901.1025), cadmium (29 CFR 1910.1027), methylene chloride (29 CFR 1910.1052), formaldehyde (29 CFR 1910.1048), and benzene (29 CFR 1910.1028).
Paragraph 1904.9(b)(3) addresses the issue of medical removals that are not required by an OSHA standard. In some cases employers voluntarily rotate employees from one job to another to reduce exposure to hazardous substances; job rotation is an administrative method of reducing exposure that is permitted in some OSHA standards. Removal (job transfer) of an asymptomatic employee for administrative exposure control reasons does not require the case to be recorded on the OSHA 300 Log because no injury or illness -- the first step in the recordkeeping process -- exists. Paragraph 1904.9(b)(3) only applies to those substances with OSHA mandated medical removal criteria. For injuries or illnesses caused by exposure to other substances or hazards, the employer must look to the general requirements of paragraphs 1910.7(b)(3) and (4) to determine how to record the days away or days of restricted work.
The provisions of Section 1904.9 are not the only recording criteria for recording injuries and illnesses from these occupational exposures. These provisions merely clarify the need to record specific cases, which are often established with medical test results, that result in days away from work, restricted work, or job transfer. The Section 1904.9 provisions are included to produce more consistent data and provide needed interpretation of the requirements for employers. However, if an injury or illness results in the other criteria of Section 1904.7 (death, medical treatment, loss of consciousness, days away from work, restricted work, transfer to another job, or diagnosis as a significant illness or injury by a physician or other licensed health care professional) the case must be recorded whether or not the medical removal provisions of an OSHA standard have been met...
...The medical removal provisions of each standard were set using scientific evidence established in the record devoted to that rulemaking. OSHA takes care when setting the medical removal provisions of standards to ensure that these provision reflect a material harm, i.e., the existence of an abnormal condition that is non-minor and thus worthy of entry in the OSHA injury and illness records...
OSHA finds that cases involving a mandatory medical removal are cases that involve serious, significant, disabling illnesses resulting in restriction of work and transfer to another job, or both. These medical restrictions result either in days away from work or days when the worker can work but is restricted from performing his or her customary duties...
As stated previously, a "diagnosis of substantial impairment of a bodily function" is not required for a case to meet OSHA recordkeeping criteria, nor is it a limitation to recordability under the OSH Act. Many injuries and illnesses meet the recording criteria of the Act but lack diagnosis of a substantial impairment of a bodily function. Although the medical removal provisions are included in OSHA's standards to encourage participation in the medical program by employees and to prevent progression to serious and perhaps irreversible illness, they also reflect illnesses caused by exposures in the workplace and are thus themselves recordable. The workers are being removed not only to prevent illness, but to prevent further damage beyond what has already been done. Thus OSHA does not agree that medical removal measures are purely preventive in nature; instead, they are also remedial measures taken when specific biological test results indicate that a worker has been made ill by workplace exposures.
OSHA has therefore included section 1904.9 in the final rule to provide a uniform, simple method for recording a variety of serious disorders that have been addressed by OSHA standards. The Section 1904.9 provisions of the final rule cover all of the OSHA standards with medical removal provisions, regardless of whether or not those provisions are based on medical tests, physicians' opinions, or a combination of the two. Finally, by relying on the medical removal provisions in any OSHA standard, section 1904.9 of the final rule establishes recording criteria for future standards, and avoids the need to amend the recordkeeping rule whenever OSHA issues a standard containing a medical removal level.
Question 10-1. If an employee suffers a Standard Threshold Shift (STS) in only one ear, may the employer revise the baselines for both ears?
No. A Standard Threshold Shift, or STS, is defined in the occupational noise exposure standard at 29 CFR 1910.95(g)(10)(i) as a change in hearing threshold, relative to the baseline audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz (Hz) in one or both ears. The employer is permitted only to revise the baseline in the ear where the employee suffered an STS change in hearing threshold.
Question 10-2. Which baseline is used to determine if a recordable Standard Threshold Shift (STS) has occurred this year?
Employers should use the same baseline that they would use to comply with OSHA's Noise Standard, Part 1910.95. If the employer chose to revise an employee's baseline due to a previous STS, then the employer would use the same revised baseline when determining recordability under section 1904.10 of the recordkeeping regulation.
Question 10-3. If an employee experienced a recordable hearing loss case, where would the employer record the case on the OSHA 300 Log?
Prior to 2004, employers should record work-related hearing loss cases according to the instructions included with the Recordkeeping Forms. If the loss is associated with an event, such as acoustic trauma (e.g., an explosion), it would be recorded as an injury with a check mark in column (M)(1). If the loss is not an injury, it would be recorded as an illness, with a check mark in the all other illness column. Beginning in January 2004, employers must record all hearing loss cases in the separate hearing loss column (M)(5).
Question 10-4 (This question was added to the directive on 1/12/2012). What rules must an employer ensure that a physician or other licensed health care professional use to make a determination that a hearing loss case is not work-related under section 1904.10(b)(6)?
Physician or other licensed health care professional (PLHCP) must follow the rules set out in 1904.5 to determine if the hearing loss is work-related. If an event or exposure in the work environment either caused or contributed to the hearing loss, or significantly aggravated a pre-existing hearing loss, the physician or licensed health care professional must consider the case to be work related. It is not necessary for work to be the sole cause, or the predominant cause, or even a substantial cause of the hearing loss; any contribution from work makes the case work-related. The employer is responsible for ensuring that the PLHCP applies the analysis in Section 1904.5 when evaluating work-related hearing loss, if the employer chooses to rely on the PLHCP's opinion in determining recordability.
66 FR 6004-6012, Jan. 19, 2001)
Section 1904.10 Recording criteria for cases involving occupational hearing loss
The recording criteria employers should use to record occupational hearing loss on the OSHA recordkeeping forms have been an issue since OSHA first proposed to require hearing conservation programs for general industry employers (39 FR 37775, October 24, 1974). Job-related hearing loss is a significant occupational safety and health issue because millions of workers are employed in noisy workplaces and thousands of workers experience noise-induced hearing loss each year. Noise-induced hearing loss is a serious and irreversible condition that may affect the safety and well-being of workers for the rest of their lives...
The changes made to the OSHA 300 form improve the quality of the data collected nationally on this important occupational condition by providing consistent hearing loss recording criteria, thus improving the consistency of the hearing loss statistics generated by the BLS occupational injury and illness collection program. National hearing loss statistics are also improved because OSHA has added a column to the OSHA 300 Log that requires employers, for the first time, to separately collect and summarize data specific to occupational hearing loss. These changes mean that the BLS will collect hearing loss data in future years, both for cases with and without days away from work, which will allow for more reliable published statistics concerning this widespread occupational disorder...
If the employee is not covered by the 29 CFR 1910.95 noise standard, OSHA rules do not require the employer to administer baseline or periodic audiograms, and the 1904 rule does not impose any new requirements for employers to obtain baseline information where it is not already required. However, some employers conduct such tests and acquire such information for other reasons. If the employer's workplace is a high noise environment (i.e., has noise levels that exceed 85 dBA) and the employer has the relevant audiogram information for an employee, the employer must record any identified work-related hearing loss equal to or greater than an OSHA defined STS on the log. This means that an employer in the construction industry, for example, who is aware that his or her work activities regularly generate high noise levels and who has audiometric data on the hearing level of the employees exposed to those noise levels must record on the Log any [recordable hearing loss] detected in those workers. OSHA believes that this approach to the recording of work-related hearing loss cases among these workers not covered by the noise standard is appropriate because it is reasonable, protective, and administratively straightforward...
Paragraphs 1904.10(b)(3) and (4) of the final rule allow the employer to take into account the hearing loss that occurs as a result of the aging process and to retest an employee who has an STS on an audiogram to ensure that the STS is permanent before recording it. The employer may correct the employee's audiogram results for aging, using the same methods allowed by the OSHA Noise standard (29 CFR 1910.95). Appendix F of Section 1910.95 provides age correction for presbycusis (age-induced hearing loss) in Tables F-1 (for males) and F-2 (for females). Further, as permitted by the Noise standard, the employer may obtain a second audiogram for employees whose first audiogram registers an STS if the second audiogram is taken within 30 days of the first audiogram. The employer may delay recording of the hearing loss case until the STS is confirmed by the second audiogram and is, or course, not required to record the case if the second audiogram reveals that the STS was not permanent...
Paragraph 1904.10(b)(5) of the final rule establishes how employers are to determine the work-relatedness of hearing loss cases. This paragraph specifies that, in accordance with the recordkeeping rule's definition of work-relationship, hearing loss is presumed to be work-related for recordkeeping purposes if the employee is exposed to noise in the workplace at an 8-hour time-weighted average of 85 dB(A) or greater, or to a total noise dose of 50 percent, as defined in 29 CFR 1910.95. (Noise dose is defined as the amount of actual employee exposure to noise relative to the permissible exposure limit for noise; a dose greater than 100% represents exposure above the limit.) For hearing loss cases where the employee is not exposed to this level of workplace noise, or where the employee is not covered by the Occupational Noise standard, the employer must use the rules set out in § 1904.5 to determine if the hearing loss is to be considered work related for recordkeeping purposes.
Paragraph 1904.10(b)(6) allows the employer not to record a hearing loss case if physician or other licensed health care professional determines that the hearing loss is not work-related or has not been aggravated by occupational noise exposure. This provision is consistent with the Occupational Noise standard, and it allows the employer not to record a hearing loss case that is not related to workplace events or exposures; examples of such cases are hearing loss cases occurring before the employee is hired or those unrelated to workplace noise.
The recordkeeping provisions in section 1904.10 of the final recordkeeping rule thus match the provisions of the Occupational Noise standard by (1) covering the same employers and employees (with the exception of cases occurring among employees not covered by that standard whose employers have audiometric test results and high-noise workplaces); (2) using the same measurements of workplace noise; (3) using a common definition of hearing loss, i.e., the STS; (4) using the same hearing loss measurement methods; (5) using the same definitions of baseline audiogram and revised baseline audiogram; (6) using the same method to account for age correction in audiogram results; and (7) allowing certain temporary threshold shifts to be set aside if a subsequent audiogram demonstrates that they are not permanent or a physician or other licensed health care professional finds they are not related to workplace noise exposure...
As is the case for many OSHA rules, the 1981 Noise standard was challenged in the courts, which stayed several provisions. In 1983, OSHA revised the hearing conservation amendment to revoke many of the provisions stayed by the court, lift an administrative stay implemented by OSHA, and make technical corrections (48 FR 9738). One of those provisions involved the definition of STS, which was renamed a "standard" rather than "significant" threshold shift to help differentiate the two separate methods used to calculate the STS in the 1981 and 1983 rules. Al-though OSHA changed the calculation method used to establish an STS in 1983, the role and importance of the STS concept in the context of a hearing conservation program was unchanged. The main reason for changing the definition of STS in the 1983 standard was to simplify the original calculation and address the concerns of employers and audiology professionals who wished to avoid using a computer to calculate an STS. The standard requires employers to take follow-up actions when an STS is identified, notify the affected employee, evaluate and refit hearing protectors, retrain the employee, and, if necessary, refer the employee for medical evaluation...
...In the 1981 preamble to the Hearing Conservation Amendment, OSHA found that a 10 dB shift in hearing threshold is significant because it is outside the range of audiometric error and "it is serious enough to warrant prompt attention" (46 FR 4144). The 1983 preamble reinforces these findings. It states that:
Correctly identifying standard threshold shifts will enable employers and employees to take corrective action so that the progression of hearing loss may be stopped before it becomes handicapping. Moreover, a standardized definition of STS will ensure that the protection afforded to exposed employees is uniform in regard to follow-up procedures. * * *
OSHA reaffirms its position on the ideal criterion for STS which was articulated in the January 16, 1981 promulgation (see 46 FR 4144). The criterion must be sensitive enough to identify meaningful changes in hearing level so that follow-up procedures can be implemented to prevent further deterioration of hearing but must not be so sensitive as to pick up spurious shifts (sometimes referred to as "false positives"). In other words, the criterion selected must be outside the range of audiometric error (48 FR 9760).
OSHA believes that many of the reasons stated in the 1983 preamble make the STS an appropriate recording criterion for recordkeeping purposes. For example, employers are familiar with the STS definition, which is also sensitive enough to identify a non-minor change in hearing. Use of the STS also reduces the confusion that would arise were OSHA to require employers to maintain two baselines: one required by the Occupational Noise standard and one required for recordkeeping purposes...
OSHA recognizes that using the correction for presbycusis when interpreting audiogram results is controversial among experts in the field of audiology and that NIOSH has developed a new criteria document on occupational noise exposure ("Criteria for a Recommended Standard; Occupational Noise Exposure, Revised Criteria, 1998; U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health; June 1998) which at present does not recommend applying presbycusis correction values to actual employee audiometric data. However, since the Occupational Noise standard itself permits employers to adjust the interpretation of audiograms for the effects of aging, it would be inconsistent and administratively complex to prohibit this practice in the recordkeeping rule. Accord-ingly, Section 1904.10(b)(3) allows the employer to adjust for aging when determining the recordability of hearing loss. The adjustment is made using Tables F-1 or F-2, as appropriate (table F-1 applies to men and F-2 applies to women), in Appendix F of 29 CFR 1910.95. However, use of the correction for aging is not mandatory, just as it is not mandatory in the Noise standard itself...
...[I]n the final rule, at paragraph 1904.10(b)(4), employers are permitted, if they choose, to retest the employee to confirm or disprove that an STS reflected on the first audiogram was attributable to a cold or some other extraneous factor and was not persistent. If the employer elects to retest, the employer need not record the case until the retest is completed. If the retest confirms the hearing loss results, the case must be recorded within 7 calendar days. If the retest refutes the original test, the case is not recordable, and the employer does not have to take further action for OSHA recordkeeping purposes. The 30 day limit in the final recordkeeping rule is consistent with the 30 day retest provision of Section 1910.95(g)(5)(ii), which allows the employer to obtain a retest within 30 days and consider the results of the retest as the annual audiogram if the STS recorded on the first test is determined not to persist.
OSHA believes that the 30 day retest option allows the employer to exclude false positive results and temporary threshold shifts from the data while ensuring the timely and appropriate recording of true positive results. Adding language to the final recordkeeping rule to specify different procedures, depending on whether the employer chooses to conduct a re-test within 30 days, adds some complexity to the final rule, but OSHA finds that this added complexity is appropriate because it will reduce burden for some employers and improve the accuracy of the hearing loss data...
...For workers who are exposed to the noise levels that require medical surveillance under Section 1910.95 (an 8-hour time-weighted average of 85 dB(A) or greater, or a total noise dose of 50 percent), it is highly likely that workplace noise is the cause of or, at a minimum, has contributed to the observed STS. It is not necessary for the workplace to be the sole cause, or even the predominant cause, of the hearing loss in order for it to be work-related. Because the final recordkeeping rule relies upon the coverage of the Occupational Noise standard, it is also not necessary for OSHA to include a minimum time of exposure provision. The Occupational Noise standard does not require a baseline audiogram to be taken for up to six months after the employee is first exposed to noise in the workplace, and the next annual audiogram would not be taken until a year after that.
For any worker to have an applicable change in audiogram results under the Occupational Noise standard, the worker would have been exposed to levels of noise exceeding 85 dB(A) for at least a year, and possibly even for 18 months.
In addition, the provisions allowing for review by a physician or other licensed health care professional allow for the exclusion of hearing loss cases that are not caused by noise exposure, such as off the job traumatic injury to the ear, infections, and the like. OSHA notes that this presumption is consistent with a similar presumption in OSHA's Occupational Noise standard (in both cases, an employer is permitted to rebut this presumption if he or she suspects that the hearing loss shown on an employer's audiogram in fact has a medical etiology and this is confirmed by a physician or other licensed health care professional)...
Shifts in hearing must be calculated separately for each ear, in accordance with the requirements of Section 1910.95. However, if a single audiogram reflects a loss of hearing in both ears, only one hearing loss case must be entered into the records. The issue of revising baseline audiograms to evaluate the extent of future hearing loss pertains to a hearing loss case that has been entered on the Log. If a single-ear STS loss has been recorded on the Log, then the baseline audiogram should be adjusted for that ear, and that ear only. If an STS affecting both ears has been recorded on the Log, then the baseline audiogram may be revised and applied to both ears. This means that there should be no cases where the baseline audiogram has been adjusted and the case has not been recorded on the Log.
[67 FR 44038, July 1, 2002]
II. Recording Occupational Hearing Loss Cases
Section 1904.10 of the January 19, 2001 final recordkeeping rule required employers to record, by checking the "hearing loss" column on the OSHA 300 Log, all cases in which an employee's hearing test (audiogram) revealed that a Standard Threshold Shift (STS) in hearing acuity had occurred. An STS was defined as "a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels or more at 2000, 3000 and 4000 Hertz (Hz) in one or both ears." The recordkeeping rule itself does not require the employer to test employee's hearing. However, OSHA's occupational noise standard (29 CFR 1910.95) requires employers in general industry to conduct periodic audiometric testing of employees when employees' noise exposures are equal to, or exceed, an 8-hour time-weighted average of 85dBA. Under the provisions of Section 1910.95, if such testing reveals that an employee has sustained a hearing loss equal to an STS, the employer must take protective measures, including requiring the use of hearing protectors, to prevent further hearing loss. Employers in the construction, agriculture, oil and gas drilling and servicing, are not covered by Section 1910.95, and therefore are not required by OSHA to provide hearing tests. If employers in these industries voluntarily conduct hearing tests they are required to record hearing loss cases meeting the recording criteria set forth in the final Section 1904.10 rule.
[67 FR 77169, Dec.17, 2002]
D. Other Hearing Loss Issues
The preamble to the final rule stated that employers in the shipbuilding industries are not covered by OSHA's noise standard Section 1910.95 and are therefore not required to perform audiometric tests. (67 FR 44038, 44040). This statement was an error. OSHA Directive STD 0.2 Identification of General Industry Safety and Health Standards (29 CFR 1910) Applicable to Shipyard Work specifically states that employers in the shipbuilding industry that are covered by the 29 CFR part 1915 Standards are required to comply with a number of 29 CFR Part 1910 standards, including the Section 1910.95 requirements for occupational noise.
[67 FR 44038-44044, July 1, 2002]
II. Recording Occupational Hearing Loss Cases (continued)
One of the major issues in the recordkeeping rulemaking was to determine the level of occupational hearing loss that constitutes a health condition serious enough to warrant recording. This was necessary because the final rule no longer requires recording of minor or insignificant health conditions that do not result in one or more of the general recording criteria such as medical treatment, restricted work, or days away from work (See, e.g., 66 FR 5931). In its 1996 Federal Register notice OSHA proposed a requirement to record hearing loss averaging 15 dB at 2000, 3000 and 4000 Hz in one or both ears (61 FR 4040). OSHA adopted the lower 10-dB threshold in the final rule based in part upon comments that "(a)n age-corrected STS is a large hearing change that can affect communicative competence" (66 FR 6008).
Following consideration of the comments received in response to the July 3, 2001 proposal to modify the hearing loss recording criteria, OSHA has decided to require employers to record audiometric results indicating a Standard Threshold Shift (STS) only when such STS cases also reflect a total hearing level of at least 25 dB from audiometric zero. The STS calculation uses audiometric results averaged over the frequencies 2000, 3000 and 4000 Hz, using the original baseline and annual audiograms required by the OSHA noise standard Section 1910.95. The rule also allows the employer to adjust the employee's audiogram results used to determine an STS to subtract hearing loss caused by aging, allows the employer to retest the workers' hearing to make sure the hearing loss is persistent, and allows the employer to seek and follow the advice of a physician or licensed health care professional in determining whether or not the hearing loss was work-related.
The approach adopted in the final rule has several advantages. By using the STS definition from the OSHA noise standard Section 1910.95, the Section 1904.10 regulation uses a sensitive measure of hearing loss that has occurred while the employee is employed by his or her current employer. By requiring all recorded cases of hearing loss to exceed 25 dB from audiometric zero, the regulation assures that all recorded hearing losses are significant illnesses.
The hearing loss recording level is also compatible with the final rule's definition of injury or illness, "an abnormal condition or disorder" (Section 1904.46). Various scales used to rate hearing loss consider hearing levels less than 25 dB to be within the "normal range" (American Medical Association Guidelines to Evaluation of Material Impairment, American Academy of Family Physicians, Audiology Awareness Campaign). The recording level is also compatible with the definition of material impairment used by OSHA and MSHA in the development of standards for occupational noise exposure (64 FR 49548, 48 FR 9738).
The hearing loss recording requirements in Section 1904.10 differ from the requirements of the OSHA noise standard (Section 1910.95) because under the noise standard the employer is required to take certain actions (employee notification, providing hearing protectors or refitting of hearing protectors, etc.) for all 10-db standard threshold shifts while the part 1904 rule only requires the recording of STSs that also exceed the total 25-db level. OSHA believes that this is an appropriate policy, because 10-db shifts in hearing at higher levels (above 25 dB) are more significant...
When audiometric testing is done, test tones are presented at various sound levels, usually increasing or decreasing in 5-dB steps. The employee is asked to respond whenever a tone is heard, with the goal being finding the lowest level at which the employee can consistently hear. The standard measurement for measuring hearing level is decibels, a logarithmic scale. For the first increase in hearing level from 0 to 10 dB, the sound intensity increases 10 fold. The next 10 dB is a 100-fold increase. By the time a person's hearing level changes from 0 to 30 dB hearing level, he or she needs 1,000 times more sound intensity to just barely hear.
Although the part 1904 recordkeeping regulation and the Section 1910.95 noise standard treat the STS cases differently, this has no effect on the noise standard's requirements and does not have any effect on the requirement for employers to comply with Section 1910.95. When employers detect work-related STS cases, they are required to take all of the follow-up actions required by the noise standard.
Additionally, the STS measure uses existing measurements and calculations employers are already using to comply with the OSHA noise standard, resulting in less paperwork burden for employers covered by both rules. Employers are required to take one additional step to determine if the STS has also resulted in a total hearing level of 25 dB or more, and if so, to record it. The position taken in Section 1904.10 provides a reasonable compromise between the commenters' highly polarized views on the proper recording level. The final rule's hearing loss recording provisions provide a reasonable "middle ground" solution to reconcile the differences between a highly sensitive measure of hearing loss (all 10-db shifts) and increasingly insensitive measures (15, 20, or 25-db shifts).
The approach used in this final rule is a newly developed alternative that was not considered in the January 2001 rulemaking because none of the commenters to the 1996 proposed rule suggested it...
OSHA believes that the Section 1904.10 requirements will improve the nation's statistics on occupational hearing loss and that more hearing loss cases will be entered on employers' OSHA 300 Logs. However, OSHA recognizes that the new requirements may not result in comprehensive statistics for occupational hearing loss. Employees may experience significant hearing loss in industries where audiometric testing is not required (construction, agriculture, oil and gas drilling and servicing), and is not provided voluntarily by the employer, and thus is never be entered into the records. Likewise, an employee may experience gradual hearing loss while employed by several employers, but never work for the same employer long enough to allow a recordable STS to be captured. As to the effect on trend analysis, caution must be used when comparing Section 1904.10 hearing loss data that span the effective date of this rule. The new hearing loss recording rule will result in the recording of additional cases of hearing loss, not as a result of a change in the number of workers who experience hearing loss, but simply because of the recordkeeping change.
OSHA finds that recording only 25-dB shifts from the employee's baseline audiogram is not an appropriate policy. If an employee had significant hearing loss before being hired by the employer, additional hearing loss would not be recorded until well beyond the point of disability. This would not conform to the requirements of section 24 of the Act directing the Secretary to "[c]ompile accurate statistics on work injuries and illnesses which shall include all disabl-ing, serious, or significant injuries and illnesses * * *" (emphasis added) (29 U.S.C. 673). The recording of 25-dB shifts in hearing acuity, measured from the employee's original baseline audiogram would clearly understate the true incidence of work-related hearing loss. Likewise, if the part 1904 regulation were to require only the recording of 15 or 20-dB shifts, or categorically exclude the first STS case the rule would exclude many legitimate and serious hearing loss cases that should rightfully be entered into the records and the Nation's injury and illness statistics. This approach would be especially deficient at capturing hearing loss in those employees who change employers several times during their working lives...
OSHA does not agree with the commenters who argued that because the function of the OSHA standards and regulations, including the part 1904 regulation, is to protect workers, worker protection would be compromised by any policy other than the recording of all STS cases. OSHA encourages employers and employees to use the OSHA injury and illness records to improve workplace safety and health conditions, and this is one of the functions of the Part 1904 records. However, this is not the only function of the records. They are also used to generate injury and illness statistics for the Nation and for individual workplaces. They are used by OSHA representatives to identify hazards during workplace inspections, and are collected by OSHA to target its intervention efforts to more hazardous worksites (See 66 FR 5916-5917). As stated in the 2001 rulemaking, "[n]o new protections are being provided by the recordkeeping rule". Further, the OSH Act does not require the recording of all injuries and illnesses and specifically excludes certain minor injury and illness cases. This exclusion, which is discussed in the preamble to the January 19, 2001 final rule, applies to both injuries and illnesses, including hearing loss (See 66 FR 5931-5932). It is thus entirely appropriate for the recordkeeping rule to exclude certain minor illness cases while capturing more serious cases.
The hearing loss recording requirements of Section 1904.10 will not deprive employers and employees of information about noise hazards or diminish workers' protection against the hazards of noise in the workplace. The occupational noise exposure standard requires that employees in general industry be tested for hearing loss when noise exposure exceeds an 8-hour time-weighted average of 85dB, and that employees be informed, in writing, if a 10-dB shift has occurred. The audiometric test records must be retained for the duration of the affected employee's employment. (See 29 CFR 1910.95(g), (m)). The noise standard also specifies the protective measures to be taken to prevent further hearing loss for employees who have experienced a 10-dB shift, including the use of hearing protectors and referral for audiological evaluation where appropriate. (See 29 CFR 1910.95(g)(8)). These requirements, which apply without regard to the recording criteria in the recordkeeping rule, will protect workers against the hazards of noise. The modified requirements of Section 1904.10 will therefore not deprive employers and workers of the means to detect and prevent hearing loss.
Finally, section 4(b)(4) of the OSH Act provides that "[n]othing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." 29 U.S.C. 653(b)(4). Accordingly, the OSHA recordkeeping rule will have no legal effect on state workers' compensation systems. There is no evidence that the states have modified their systems to conform to OSHA's previous hearing loss recording policies; in fact, the states are far from uniform in their treatment of occupational hearing loss. There-fore, OSHA does not expect the 1904 regulation to have any effect on state workers' compensation in the future.
...OSHA agrees ... that the recordkeeping rule should not take any actions to address the issues of audiometric variability, and finds that there is no need to increase the recording loss threshold to 15 or 20 dB to account for variability. The OSHA noise standard includes provisions that standardize audiometric testing protocols. The requirements in Section 1910.95 (g) Audiometric Testing Program, Section 1910.95 (h) Audiometric Test Requirements, Mandatory Appendix C to Section 1910.95 Audiometric Measuring Instruments, Mandatory Appendix D to Section 1910.95 Audiometric Test Rooms, and Mandatory Appendix E to Section 1910.95 Acoustic Calibration of Audiometers, and the incorporated provisions of American Standard Specification for Audiometers S3.6-1969 provide standardized methodologies for conducting hearing tests designed to assure, as far as possible, that audiograms are accurate...
It should be noted that it is impossible to eliminate audiometric errors in their entirety. Any recording level, no matter how it is set, will be subject to some level of false positive and false negative errors. However, OSHA believes that the audiometric testing requirements of Section 1910.95, if followed, will provide reasonably accurate audiometric data for the administration of the OSHA noise standard, and for the recording of occupational hearing loss. As . . . commented: "(f)ollowing a standardized testing protocol (using 29 CFR 1910.95), and including adjustments for age and the use of a retest in 30 days, has provided accurate, consistent results." OSHA believes that the provisions allowing the employer to age adjust audiograms, seek advice from a physician or other licensed health care professional for determining work-relationship, retest within 30 days, and remove cases later found not to be persistent provide reasonable checks against false positive results being recorded on the 300 Log.
The final rule carries forward the January 19, 2001 rule's conceptual framework allowing, but not requiring, the employer to age adjust an employee's annual audiogram when determining whether or not a 10-dB shift in hearing acuity has occurred...
While the final rule allows the employer to agecorrect the STS portion of the recording criteria, there is no allowance for age correction for determining a 25-dB hearing level. The AMA Guides specifically state that total hearing loss should not be age adjusted, and there is no recognized consensus method for age adjusting a single audiogram. The method used in Appendix F of Section 1910.95 is designed to age correct STS, not absolute hearing ability. The 25-dB criteria is used to assure the existence of a serious illness, and reflects the employee's overall health condition, regardless of causation. Age correcting the STS will provide adequate safeguards against recording age corrected hearing loss. Therefore, it would be inappropriate and unnecessary to age correct the 25- dB hearing level.
... The OSHA noise standard addresses the issue of temporary hearing losses by allowing the employer to retest the employee's hearing within 30 days (1910.95(g)(7)(ii)). The 2001 rule adopted the same 30 day retest option at Section 1904.10(b)(4) by allowing the employer to delay recording if a retest was going to be performed in the next 30 days.
... OSHA has decided not to allow a longer retesting period. A longer retesting period would increase the likelihood that the employer would lose track of the case and therefore inadvertently fail to record the case. These errors would have a detrimental effect on the accuracy of the records and run counter to OSHA's goal of improving the quality of the injury and illness data. The Agency also believes that using different time periods for retesting in the part 1904 and Section 1910.95 rules would result in increased confusion for employers.
The Agency has also rejected the suggestion that all hearing loss cases must be confirmed prior to recording them. Waiting for one year or longer to record an occupational hearing loss would move the recording to a year in which the original hearing loss was not initially discovered, would be administratively more complex for employers, and would have a detrimental effect on the hearing loss data. Many legitimate hearing loss cases could go unrecorded simply because the employee did not receive a subsequent audiogram due to job changes or some other circumstance that might occur before the next annual audiogram required by the noise standard...
... The OSHA noise standard at Section 1910.95(g)(3), requires that:
Audiometric tests shall be performed by a licensed or certified audiologist, otolaryngologist, or other physician, or by a technician who is certified by the Council of Accreditation in Occupational Hearing Conservation, or who has satisfactorily demonstrated competence in administering audiometric examinations, obtaining valid audiograms, and properly using, maintaining and checking calibration and proper functioning of the audiometers being used. A technician who operates microprocessor audiometers does not need to be certified. A technician who performs audiometric tests must be responsible to an audiologist, otolaryngologist or physician.
Because the noise standard already requires audiograms to be conducted by, or under the supervision of, a qualified professional, subsequent audiograms that may refute the persistence of a recorded hearing loss will be reviewed by the appropriate professional. The Section 1904.10 rule simply cross-references the need for the audiograms to be obtained pursuant to the requirements of Section 1910.95, so there is no need for the Section 1904.10 rule to repeat the review requirement. ...[T]he rule does not require the employer to maintain documentation concerning the removal of cases. Section 1910.95(m)(2) of the noise standard requires the employer to keep records of all audiometric tests that are performed, and those records will be available, should they be needed for future reference. As a result, there is no need to add a duplicative paperwork burden in the Section 1904.10 rule. Therefore, Section 1904.10(b)(4) states that "If subsequent audiometric testing indicates that an STS is not persistent, you may erase or line-out the recorded entry". OSHA has added this additional regulatory language to minimize the recording of temporary hearing loss cases while capturing complete data on the incidence of hearing loss disorders.
...OSHA has decided to continue to use the frequencies used in the Section 1910.95 OSHA noise standard (2000, 3000, and 4000 Hz). While "most" communication occurs at lower frequencies, these are clearly audible frequencies where some speech occurs, and where hearing loss can have a significant impact on workers' lives outside of verbal communication. Using these frequencies reduces the burden on employers that would be created by requiring separate calculations of audiometric results, and, as ...stated "(w)ith regard to the early effects of noise exposure, it seems reasonable to extend the definition across the standard shift frequencies 2000, 3000, and 4000 Hz" (Ex. 3-62).
Baseline Reference and Revision of Baseline
...The two-part test for recording that is being adopted in the final rule uses the baseline audiogram as the reference point for determining whether or not the employee has had a change in hearing while employed by his or her current employer, and then uses audiometric zero as the reference point for determining the overall hearing ability of the affected employee. OSHA agrees that the employee's baseline audiogram is a superior reference point for measuring a change of hearing, a Standard Threshold Shift. Using the baseline audiogram taken upon employment reduces the effect of any prior hearing loss the employee may have experienced, whether it is non-occupational hearing loss or occupational hearing loss caused by previous employment. Therefore, the final rule uses the employee's original baseline audiogram as the reference for the STS component of an initial hearing loss case, and uses the revised baseline audiogram from that initial case as the reference for future cases.
The 25-dB total hearing level component of an OSHA recordable hearing loss uses a reference of audiometric zero. This portion of the recording criteria is used to assure that the employee's total hearing level is beyond the normal range of hearing, so it does not exclude hearing loss due to non-work causes, prior employment, or any other cause. The measurement simply reflects the employee's current hearing ability as reflected in the most recent audiogram. This comparison to audiometric zero is a simple matter, because audiometers are designed to provide results that are referenced to audiometric zero. The hearing level at each frequency is oftentimes printed by the equipment, so there is rarely a need to perform manual calculations...
[67 FR 77169, Dec.17, 2002]
D. Other Hearing Loss Issues
...The second issue involves the computation of a Standard Threshold Shift (STS), which is one part of the two-part recording criteria recently published (67 FR 44037-44048). (The case must also reflect a 25 dB hearing level compared to audiometric zero.) The STS computation is to be made in accordance with the Occupational Noise Exposure Standard 1910.95. As OSHA stated in the preamble to the July 1, 2002 rulemaking, the Section 1904.10 regulation "[u]ses existing measurements employers are already using to comply with the OSHA noise standard, resulting in less paperwork burden for employers covered by both rules" (67 FR 44040). Under 1910.95, the employee's current audiogram is compared to the employee's baseline audiogram, which may be the original audiogram taken when the employee was first placed in a hearing conservation program, or the revised baseline audiogram allowed by the Occupational Noise Exposure standard. Paragraph 1910.95(g)(9) of the noise rule states:
(9) Revised baseline. An annual audiogram may be substituted for the baseline audiogram when, in the judgment of the audiologist, otolaryngologist, or physician who is evaluating the audiogram:
(i) The standard threshold shift revealed by the audiogram is persistent, or
(ii) The hearing threshold shown in the annual audiogram indicates significant improvement over the baseline audiogram.
OSHA's former recording criteria required the employer to track separate baselines for recording and hearing conservation purposes. However, the new Part 1904 hearing loss recording system relies on the existing 1910.95 calculations, and separate baselines will no longer be required. In short, under the new Part 1904, a recordable hearing loss case occurs when an employee experiences an STS (as defined in 29 CFR 1910.95), the STS is work-related, and the employee's aggregate hearing loss exceeds 25dB from audio metric zero.
[67 FR 44044-44047, July 1, 2002]
... [T]he final rule states that there are no special rules for determining work-relationship and restates the rule's overall approach to determining work-relatedness -- that a case is work-related if one or more events or exposures in the work environment either caused or contributed to the hearing loss, or significantly aggravated a pre-existing hearing loss.
The final rule's approach to determining work-relatedness differs from the January 2001 rule for three reasons. First, although it is likely that occupational exposure to noise in excess of 85 dBA will be a causal factor in hearing loss in some cases, a presumption of work-relatedness is not justified in all cases. Further evaluation is needed to make this determination. Second, the policy in the final rule is consistent with the general principle in § 1904.5 that work-relatedness is to be determined on a case-by-case basis. Third, the approach used in the January 2001 rule is not supported by comments to the docket. None of the commenters supported the presumption, while many opposed it.
The final rule also continues the 2001 rule's policy allowing the employer to seek the guidance of a physician or other licensed health care professional when determining the work-relatedness of hearing loss cases. Paragraph (b)(6) of the rule states that if a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, the employer is not required to consider the case work-related, and therefore is not required to record it.
When evaluating the work relatedness of a given hearing loss case, the employer should take several factors into account. ...One important factor to consider is the effectiveness of the hearing protection program. When employees are exposed to high levels of noise in the workplace, and do not wear appropriate hearing protection devices, a case of hearing loss is more likely to be work-related. If an employee's hearing protection devices are not appropriate for the noise conditions, if they do not fit properly, or if they are not used properly and consistently, they may not provide enough protection to prevent workplace noise from contributing to a hearing loss case...
Miscellaneous Hearing Loss Issues
Several of OSHA's rules provide access rights to audiometric data. Section 1910.95(g)(8) of the noise standard requires employers to inform employees, in writing, that they have experienced a standard threshold shift. OSHA's rule for access to employee exposure and medical records (Section 1910.1020) requires employers to provide access to medical records, exposure records, and analyses of records to employee's and their designated representatives. Finally, the part 1904 regulation requires employers to provide employee access to the OSHA injury and illness data.
... During 2002, the State Plan States were allowed to maintain their policies for the recording of hearing loss, while OSHA reconsidered what the appropriate recording criteria should be. In the Federal Register document announcing the one year delay and the interim policy for year 2002, OSHA stated that when it issues a final determination for the recording of occupational hearing loss for calendar years 2003 and beyond, the states would be required to have identical criteria (66 FR 52033). Now that OSHA has issued its final determination, the States are required to promulgate identical criteria.
[67 FR 77168-77169, Dec.17, 2002]
B. OSHA's Reasons for Retaining the Hearing Loss Column
OSHA has decided to retain the hearing loss column. Doing so will improve the Nation's statistical information on occupational hearing loss, facilitate analysis of hearing loss data at individual workplaces, and improve the Agency's ability to assess this common occupational disorder. One of the major functions of the Part 1904 regulation is to produce national statistics for occupational injury and illness (29 U.S.C. 657.(c)(1)). The data will clearly improve the Nation's statistics on occupational hearing loss...
Because the BLS statistics on case characteristics only reflect injuries and illnesses that result in days away from work, and workers commonly suffer hearing loss and never require a day away from work, the BLS estimates represent only a minor fraction of the total hearing loss experienced by U.S. workers and do not reflect the incidence of occupational hearing loss. A discussion of the BLS data systems and how they function may be found at http://www.bls.gov/bls/safety.htm. By providing a separate 300 Log column for this disorder, the data for hearing loss will be summarized by the employer at the end of the year, and will be captured by the BLS when sampled employers submit their summary injury and illness information. Thus, national statistics will be available, for the first time, that include cases that result in days away from work and those that do not...
The resulting statistics will be of value to several groups. The data will have value on their own as a public information resource that can be accessed by students, hearing loss professionals, researchers, and others. The data can be used by policy makers to prioritize hearing loss prevention efforts and measure the performance of those efforts, whether they are enforcement, guidance, outreach or consultation. OSHA believes that the greatest value of the data will be realized by employers and employees at individual workplaces. These individuals have always had the ability to determine the incidence of hearing loss cases in their workplace via analysis of the individual case descriptions on the OSHA 300 Logs; the hearing loss column will only make this task easier. The greater value of the column lies in the new ability to benchmark the hearing loss statistics of an individual workplace to the hearing loss statistics for industry as a whole, or to hearing loss statistics for a comparable industry classification. This will allow employers and employees to compare their hearing loss prevention performance to the performance of their peers and know whether or not their efforts are succeeding. This is a function that is not required under the Section 1910.95 noise standard, and is a useful purpose of the Part 1904 records.
OSHA disagrees with the arguments against a hearing loss column. In response to the criticism that the data will not shed light on causes or provide value in determining preventive strategies, ...a mere entry on the Log does not, by itself, show an employer or employee how to prevent hearing loss. That is the function of further analysis of the hearing loss cases, the workplace, and the employer's hearing conservation program. In this matter, hearing loss is no different than any other type of injury or illness. The Log provides descriptive data about occupational injuries and illnesses and some of the circumstances surrounding them. It does not replace the need for causal analysis of occupational injuries and illnesses. ...OSHA notes that the data only reflect work-related hearing loss cases. Part 1904 requires the employer to consider the case to be work-related only when exposure at work either causes or contributes to a hearing loss, or significantly aggravates a pre-existing hearing loss (Section 1904.5). Section 1904.10(b)(6) allows the employer to consider the case non work-related if a physician or other licensed health care professional determines the hearing loss is not work related.
Finally, the column is not burdensome. Although the rule does not require employers to use computer software to track injuries and illnesses, many employers do so voluntarily, and these employers will have some minimal initial costs to revise their software. Employers will also experience a small training cost to familiarize the employees who maintain the records with the new column. However, once these tasks are completed, it is no more burdensome to check a hearing loss column than one of the other columns on the form...
D. Other Hearing Loss Issues
...Third, OSHA has noted concern among employers because the application of the new two-part test in the new Section 1904.10 recording criteria will result in an increase in recorded hearing loss cases. As noted in the July 1, 2002 rulemaking, the new criteria will capture more hearing loss cases. Employers will experience an increase in recorded hearing loss cases in 2004 and future years. Caution must be used when comparing the past and future data to prior year data. OSHA recognizes this increase, and will take the changes in the recordkeeping rule into account when evaluating an employer's injury and illness experience.
Use this 'decision tree' to determine whether the results of an audiometric exam given on or after January 1, 2003 reveal a recordable STS.
Has the employee suffered an STS (an average 10dB or more loss relative to the most current baseline audiogram averaged at 2000, 3000 and 4000 Hz) in one or both ears according to the provisions of the OSHA noise standard (§1910.95)?*
Note: In all cases, use the most current baseline to determine recordability as you would to calculate an STS under the hearing conservation provisions of the noise standard (§1910.95). If an STS occurs in only one ear, you may only revise the baseline audiogram for that ear.
* The audiogram may be adjusted for presbycusis (aging) as set out in 1910.95.
Is the employee's overall hearing level at 25dB or more above audiometric zero averaged at 2000, 3000 and 4000 Hz in the affected ear(s)?
Is the hearing loss work-related?
Do not Record on the OSHA 300 Log and check the hearing loss column (M5)
(66 FR 6013-6017, Jan. 19, 2001)
Section 1904.11 Recording criteria for work-related tuberculosis cases
Section 1904.11 of the final rule being published today addresses the recording of tuberculosis (TB) infections that may occur to workers occupationally exposed to TB... There are two general stages of TB, tuberculosis infection and active tuberculosis disease.
Individuals with tuberculosis infection and no active disease are not infectious; tuberculosis infections are asymptomatic and are only detected by a positive response to a tuberculin skin test...
The text of Section 1904.11 of the final rule states:
(a) Basic requirement.
If any of your employees has been occupationally exposed to anyone with a known case of active tuberculosis (TB), and that employee subsequently develops a tuberculosis infection, as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional, you must record the case on the OSHA 300 Log by checking the "respiratory condition" column.
(1) Do I have to record, on the Log, a positive TB skin test result obtained at a pre-employment physical?
No, because the employee was not occupationally exposed to a known case of active tuberculosis in your workplace.
(2) May I line-out or erase a recorded TB case if I obtain evidence that the case was not caused by occupational exposure?
Yes. You may line-out or erase the case from the Log under the following circumstances:
(i) The worker is living in a household with a person who has been diagnosed with active TB;
(ii) The Public Health Department has identified the worker as a contact of an individual with a case of active TB unrelated to the workplace; or
(iii) A medical investigation shows that the employee's infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure.
Positive Skin Tests
...A positive tuberculin skin test indicates that the employee has been exposed to Mycobacterium tuberculosis and has been infected with the bacterium. Although the worker may or may not have active tuberculosis disease, the worker has become infected. Otherwise, his or her body would not have formed antibodies against these pathogens. (OSHA is aware that, in rare situations, a positive skin test result may indicate a prior inoculation against TB rather than an infection.)
OSHA believes that TB infection is a significant change in the health status of an individual, and, if occupational in origin, is precisely the type of illness Congress envisioned including in the OSHA injury and illness statistics. Contracting a TB infection from a patient, client, detainee, or other person in the workplace would cause serious concern, in OSHA's view, in any reasonable person. Once a worker has contracted the TB infection, he or she will harbor the infection for life. At some time in the future, the infection can progress to become active disease, with pulmonary infiltration, cavitation, and fibrosis, and may lead to permanent lung damage and death. An employee harboring TB infection is particularly likely to develop the full-blown disease if he or she must undergo chemotherapy, contracts another disease, or experiences poor health...
When an employee is exposed to an infectious agent in the workplace, such as TB, chicken pox, etc., either by a co-worker, client, patient, or any other person, and the employee becomes ill, workplace conditions have either caused or contributed to the illness and it is therefore work-related. Since, as discussed above, TB infection is clearly a serious condition, it is non-minor and must be recorded.
...OSHA believes, that non-minor illnesses resulting from an exposure in the work environment are work-related and therefore recordable unless a specific exemption to the presumption applies. Infection from exposure to another employee at work is no different, in terms of the geographic presumption, from infection resulting from exposure to a client, patient, or any other person who is present in the workplace. The transmission of TB infection from one employee to another person at work, including a co-worker, clearly is non-minor and is squarely within the presumption.
...OSHA agrees that a case of TB should be recorded only when an employee has been exposed to TB in the workplace (i.e., that the positional theory of causation applies to these cases just as it does to all others). OSHA has added an additional recording criterion in this case: for a TB case occurring in an employee to be recordable, that employee must have been exposed at work to someone with a known case of active tuberculosis.
...Under the final rule, if a worker reports a case of TB but the worker has not been exposed to an active case of the disease at work, the case is not recordable. However, OSHA sees no need for the employer to document such workplace exposure, or for the Agency to require a higher level of proof that workplace exposure has occurred in these compared with other cases. Further, OSHA knows of no justification for excluding cases simply because they are the first or only case discovered in the workplace. If a worker contracted the disease from contact with a co-worker, patient, client, customer or other work contact, the case would be work-related, even though it was the first case detected. Many work- related injury and illness cases would be excluded from the recordkeeping system if cases were only considered to be work-related when they occurred in clusters or epidemics. This was clearly not Congress's intent.
The final rule's criteria for recording TB cases include three provisions designed to help employers rule out cases where occupational exposure is not the cause of the infection in the employee (i.e., where the infection was caused by exposure outside the work environment). An employer is not required to record a case involving an employee who has a positive skin test and who is exposed at work if (1) the worker is living in a household with a person who has been diagnosed with active TB, (2) the Public Health Department has identified the worker as a contact of a case of active TB unrelated to the workplace, or (3) a medical investigation shows that the employee's infection was caused by exposure to TB away from work or proves that the case was not related to the workplace TB exposure.
...OSHA has added an implementation question to the final rule to make sure that employers understand that pre-employment skin test results for TB are not work-related and do not have to be recorded. These results are not considered work-related for the purposes of the current employer's Log because the test result cannot be the result of an event or exposure in the current employer's work environment.
...[T]he final rule allows employers to rebut the presumption of work-relatedness if a medical evaluation concludes that the TB infection did not arise as a result of occupational exposure, a physician or other licensed health care professional could use the CDC Guidelines or another method to investigate the origin of the case. If such an investigation resulted in information that demonstrates that the case is not related to a workplace exposure for example, the employer need not record the case. For example, such an investigation might reveal that the employee had been vaccinated in childhood with the BCG vaccine. The em-ployer may wish, in such cases, to keep records of the investigation and determination.
The instructions that accompany the OSHA 300 Log contain examples of occupational injuries and the various types of occupational illnesses listed on the Log. If the case you are dealing with is on one of those lists, then check that injury or illness category. If the case you are dealing with is not listed, then you may check the injury or illness category that you believe best fits the circumstances of the case.
Yes. The employer must decide if a case is a privacy concern case, using 1904.29(b)(7), which lists the six types of injuries and illnesses the employer must consider privacy concern cases. If the case meets any of these criteria, the employer must consider it a privacy concern case. This is a complete list of all injury and illnesses considered privacy concern cases.
Question 29-3. Under paragraph 1904.29(b)(9), the employer may use some discretion in describing a privacy concern case on the log so the employee cannot be identified. Can the employer also leave off the job title, date, or where the event occurred?
Yes. OSHA believes that this would be an unusual circumstance and that leaving this information off the log will rarely be needed. However, if the employer has reason to believe that the employee's name can be identified through this information, these fields can be left blank.
Question 29-4. May employers attach missing information to their accident investigation or workers' compensation forms to make them an acceptable substitute form for the OSHA 301 for recordkeeping purposes?
Yes, the employer may use a workers' compensation form or other form that does not contain all the required information, provided the form is supplemented to contain the missing information and the supplemented form is as readable and understandable as the OSHA 301 form and is completed using the same instructions as the OSHA 301 form.
Question 29-5. If an employee reports an injury or illness and receives medical treatment this year, but states that the symptoms first arose at some unspecified date last year, on which year's log do I record the case?
Ordinarily, the case should be recorded on the Log for the year in which the injury or illness occurred. Where the date of injury or illness cannot be determined, the date the employee reported the symptoms or received treatment must be used. In the case in question, the injury or illness would be recorded on this year's Log because the employee cannot specify the date when the symptoms occurred.
Question 29-6. Since the new system proposes to do away with the distinction between injuries and illnesses, is there guidance on how to classify cases to complete column M on the OSHA 300 Log?
An injury or illness is an abnormal condition or disorder. Employers should look at the examples of injuries and illnesses in the "Classifying Injuries and Classifying Illnesses" section of the Recordkeeping Forms Package for guidance. If still unsure about the classification, employers could use the longstanding distinction between injuries that result from instantaneous events or those from exposures in the work environment. Cases resulting from anything other than an instantaneous event or exposure are considered illnesses.
(66 FR 6022-6032, Jan. 19, 2001)
Section 1904.29 Forms.
Section 1904.29, titled "Forms," establishes the requirements for the forms (OSHA 300 Log, OSHA 300A Annual Summary, and OSHA 301 Incident Report) an employer must use to keep OSHA Part 1904 injury and illness records, the time limit for recording an injury or illness case, the use of substitute forms, the use of computer equipment to keep the records, and privacy protections for certain information recorded on the OSHA 300 Log.
Paragraph 1904.29(a) sets out the basic requirements of this section. It directs the employer to use the OSHA 300 (Log), 300A (Summary), and 301 (Incident Report) forms, or equivalent forms, to record all recordable occupational injuries and illnesses. Paragraph 1904.29(b) contains requirements in the form of questions and answers to explain how employers are to implement this basic requirement. Paragraph 1904.29(b)(1) states the requirements for: (1) Completing the establishment information at the top of the OSHA 300 Log, (2) making a one- or two-line entry for each recordable injury and illness case, and (3) summarizing the data at the end of the year. Paragraph 1904.29(b)(2) sets out the requirements for employers to complete the OSHA 301 Incident Report form (or equivalent) for each recordable case entered on the OSHA 300 Log. The requirements for completing the annual summary on the Form 300A are found at Section 1904.32 of the final rule.
...In addition to establishing the basic requirements for employers to keep records on the OSHA 300 Log and OSHA 301 Incident Report and providing basic instructions on how to complete these forms, this section of the rule states that employers may use two lines of the OSHA 300 Log to describe an injury or illness, if necessary...
Deadline for Entering a Case
Paragraph 1904.29(b)(3) establishes the requirement for how quickly each recordable injury or illness must be recorded into the records. It states that the employer must enter each case on the OSHA 300 Log and OSHA 301 Form within 7 calendar days of receiving information that a recordable injury or illness has occurred.
...[T]he Agency believes that the 7 calendar-day rule will provide employers sufficient time to receive information and record the case. In addition, a simple "within a week" rule will be easy for employers to remember and apply, and is consistent with OSHA's decision, in this rule, to move from workdays to calendar days whenever possible. The Agency believes that 7 calendar days is ample time for recording, particularly since the final rule, like the former rule, allows employers to revise an entry simply by lining it out or amending it if further information justifying the revision becomes available. The final rule does contain one exception for the 7 day recording period: if an employee experiences a recordable hearing loss, and the employer elects to retest the employee's hearing within 30 days, the employer can wait for the results of the retest before recording.
Equivalent Forms and Computerized Records
...[P]aragraphs 1904.29(b)(4) and (b)(5) of the final rule make clear that employers are permitted to record the required information on electronic media or on paper forms that are different from the OSHA 300 Log, provided that the electronic record or paper forms are equivalent to the OSHA 300 Log. A form is deemed to be "equivalent" to the OSHA 300 Log if it can be read and understood as easily as the OSHA form and contains at least as much information as the OSHA 300 Log. In addition, the equivalent form must be completed in accordance with the instructions used to complete the OSHA 300 Log. These provisions are intended to balance OSHA's obligation, as set forth in Section 8(d) of the OSH Act, to reduce information collection burdens on employers as much as possible, on the one hand, with the need, on the other hand, to maintain uniformity of the data recorded and provide employers flexibility in meeting OSHA's recordkeeping requirements. These provisions also help to achieve one of OSHA's goals for this rulemaking: to allow employers to take full advantage of modern technology and computers to meet their OSHA recordkeeping obligations...
...[P]aragraph Section 1904.29(b)(5) of the final rule allows the employer to keep records on computer equipment only if the computer system can produce paper copies of equivalent forms when access to them is needed by a government representative, an employee or former employee, or an employee representative, as required by Section 1904.35 or 1904.40, respectively. Of course, if the employee requesting access to the information agrees to receive it by e-mail, this is acceptable under the 1904 rule...
The final rule does not include a requirement that certain questions on an equivalent form be asked in the same order and be phrased in language identical to that used on the OSHA 301 form. Instead, OSHA has decided, that employers may use any substitute form that contains the same information and follows the same recording directions as the OSHA 301 form, and the final rule clearly allows this. Although the consistency of the data on the OSHA 301 form might be improved somewhat if the questions asking for further details were phrased and positioned in an identical way on all employers' forms, OSHA has concluded that the additional burden such a requirement would impose on employers and workers' compensation agencies outweighs this consideration.
OSHA has revised the wording of these three questions on the final OSHA 301 form to match the phraseology used by the Bureau of Labor Statistics (BLS) in its Annual Survey of Occupational Injuries and Illnesses. By ensuring consistency across both the BLS and OSHA forms, this change will help those employers who respond both to the BLS Annual Survey and keep OSHA records.
Handling of Privacy Concern Cases
Paragraph 1904.29(b)(6) requires the employer to withhold the injured or ill employee's name from the OSHA 300 Log for injuries and illnesses defined by the rule as "privacy concern cases" and instead to enter "privacy concern case" in the space where the employee's name would normally be entered if an injury or illness meeting the definition of a privacy concern case occurs. This approach will allow the employer to provide OSHA 300 Log data to employees, former employees and employee representatives, as required by Section 1904.35, while at the same time protecting the privacy of workers who have experienced occupational injuries and illnesses that raise privacy concerns. The employer must also keep a separate, confidential list of these privacy concern cases, and the list must include the employee's name and the case number from the OSHA 300 Log. This separate listing is needed to allow a government representative to obtain the employee's name during a workplace inspection in case further investigation is warranted and to assist employers to keep track of such cases in the event that future revisions to the entry become necessary.
Paragraph 1904.29(b)(7) defines "privacy concern cases" as those involving: (i) An injury or illness to an intimate body part or the reproductive system; (ii) an injury or illness resulting from a sexual assault; (iii) a mental illness; (iv) a work-related HIV infection, hepatitis case, or tuberculosis case; (v) needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material, or (vi) any other illness, if the employee independently and voluntarily requests that his or her name not be entered on the log. Paragraph 1904.29(b)(8) establishes that these are the only types of occupational injuries and illnesses that the employer may consider privacy concern cases for recordkeeping purposes.
Paragraph 1904.29(b)(9) permits employers discretion in recording case information if the employer believes that doing so could compromise the privacy of the employee's identity, even though the employee's name has not been entered. This clause has been added because OSHA recognizes that, for specific situations, coworkers who are allowed to access the log may be able to deduce the identity of the injured or ill worker and obtain inappropriate knowledge of a privacy-sensitive injury or illness. OSHA believes that these situations are relatively infrequent, but still exist. For example, if knowing the department in which the employee works would inadvertently divulge the person's identity, or recording the gender of the injured employee would identifying that person because, for example, only one woman works at the plant, the employer has discretion to mask or withhold this information both on the Log and Incident Report.
The rule requires the employer to enter enough information to identify the cause of the incident and the general severity of the injury or illness, but allows the employer to exclude details of an intimate or private nature. The rule includes two examples; a sexual assault case could be described simply as "injury from assault," or an injury to a reproductive organ could be described as "lower abdominal injury." Likewise, a work-related diagnosis of post traumatic stress disorder could be described as "emotional difficulty." Reproductive disorders, certain cancers, contagious diseases and other disorders that are intimate and private in nature may also be described in a general way to avoid privacy concerns. This allows the employer to avoid overly graphic descriptions that may be offensive, without sacrificing the descriptive value of the recorded information.
Paragraph 1904.29(b)(10) protects employee privacy if the employer decides voluntarily to disclose the OSHA 300 and 301 forms to persons other than those who have a mandatory right of access under the final rule. The paragraph requires the employer to remove or hide employees' names or other personally iden-tifying information before disclosing the forms to persons other than government representatives, employees, former employees or authorized representatives, as required by paragraphs 1904.40 and 1904.35, except in three cases. The employer may disclose the forms, complete with personally identifying information, [ ] only: (i) to an auditor or consultant hired by the employer to evaluate the safety and health program; (ii) to the extent necessary for processing a claim for workers' compensation or other insurance benefits; or (iii) to a public health authority or law enforcement agency for uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required under section 164.512 of the final rule on Standards for Privacy of Individ-ually Identifiable Health Information, 45 CFR 164.512.
These requirements have been included in Section 1904.29 rather than in Section 1904.35, which establishes requirements for records access, because waiting until access is requested to remove identifying information from the OSHA 300 Log could unwittingly compromise the injured or ill worker's privacy and result in unnecessary delays. The final rule's overall approach to handling privacy issues is discussed more fully in the preamble discussion of the employee access provisions in Section 1904.35.
The Treatment of Occupational Illness and Injury Data on the Forms
The treatment of occupational injury and illness data on the OSHA forms is a key issue in this rulemaking. Although the forms themselves are not printed in the Code of Federal Regulations (CFR), they are the method OSHA's recordkeeping regulation uses to meet the Agency's goal of tracking and reporting occupational injury and illness data. As such, the forms are a central component of the recordkeeping system and mirror the requirements of the Part 1904 regulation. The final Part 1904 rule requires employers to use three forms to track occupational injuries and illnesses: the OSHA 300, 300A, and 301 forms, which replace the OSHA 200 and 101 forms called for under the former recordkeeping rule, as follows:
The use of a three-form system for recordkeeping is not a new concept. The OSHA recordkeeping system used a separate summary form from 1972 to 1977, when the Log and Summary forms were combined into the former OSHA Form 200 (42 FR 65165). OSHA has decided that the three-form system (the 300 Log, the 300A summary, and the 301 Incident Report) has several advantages. First, it provides space for more cases to be entered on the Log but keeps the Log to a manageable size. Second, it helps to ensure that an injured or ill employee's name is not posted in a public place. When the forms were combined in 1977 into a single form, employers occasionally neglected to shield an employee's name on the final sheet of the 200 Log, even though the annual summary form was designed to mask personal identifiers. The use of a separate 300A summary form precludes this possibility. Third, the use of a separate summary form (the final rule's Form 300A) allows the data to be posted in a user-friendly format that will be easy for employees and employers to use. Fourth, a separate 300A Form provides extra space for information about an employee's right to access the Log, information about the establishment and its employees, and the dual certifications required by Section 1904.32 of the rule. Finally, a separate 300A Form makes it easier to attach to the reverse side of the form worksheets that are designed to help the employer calculate the average number of employees and hours worked by all employees during the year.
The forms have been incorporated into an information package that provides individual employers with several copies of the OSHA 300, 300A, and 301 forms; general instructions for filling out the forms and definitions of key terms; an example showing how to fill out the 300 Log; a worksheet to assist employers in computing the average number of employees and the total number of hours worked by employees at the establishment in the previous year; a non-mandatory worksheet to help the employer compute an occupational injury and illness rate; and instructions telling an employer how to get additional help by (1) accessing the OSHA Internet home page, or (2) by calling the appropriate Federal OSHA regional office or the OSHA approved State-Plan with jurisdiction.
The Size of the OSHA Recordkeeping Forms
The OSHA recordkeeping forms required by the final Part 1904 recordkeeping rule are printed on legal size paper (81/2" x 14")...
Accordingly, OSHA has redesigned the OSHA 300 Log to fit on a legal size (81/2 x 14 inches) piece of paper and to clarify that employers may use two lines to enter a case if the information does not fit easily on one line. The OSHA forms 300A and 301, and the remainder of the recordkeeping package, have also been designed to fit on the same-size paper as the OSHA 300 Log. For those employers who use computerized systems (where handwriting space is not as important) equivalent computer-generated forms can be printed out on 81/2 x 11 sheets of paper if the printed copies are legible and are as readable as the OSHA forms...
Defining Lost Workdays
OSHA proposed to eliminate the term "lost workdays," by replacing it with "days away from work" (61 FR 4033). The OSHA recordkeeping system has historically defined lost workdays as including both days away from work and days of restricted work activity, and theRecordkeeping Guidelines discussed how to properly record lost workday cases with days away from work and lost workday cases with days of restricted work activity (Ex. 2, p. 47, 48). However, many use the term "lost workday" in a manner that is synonymous with "day away from work," and the term has been used inconsistently for many years...
In the final rule, OSHA has eliminated the term "lost workdays" on the forms and in the regulatory text. The use of the term has been confusing for many years because many people equated the terms "lost workday" with "days away from work" and failed to recognize that the former OSHA term included restricted days. OSHA finds that deleting this term from the final rule and the forms will improve clarity and the consistency of the data.
The 300 Log has four check boxes to be used to classify the case: death, day(s) away from work, day(s) of restricted work or job transfer; and case meeting other recording criteria. The employer must check the single box that reflects the most severe outcome associated with a given injury or illness. Thus, for an injury or illness where the injured worker first stayed home to recuperate and then was assigned to restricted work for several days, the employer is required only to check the box for days away from work (column I). For a case with only job transfer or restriction, the employer must check the box for days of restricted work or job transfer (Column H). However, the final Log still allows employers to calculate the incidence rate formerly referred to as a "lost workday injury and illness rate" despite the fact that it separates the data formerly captured under this heading into two separate categories. Because the OSHA Form 300 has separate check boxes for days away from work cases and cases where the employee remained at work but was temporarily transferred to another job or assigned to restricted duty, it is easy to add the totals from these two columns together to obtain a single total to use in calculating an injury and illness incidence rate for total days away from work and restricted work cases.
Counting Days of Restricted Work or Job Transfer
Although the final rule does not use the term "lost workday" (which formerly applied both to days away from work and days of restricted or transferred work), the rule continues OSHA's longstanding practice of requiring employers to keep track of the number of days on which an employee is placed on restricted work or is on job transfer because of an injury or illness...
In the final rule, OSHA has decided to require employers to record the number of days of restriction or transfer on the OSHA 300 Log. From the comments received, and based on OSHA's own experience, the Agency finds that counts of restricted days are a useful and needed measure of injury and illness severity. OSHA's decision to require the recording of restricted and transferred work cases on the Log was also influenced by the trend toward restricted work and away from days away from work...
The final rule thus carries forward OSHA's longstanding requirement for employers to count and record the number of restricted days on the OSHA Log. On the Log, restricted work counts are separated from days away from work counts, and the term "lost workday" is no longer used. OSHA believes that the burden on employers of counting these days will be reduced somewhat by the simplified definition of restricted work, the counting of calendar days rather than work days, capping of the counts at 180 days, and allowing the employer to stop counting restricted days when the employees job has been permanently modified to eliminate the routine job functions being restricted (see the Preamble Discussion for 1904.7 General Recording Criteria).
Separate 300 Log Data on Occupational Injury and Occupational Illness
The Agency finds that there is a continuing need for separately identifiable information on occupational illnesses and injuries, as well as on certain specific categories of occupational illnesses. The published BLS statistics have included separate estimates of the rate and number of occupational injuries and illnesses for many years, as well as the rate and number of different types of occupational illnesses, and employers, employees, the government, and the public have found this information useful and worthwhile. Separate illness and injury data are particularly useful at the establishment level, where employers and employees can use them to evaluate the establishment's health experience and compare it to the national experience or to the experience of other employers in their industry or their own prior experience. The data are also useful to OSHA personnel performing worksite inspections, who can use this information to identify potential health hazards at the establishment.
Under the final rule, the OSHA 300 form has therefore been modified specifically to collect information on [four] types of occupational health conditions:...skin diseases or disorders, respiratory conditions, poisoning, and hearing loss. There is also an "all other illness" column on the Log. To record cases falling into one of these categories, the employer simply enters a check mark in the appropriate column, which will allow these cases to be separately counted to generate establishment-level summary information at the end of the year...
In the final rule, two of the illness case columns on the OSHA 300 Log are identical to those on the former OSHA Log: a column to capture cases of skin diseases or disorders and one to capture cases of systemic poisoning. The single column for respiratory conditions on the new OSHA Form 300 will capture data on respiratory conditions that were formerly captured in two separate columns,i.e., the columns for respiratory conditions due to toxic agents (formerly column 7c) and for dust diseases of the lungs (formerly column 7b). Column 7g of the former OSHA Log provided space for data on all other occupational illnesses, and that column has also been continued on the new OSHA 300 Log. On the other hand, column 7e from the former OSHA Log, which captured cases of disorders due to physical agents, is not included on the new OSHA Log form. The cases recorded in former column 7e primarily addressed heat and cold disorders, such as heat stroke and hypothermia; hyperbaric effects, such as caisson disease; and the effects of radiation, including occupational illnesses caused by x-ray exposure, sun exposure and welder's flash. Because space on the form is at a premium, and because column 7e was not used extensively in the past (recorded column 7e cases accounted only for approximately five percent of all occupational illness cases), OSHA has not continued this column on the new OSHA 300 Log.
OSHA has, however, added a new column specifically to capture hearing loss cases on the OSHA 300 Log. The former Log included a column devoted to repeated trauma cases, which were defined as including noise-induced hearing loss cases as well as cases involving a variety of other conditions, including certain musculoskeletal disorders. Dedicating a column to occupational hearing loss cases will provide a valuable new source of information on this prevalent and often disabling condition. Although precise estimates of the number of noise-exposed workers vary widely by industry and the definition of noise dose used, the EPA estimated in 1981 that about 9 million workers in the manufacturing sector alone were occupationally exposed to noise levels above 85 dBA. Recent risk estimates suggest that exposure to this level of noise over a working lifetime would cause material hearing impairment in about 9 percent, or approximately 720,000, U.S. workers (NIOSH, 1998). A separate column for occupational hearing loss is also appropriate because the BLS occupational injury and illness statistics only report detailed injury characteristics information for those illness cases that result in days away from work. Because most hearing loss cases do not result in time off the job, the extent of occupational hearing loss has not previously been accurately reflected in the national statistics. By creating a separate column for occupational hearing loss cases, and clearly articulating in section 1904.10 of the final rule the level of hearing loss that must be recorded, OSHA believes that the recordkeeping system will, in the future, provide accurate estimates of the incidence of work-related loss of hearing among America's workers...
Miscellaneous 300 Form Issues
...OSHA has not added the fields or columns suggested by commenters to the final 300 or 301 forms because the available space on the form has been allocated to other data that OSHA considers more valuable. In addition, there is no requirement in the final rule for employers to enter any part of an employee's social security number because of the special privacy concerns that would be associated with that entry and employee access to the forms. However, employers are, of course, free to collect additional data on occupational injury and illness beyond the data required by the Agency's Part 1904 regulation.
The OSHA 301 Form
Although the final OSHA 300 Log presents information on injuries and illnesses in a condensed format, the final OSHA 301 Incident Record allows space for employers to provide more detailed information about the affected worker, the injury or illness, the workplace factors associated with the accident, and a brief description of how the injury or illness occurred. Many employers use an equivalent workers' compensation form or internal reporting form for the purpose of recording more detailed information on each case, and this practice is allowed under paragraph 1904.29(b)(4) of the final rule.
The OSHA Form 301 differs in several ways from the former OSHA 101 form it replaces, although much of the information is the same as the information on the former 101 Form, although it has been reworded and reformatted for clarity and simplicity. The final Form 301 does not require the following data items that were included on the former OSHA 101 to be recorded:
OSHA's reasons for deleting these data items from the final 301 form is that most are included on the OSHA Form 300 and are therefore not necessary on the 301 form. Eliminating duplicate information between the two forms decreases the redundancy of the data collected and the burden on employers of recording the data twice. The employee social security number has been removed for privacy reasons. OSHA believes that the information found in several other data fields on the 301 Form (e.g., the employee's name, address, and date of birth) provides sufficient information to identify injured or ill individuals while protecting the confidentiality of social security numbers.
OSHA has also added several items to the OSHA Form 301 that were not on the former OSHA No. 101:
Rewording of the Proposed Case Detail Questions (questions 9, 10, 16, 17 and 18)
...As discussed above, final Form 301 no longer requires the employer to include these questions on any equivalent form in the same format or language as that used by the OSHA 301 form...
The final form solicits information only on the object or substance that directly harmed the employee. The final 301 form contains four questions eliciting case detail information (i.e., what was the employee doing just before the incident occurred?, what happened?, what was the injury or illness?, and what object or substance directly harmed the employee?). The language of these questions on the final 301 form has been modified slightly from that used in the proposed questions to be consistent with the language used on the BLS Survey of Occupational Injuries and Illnesses collection form. The BLS performed extensive testing of the language used in these questions while developing its survey form and has subsequently used these questions to collect data for many years. The BLS has found that the order in which these questions are presented and the wording of the questions on the survey form elicit the most complete answers to the relevant questions. OSHA believes that using the time-tested language and ordering of these four questions will have the same benefits for employers using the OSHA Form 301 as they have had for employers responding to the BLS Annual Survey. Matching the BLS wording and order will also result in benefits for those employers selected to participate in the BLS Annual Survey. To complete the BLS survey forms, employers will only need to copy information from the OSHA Injury and Illness Incident Report to the BLS survey form. This should be easier and less confusing than researching and rewording responses to the questions on two separate forms.
The Data Fields OSHA Proposed to Change on the Proposed 301 Form
...OSHA continues to believe that the data gathered by means of the "date hired" field will have value for analyzing occupational injury and illness data and has therefore included this data field on the final OSHA 301 form. These data are useful for analyzing the incidence of occupational injury and illness among newly hired workers and those with longer tenure. OSHA is aware that the data collected are not a perfect measure of job experience because, for example, an employee may have years of experience doing the same type of work for a previous employer, and that prior experience will not be captured by this data field. Another case where this data field may fail to capture perfect data could occur in the case of an employee who has worked for the same employer for many years but was only recently reassigned to new duties. Despite cases such as these, inclusion of this data field on the Form 301 will allow the Agency to collect valid data on length of time on the job for most employment situations.
For the relatively infrequent situation where employees are hired, terminated, and then rehired, the employer can, at his or her discretion, enter the date the employee was originally hired, or the date of rehire...
OSHA has decided to continue to collect information on final Form 301 concerning the treatment provided to the employee (proposed data field 7). OSHA's experience indicates that employers have not generally had difficulty in providing this information, either in the longshoring or any other industry. The data in this field is particularly useful to an OSHA inspector needing additional information about the medical condition of injured or ill employees. (OSHA does not request this medical information without first obtaining a medical access order under the provisions of 29 CFR part 1913, Rules Concerning OSHA Access to Employee Medical Records.) The final OSHA 301 Form therefore includes a data field for information on the off-site treating facility.
The final 301 Form also includes a data field requesting the name of the health care professional seen by the injured or ill employee. The employer may enter the name either of the physician or other health care professional who provided the initial treatment or the off-site treatment. If OSHA needs additional data on this point, the records of the health care professional listed will include both the name of the referring physician or other health care professional as well as the name of the health care professional to whom the employee was referred for specialized treatment...
OSHA has included on the final 301 form the two questions asking for data on the time of the event and the time the employee began work so that employers, employees and the government can obtain information on the role fatigue plays in occupational injuries and illness. Both questions (i.e., on time of event and time employee began work) must be included to conduct this analysis. Thus, OSHA has included both fields on the final Form 301. In addition, the form has been designed so that the employer can simply circle the a.m. or p.m. designation...
The final OSHA Form 301 permits the employer to include the name and title in either field, as long as the information is available. As to the phone number, the employer may use whatever number is appropriate that would allow a government representative accessing the data to contact the individual who prepared the form...
OSHA continues to believe that easy linkage of the Forms 300 and 301 will be beneficial to all users of these data. Thus, the final Form 301 contains a space for the case file number. The file/case number is required on both forms to allow persons reviewing the forms to match an individual OSHA Form 301 with a specific entry on the OSHA Form 300. Access by authorized employee representatives to the information contained on the OSHA Form 301 is limited to the information on the right side of the form (see Section 1904.35(b)(2)(v)(B) of the final rule). The case/file number is the data element that makes a link to the OSHA Form 300 possible. OSHA believes that this requirement will add very little burden to the recordkeeping process, because the OSHA Log has always required a unique file or case number. The final Form 301 requirement simply requires the employer to place the same number on the OSHA 301 form...
The final forms employers will use to keep the records of those occupational injuries and illnesses required by the final rule to be recorded have been revised to reflect the changes made to the final rule, the record evidence gathered in the course of this rulemaking, and a number of changes designed to simplify recordkeeping for employers. In addition, the forms have been revised to facilitate the use of equivalent forms and employers' ability to computerize their records.
Section 1904.30 Multiple establishments.
Section 1904.30 covers the procedures for recording injuries and illnesses occurring in separate establishments operated by the same business. ...[T]his section applies to businesses where separate work sites create confusion as to where injury and illness records should be kept and when separate records must be kept for separate work locations, or establishments. OSHA recognizes that the recordkeeping system must accommodate operations of this type, and has adopted language in the final rule to provide some flexibility for employers in the construction, transportation, communications, electric and gas utility, and sanitary services industries, as well as other employers with geographically dispersed operations. The final rule provides, in part, that operations are not considered separate establishments unless they continue to be in operation for a year or more...
In the final rule, the definition of establishment is included in Subpart G, Definitions.
The basic requirement of Section 1904.30(a) states that employers are required to keep separate OSHA 300 Logs for each establishment that is expected to be in business for one year or longer. Paragraph 1904.30(b)(1) states that for short-term establishments,i.e., those that will exist for less than a year, employers are required to keep injury and illness records, but are not required to keep separate OSHA 300 Logs. They may keep one OSHA 300 Log covering all short-term establishments, or may include the short-term establishment records in logs that cover individual company divisions or geographic regions. For example, a construction company with multi-state operations might have separate OSHA 300 Logs for each state to show the injuries and illnesses of its employees engaged in short-term projects, as well as a separate OSHA 300 Log for each construction project expected to last for more than one year. If the same company had only one office location and none of its projects lasted for more than one year, the company would only be required to have one OSHA 300 Log.
Paragraph 1904.30(b)(2) allows the employer to keep records for separate establishments at the business' headquarters or another central location, provided that information can be transmitted from the establishment to headquarters or the central location within 7 days of the occurrence of the injury or illness, and provided that the employer is able to produce and send the OSHA records to each establishment when Section 1904.35 or Section 1904.40 requires such transmission...
Paragraph 1904.30(b)(3) states that each employee must be linked, for recordkeeping purposes, with one of the employer's establishments. Any injuries or illnesses sustained by the employee must be recorded on his or her home establishment's OSHA 300 Log, or on a general OSHA 300 Log for short-term establishments. This provision ensures that all employees are included in a company's records. If the establishment is in an industry classification partially exempted under Section 1904.2 of the final rule, records are not required. Under paragraph 1904.30(b)(4), if an employee is injured or made ill while visiting or working at another of the employer's establishments, then the injury or illness must be recorded on the 300 Log of the establishment at which the injury or illness occurred.
How Long Must an Establishment Exist to Have a Separate OSHA Log
...[T]he final rule provides that an establishment must be one that is expected to exist for a year or longer before a separate OSHA log is required. Employers are permitted to keep separate OSHA logs for shorter term establishments if they wish to do so, but the rule does not require them to do so...
...Sections 1904.30(b)(1) and (b)(3) have been added to make it clear that records (but not a separate log) must be kept for short-term establishments lasting less than one year, and that each employee must be linked to an establishment...
...OSHA does not believe that centralization of the records will compromise timely employee or government representative access to the records. To ensure that this is the case, centralization under Section 1904.30(b)(2) is allowed only if the employer can produce copies of the forms when access to them is needed by a government representative, an employee or former employee, or an employee representative, as required by Sections 1904.35 and 40.
Recording Injuries and Illnesses Where They Occur
...For the vast majority of cases, the place where the injury or illness occurred is the most useful recording location. The events or exposures that caused the case are most likely to be present at that location, so the data are most useful for analysis of that location's records. If the case is recorded at the employee's home base, the injury or illness data have been disconnected from the place where the case occurred, and where analysis of the data may help reveal a workplace hazard. Therefore, OSHA finds that it is most useful to record the injury or illness at the location where the case occurred. Of course, if the injury or illness occurs at another employer's workplace, or while the employee is in transit, the case would be recorded on the OSHA 300 Log of the employee's home establishment.
For cases of illness, two types of cases must be considered. The first is the case of an illness condition caused by an acute, or short term workplace exposure, such as skin rashes, respiratory ailments, and heat disorders. These illnesses generally manifest themselves quickly and can be linked to the workplace where they occur, which is no different than most injury cases. For illnesses that are caused by long-term exposures or which have long latency periods, the illness will most likely be detected during a visit to a physician or other health care professional, and the employee is most likely to report it to his or her supervisor at the home work location.
Recording these injuries and illnesses could potentially present a problem with incidence rate calculations. In many situations, visiting employees are a minority of the workforce, their hours worked are relatively inconsequential, and rates are thus unaffected to any meaningful extent. However, if an employer relies on visiting labor to perform a larger amount of the work, rates could be affected. In these situations, the hours of these personnel should be added to the establishment's hours of work for rate calculation purposes.
Question 31-1. How is the term"supervised" in section 1904.31 defined for the purpose of determining whether the host employer must record the work-related injuries and illnesses of employees obtained from a temporary help service?
The host employer must record the recordable injuries and illnesses of employees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervision occurs when "in addition to specifying the output, product or result to be accomplished by the person's work, the employer supervises the details, means, methods and processes by which the work is to be accomplished."
Question 31-2. If a temporary personnel agency sends its employees to work in an establishment that is not required to keep OSHA records, does the agency have to record the recordable injuries and illnesses of these employees?
A temporary personnel agency need not record injuries and illnesses of those employees that are supervised on a day-to-day basis by another employer. The temporary personnel agency must record the recordable injuries and illnesses of those employees it supervises on a day to day basis, even if these employees perform work for an employer who is not covered by the recordkeeping rule.
Section 1904.31 Covered employees.
Final Rule Requirements and Legal Background
Section 1904.31 requires employers to record the injuries and illnesses of all their employees, whether classified as labor, executive, hourly, salaried, part-time, seasonal, or migrant workers. The section also requires the employer to record the injuries and illnesses of employees they supervise on a day-to-day basis, even if these workers are not carried on the employer's payroll.
Implementing these requirements requires an understanding of the Act's definitions of "employer" and "employee." The statute defines "employer," in relevant part, to mean "a person engaged in a business affecting interstate commerce who has employees." 29 U.S.C. 652(5). The term "person" includes "one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons." 29 U.S.C. 652(4). The term "employee" means "an employee of an employer who is employed in a business of his employer which affects interstate commerce." 29 U.S.C. 652(6). Thus, any individual or entity having an employment relationship with even one worker is an employer for purposes of this final rule, and must fulfill the recording requirements for each employee.
The application of the coverage principles in this section presents few issues for employees who are carried on the employer's payroll, because the employment relationship is usually well established in these cases. However, issues sometimes arise when an individual or entity enters into a temporary relationship with a worker. The first question is whether the worker is an employee of the hiring party. If an employment relationship exists, even if temporary in duration, the employee's injuries and illnesses must be recorded on the OSHA 300 Log and 301 form. The second question, arising in connection with employees provided by a temporary help service or leasing agency, is which employer -- the host firm or the temporary help service -- is responsible for recordkeeping.
Whether an employment relationship exists under the Act is determined in accordance with established common law principles of agency. At common law, a self-employed "independent contractor" is not an employee; therefore, injuries and illnesses sustained by independent contractors are not recordable under the final Recordkeeping rule. To determine whether a hired party is an employee or an independent contractor under the common law test, the hiring party must consider a number of factors, including the degree of control the hiring party asserts over the manner in which the work is done, and the degree of skill and independent judgment the hired party is expected to apply. Loomis Cabinet Co. V.OSHRC, 20 F.3d 938, 942 (9th Cir. 1994).
Other individuals, besides independent contractors, who are not considered to be employees under the OSH Act are unpaid volunteers, sole proprietors, partners, family members of farm employers, and domestic workers in a residential setting. See 29 CFR Section 1975.4(b)(2) and Section 1975.6 for a discussion of the latter two categories of workers. As is the case with independent contractors, no employment relationship exists between these individuals and the hiring party, and consequently, no recording obligation arises.
A related coverage question sometimes arises when an employer obtains labor from a temporary help service, employee leasing firm or other personnel supply service. Frequently the temporary workers are on the payroll of the temporary help service or leasing firm, but are under the day-to-day supervision of the host party. In these cases, Section 1904.31 places the recordkeeping obligation upon the host, or utilizing, employer. The final rule's allocation of recordkeeping responsibility to the host employer in these circumstances is consistent with the Act for several reasons.
First, the host employer's exercise of day-to-day supervision of the temporary workers and its control over the work environment demonstrates a high degree of control over the temporary workers consistent with the presence of an employment relationship at common law. See Loomis Cabinet Co., 20 F.3d at 942. Thus, the temporary workers will ordinarily be the employees of the party exercising day-to-day control over them, and the supervising party will be their employer.
Even if daily supervision is not sufficient alone to establish that the host party is the employer of the temporary workers, there are other reasons for the final rule's allocation of recordkeeping responsibility. Under the OSH Act, an employer's duties and responsibilities are not limited only to his own employees. Cf. Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728-731 (10th Cir. 1999). Assuming that the host is an employer under the Act (because it has an employment relationship with someone) it reasonably should record the injuries of all employees, whether or not its own, that it supervises on a daily basis. This follows because the supervising employer is in the best position to obtain the necessary injury and illness information due to its control over the worksite and its familiarity with the work tasks and the work environment...
...[T]he proposal did not alter the long-standing meanings of the terms employee, employer or employment relationship. The day-to-day supervision test for identifying the employer who is responsible for compliance with Part 1904 is a continuation of OSHA's former policy, and is consistent with the common law test. The comments indicate that many employers are not aware that they need to keep records for leased workers, temporary workers, and workers who are inaccurately labeled "independent contractors" but are in fact employees. However, these workers are employees under both the former rule and the final rule. Incorporating these requirements into the regulatory text can only help to improve the consistency of the data by clarifying the employer's responsibilities.
The 1904 rule does not require an employer to record injuries and illnesses that occur to workers supervised by independent contractors. However, the label assigned to a worker is immaterial if it does not reflect the economic realities of the relationship. For example, an employment contract that labels a hired worker as an independent contractor will have no legal significance for Part 1904 purposes if in fact the hiring employer exercises day-to-day supervision over that worker, including directing the worker as to the manner in which the details of the work are to be performed. If the contractor actually provides day-to-day supervision for the employee, then the contractor is responsible for compliance with Part 1904 as to that employee...
OSHA has rejected the suggestions that either the payroll or workers' compensation employer keep the OSHA 1904 records. The Agency believes that in the majority of circumstances the payroll employer will also be the workers' compensation employer and there is no difference in the two suggestions. Temporary help services typically provide the workers' compensation insurance coverage for the employees they provide to other employers. Therefore, our reasons for rejecting these suggestions are the same. OSHA agrees that there are good arguments for both scenarios: 1. Including injuries and illnesses in the records of the leasing employer (the payroll or workers' compensation employer and 2. For including these cases in the records of the controlling employer. Requiring the payroll or workers' compensation employer to keep the OSHA records would certainly be a simple and objective method. There would be no doubt about who keeps the records. However, including the cases in the records of the temporary help agency erodes the value of the injury and illness records for statistical purposes, for administering safety and health programs at individual worksites, and for government inspectors conducting safety and health inspections or consultations. The benefits of simplification and clarity do not outweigh the potential damage to the informational value of the records, for the reasons discussed below.
First, the employer who controls the workers and the work environment is in the best position to learn about all the injuries and illnesses that occur to those workers. Second, when the data are collected for enforcement and research use and for priority setting, the injury and illness data are clearly linked to the industrial setting that gave rise to them. Most important, transferring the recording/reporting function from the supervising employer to the leasing firm would undermine rather than facilitate one of the most important goals of Part 1904 -- to assure that work-related injury and illness information gets to the employer who can use it to abate work-related hazards. If OSHA were to shift the recordkeeping responsibility from the controlling employer to the leasing firm, the records would not be readily available to the employer who can make best use of them. OSHA would need to require the leasing firm to provide the controlling employer with copies of the injury and illness logs and other reports to meet this purpose. This would be both burdensome and duplicative.
Requiring the controlling (host) employer to record injuries and illnesses for employees that they control has several advantages. First, it assigns the injuries and illnesses to the individual workplace with the greatest amount of control over the working conditions that led to the worker's injury or illness. Although both the host employer and the payroll employer have safety and health responsibilities, the host employer generally has more control over the safety and health conditions where the employee is working. To the extent that the records connect the occupational injuries and illnesses to the working conditions in a given workplace, the host employer must include these cases to provide a full and accurate safety and health record for that workplace.
If this policy were not in place, industry-wide statistics would be skewed. Two workplaces with identical numbers of injuries and illnesses would report different statistics if one relied on temporary help services to provide workers, while the other did not. Under OSHA's policy, when records are collected to generate national injury and illness statistics, the cases are properly assigned to the industry where they occurred. Assigning these injuries and illnesses to temporary help services would not accurately reflect the type of workplace that produced the injuries and illnesses. It would also be more difficult to compare industries. To illustrate this point, consider a hypothetical industry that relies on temporary help services to provide 10% of its labor force. Assuming that the temporary workers experience workplace injury and illness at the same rate as traditional employees, the Nation's statistics would underrepresent that industry's injury and illness numbers by 10%. If another industry only used temporary help services for 1% of the labor force, its statistics would be closer to the real number, but comparisons to the 10% industry would be highly suspect.
The policy also makes it easier to use an industry's data to measure differences that occur in that industry over time. Over the last 20 years, the business community has relied increasingly on workers from temporary help services, employee leasing companies, and other temporary employees. If an industry sector as a whole changed its practices to include either more or fewer temporary workers over time, comparisons of the statistics over several years might show trends in injury and illness experience that simply reflected changing business practices rather than real changes in safety and health conditions...
OSHA agrees with these commenters that there is a potential for double counting of injuries and illnesses for workers provided by a personnel supply service. We do not intend to require both employers to record each injury or illness. To solve this problem, the rule, at Section 1904.31(b)(4), specifically states that both employers are not required to record the case, and that the employers may coordinate their efforts so that each case is recorded only once -- by the employer who provides day-to-day supervision. When the employers involved choose to work with each other, or when both employers understand the Part 1904 regulations as to who is required to record the cases and who is not, there will not be duplicative recording and reporting...
OSHA believes that many employers already share information about these injuries and illnesses to help each other with their own respective safety and health responsibilities. For example, personnel service employers need information to process workers' compensation claims and to determine how well their safety and health efforts are working, especially those involving training and the use of personal protective equipment. The host employer needs information on conditions in the workplace that may have caused the injuries or illnesses...
...The personnel leasing firm will not necessarily have better information than the host employer about the worker's exposures or accidents in previous assignments, previously recorded injuries or illnesses, or the aftermath of an injury or illness. And the personnel leasing firm will certainly have less knowledge of and control over the work environment that may have caused, contributed to, or significantly aggravated an injury or illness. As described above, the two employers have shared responsibilities and may share information when there is a need to do so.
If Part 1904 records are inaccurate due to lack of reasonably reliable data about leased employees, there are ways for OSHA to address the problem. First, the OSH Act does not impose absolutely strict liability on employers. The controlling employer must make reasonable efforts to acquire necessary information in order to satisfy Part 1904, but may be able to show that it is not feasible to comply with an OSHA recordkeeping requirement. If entries for temporary workers are deficient in some way, the em-ployer can always defend against citation by showing that it made the efforts that a reasonable employer would have made under the particular circumstances to obtain more complete or accurate data...
OSHA has decided not to base recording obligations on the temporary employee's length of employment. Recording the injuries and illnesses of some temporary employees and not others would not improve the value or accuracy of the statistics, and would make the system even more inconsistent and complex. In OSHA's view, the duration of the relationship is much less important than the element of control. In the example of the temporary nurse's aide, for OSHA recordkeeping purposes the worker would be considered an employee of the facility for the days he or she works under the day-to-day supervision of the host facility...
Because OSHA is using the common law concepts to determine which workers are to be included in the records, a worker who is covered in terms of recording an injury or illness is also covered for counting purposes and for the annual summary. If a given worker is an employee under the common law test, he or she is an employee for all OSHA recordkeeping purposes. Therefore, an employer must consider all of its employees when determining its eligibility for the small employer exemption, and must provide reasonable estimates for hours worked and average employment on the annual summary. OSHA has included instructions on the back of the annual summary to help with these calculations.
...OSHA's view is that a given establishment should have one OSHA Log and only one Log. Injuries and illnesses for all the employees at the establishment are entered into that record to create a single summary at the end of the year. OSHA does not require temporary workers or any other types of workers to be identified with special titles in the job title column, but also does not prohibit the practice. This column is used to list the occupation of the injured or ill worker, such as laborer, machine operator, or nursing aide. However, OSHA does encourage employers to analyze their injury and illness data to improve safety and health at the establishment. In some cases, identifying temporary or contract workers may help an employer to manage safety and health more effectively. Thus an employer may supplement the OSHA Log to identify temporary or contract workers, although the rule does not require it...
These workers should be evaluated just as any other worker. If a student or intern is working as an unpaid volunteer, he or she would not be an employee under the OSH Act and an injury or illness of that employee would not be entered into the Part 1904 records. If the worker is receiving compensation for services, and meets the common law test discussed earlier, then there is an employer-employee relationship for the purposes of OSHA recordkeeping. The employer in that relationship must evaluate any injury or illness at the establishment and enter it into the records if it meets the recording criteria.
To calculate the total hours worked by all employees, include the hours worked by salaried, hourly, part-time and seasonal workers, as well as hours worked by other workers you supervise (e.g., workers supplied by a temporary help service). Do not include vacation, sick leave, holidays, or any other non-work time even if employees were paid for it. If your establishment keeps records of only the hours paid or if you have employees who are not paid by the hour, you must estimate the hours that the employees actually worked.
Question 32-2. If an employer has no recordable cases for the year, is an OSHA 300-A, Annual Summary, still required to be completed, certified and posted?
Yes. After the end of the year, employers must review the Log to verify its accuracy, summarize the 300 Log information on the 300A summary form, and certify the summary (a company executive must sign the certification). This information must then be posted for three months, from February 1 to April 30.
Question 32-3. If employers electronically post the OSHA 300-A Summary of Work-related Injuries and Illnesses, are they in compliance with the posting requirements of 1904.32 (b) (5)?
No. The recordkeeping rule allows all forms to be kept on computer equipment or at an alternate location, as long as the employer can produce the data when needed. Section 1904.32 (b) (5), requires employers to post a copy of the Annual Summary in each establishment, where notices are normally posted [see 1903.2(a)], no later than February 1 of the year following the year covered by the records and kept in place until April 30. Only the OSHA 300-A Summary form should be posted.
Section 1904.32 Annual summary.
At the end of each calendar year, section 1904.32 of the final rule requires each covered employer to review his or her OSHA 300 Log for completeness and accuracy and to prepare an Annual Summary of the OSHA 300 Log using the form OSHA 300-A, Summary of Work-Related Injuries and Illnesses, or an equivalent form. The summary must be certified for accuracy and completeness and be posted in the workplace by February 1 of the year following the year covered by the summary. The summary must remain posted until April 30 of the year in which it was posted.
Preparing the Annual Summary requires four steps: reviewing the OSHA 300 log, computing and entering the summary information on the Form 300-A, certification, and posting. First, the employer must review the Log as extensively as necessary to make sure it is accurate and complete. Second, the employer must total the columns on the Log; transfer them to the summary form; and enter the calendar year covered, the name of the employer, the name and address of the establishment, the average number of employees on the establishment's payroll for the calendar year, and the total hours worked by the covered employees. If there were no recordable cases at the establishment for the year covered, the summary must nevertheless be completed by entering zeros in the total for each column of the OSHA 300 Log. If a form other than the OSHA 300-A is used, as permitted by paragraph 1904.29(b)(4), the alternate form must contain the same information as the OSHA 300-A form and include identical statements concerning employee access to the Log and Summary and employer penalties for falsifying the document as are found on the OSHA 300-A form.
Third, the employer must certify to the accuracy and completeness of the Log and Summary, using a two-step process. The person or persons who supervise the preparation and maintenance of the Log and Summary (usually the person who keeps the OSHA records) must sign the certification statement on the form, based on their direct knowledge of the data on which it was based. Then, to ensure greater awareness and accountability of the recordkeeping process, a company executive, who may be an owner, a corporate officer, the highest ranking official working at the establishment, or that person's immediate supervisor, must also sign the form to certify to its accuracy and completeness. Certification of the summary attests that the individual making the certification has a reasonable belief, derived from his or her knowledge of the process by which the information in the Log was reported and recorded, that the Log and summary are "true" and "complete."
Fourth, the Summary must be posted no later than February 1 of the year following the year covered in the Summary and remain posted until April 30 of that year in a conspicuous place where notices are customarily posted. The employer must ensure that the Summary is not defaced or altered during the 3 month posting period.
1. Company Executive Certification of the Annual Summary.
The final rule carries forward the proposed rule's requirement for certification by a higher ranking company official, with minor revision. OSHA concludes that the company executive certification process will ensure greater completeness and accuracy of the Summary by raising accountability for OSHA recordkeeping to a higher managerial level than existed under the former rule. OSHA believes that senior management accountability is essential if the Log and Annual Summary are to be accurate and complete. The integrity of the OSHA recordkeeping system, which is relied on by the BLS for national injury and illness statistics, by OSHA and employers to understand hazards in the workplaces, by employees to assist in the identification and control of the hazards identified, and by safety and health professionals everywhere to analyze trends, identify emerging hazards, and develop solutions, is essential to these objectives. Because OSHA cannot oversee the preparation of the Log and Summary at each establishment and cannot audit more than a small sample of all covered employers' records, this goal is accomplished by requiring employers or company executives to certify the accuracy and completeness of the Log and Summary.
The company executive certification requirement imposes different obligations depending on the structure of the company. If the company is a sole proprietorship or partnership, the certification may be made by the owner. If the company is a corporation, the certification may be made by a corporate officer. For any management structure, the certification may be made by the highest ranking company official working at the establishment covered by the Log (for example, the plant manager or site supervisor), or the latter official's supervisor (for example, a corporate or regional director who works at a different establishment, such as company headquarters).
The company executive certification is intended to ensure that a high ranking company official with responsibility for the recordkeeping activity and the authority to ensure that the recordkeeping function is performed appropriately has examined the records and has a reasonable belief, based on his or her knowledge of that process, that the records are accurate and complete.
The final rule does not specify how employers are to evaluate their recordkeeping systems to ensure their accuracy and completeness or what steps an employer must follow to certify the accuracy and completeness of the Log and Summary with confidence. However, to be able to certify that one has a reasonable belief that the records are complete and accurate would suggest, at a minimum, that the certifier is familiar with OSHA's recordkeeping requirements, and the company's recordkeeping practices and policies, has read the Log and Summary, and has obtained assurance from the staff responsible for maintaining the records (if the certifier does not personally keep the records) that all of OSHA's requirements have been met and all practices and policies followed. In most if not all cases, the certifier will be familiar with the details of some of the injuries and illnesses that have occurred at the establishment and will therefore be able to spot check the OSHA 300 Log to see if those cases have been entered correctly. In many cases, especially in small to medium establishments, the certifier will be aware of all of the injuries and illnesses that have been reported at the establishment and will thus be able to inspect the forms to make sure all of the cases that should have been entered have in fact been recorded. The certification required by the final rule may be made by signing and dating the certification section of the OSHA 300-A form, which replaces the summary portion of the former OSHA 200 form, or by signing and dating a separate certification statement and appending it to the OSHA Form 300-A. A separate certification statement must contain the identical penalty warnings and employee access information as found on the OSHA Form 300-A. A separate statement may be needed when the certifier works at another location and the certification is mailed or faxed to the location where the Summary is posted...
...The criminal penalties referred to in paragraph 1904.9(a) of the former rule are authorized by section 17(g) of the OSH Act and do not need to be repeated in the final rule to be enforced. Similarly, the administrative citations and penalties referred to in paragraph 1904.9(b) of the former rule are authorized by sections 9 and 17 of the OSH Act. The warning statement on the final OSHA 300-A form or its equivalent should be sufficient to remind those who certify the forms of their legal obligations under the Act...
Although OSHA believes that the final rule has many features that will enhance the accuracy and completeness of reporting, the Agency has included a company executive level of certification in the final rule. OSHA believes that company executive certification will raise employer awareness of the importance of the OSHA records, improve their accuracy and completeness (and thus utility), and decrease any underreporting incentive.
The final rule therefore requires a higher level company official to certify to their accuracy and completeness. Thus the final rule reflects OSHA's agreement with those commenters who stated that the Log and Summary must be actively overseen by higher level management and that certification by such an official would make management's responsibility for the accuracy and completeness of the system clear...
...In the final rule, the person who must perform the certification must be a company executive. OSHA does not believe that an industrial hygienist or a safety officer is likely to have sufficient authority to ensure the integrity of a company's recordkeeping process. Therefore, the final rule requires that the certification be provided by an owner of a sole proprietorship or partnership, an officer of the corporation, the highest-ranking official at the establishment, or that person's supervisor...
The certification required by the final rule must be based on the official's "reasonable belief" that the Log and Summary are accurate and complete. Certification thus means that the certifying official has a general understanding of the OSHA recordkeeping requirements, is familiar with the company's recordkeeping progess, and knows that the company has effective recordkeeping procedures and uses those procedures to produce accurate and complete records. The precise meaning of "reasonable belief" will be determined on a case-by-case basis because circumstances vary from establishment to establishment and decisions about the recordability of individual cases may differ, depending upon case-specific details.
2. Number of employees and hours worked.
...The final rule requires employers to include in the Annual Summary (the OSHA Form 300-A) the annual average number of employees covered by the Log and the total hours worked by all covered employees...
OSHA's view is that the value of the total hours worked and average number of employees information requires its inclusion in the Summary, and the final rule reflects this determination. Having this information will enable employers and employees to calculate injury and illness incidence rates, which are widely regarded as the best statistical measure for the purpose of comparing an establishment's injury and illness experience with national statistics, the records of other establishment, or trends over several years. Having the data available on the Form 300-A will also make it easier for the employer to respond to government requests for the data, which occurs when the BLS and OSHA collect the data by mail, and when an OSHA or State inspector visits the facility. In particular, it will be easier for the employer to provide the OSHA inspector with the hours worked and employment data for past years...
...[T]he rule does not require employers to use any particular method of calculating the totals, thus providing employers who do not maintain certain records--for example the total hours worked by salaried employees--or employers without sophisticated computer systems, the flexibility to obtain the information in any reasonable manner that meets the objectives of the rule. Employers who do not have the ability to generate precise numbers can use various estimation methods. For example, employers typically must estimate hours worked for workers who are paid on a commission or salary basis. Additionally, the instructions for the OSHA 300-A Summary form include a worksheet to help the employer calculate the total numbers of hours worked and the average number of employees covered by the log.
3. Extended posting period.
The final rule's requirement increasing the summary Form 300-A posting period from one month to three months is intended to raise employee awareness of the recordkeeping process (especially that of new employees hired during the posting period) by providing greater access to the previous year's summary without having to request it from management...
...OSHA has decided to adopt a 3-month posting period. The additional posting period will provide employees with additional opportunity to review the summary information, raise employee awareness of the records and their right to access them, and generally improve employee participation in the recordkeeping system without creating a "wallpaper" posting of untimely data. In addition, OSHA has concluded that any additional burden on employers will be minimal at best and, in most cases, insignificant. All the final rule requires the employer to do is to leave the posting on the bulletin board instead of removing it at the end of the one-month period.
The final rule thus requires that the Summary be posted from February 1 until April 30, a period of three months; OSHA believes that the 30 days in January will be ample, as it has been in the past, for preparing the current year's Summary preparatory to posting.
4. Review of the records.
The provisions of the final rule requiring the employer to review the Log entries before totaling them for the Annual Summary are intended as an additional quality control measure that will improve the accuracy of the information in the Annual Summary, which is posted to provide information to employees and is also used as a data source by OSHA and the BLS. Depending on the size of the establishment and the number of injuries and illnesses on the OSHA 300 Log, the employer may wish to cross-check with any other relevant records to make sure that all the recordable injuries and illnesses have been included on the Summary. These records may include workers' compensation injury reports, medical records, company accident reports, and/or time and attendance records.
In the final rule, OSHA has not adopted regulatory language that requires formal audits of the OSHA Part 1904 records. However, the final rule does require employers to review the OSHA records as extensively as necessary to ensure their accuracy. The Agency believes that including audit provisions is not necessary because the high-level certification requirement will ensure that recordkeeping receives the appropriate level of management attention...
...OSHA has not required records audits in the final rule because the Agency believes that the combination of final rule requirements providing for employee participation (section 1904.35), protecting employees against discrimination for reporting work-related injuries and illnesses to their employer (section 1904.36), requiring review by employers of the records at the end of the year, and mandating two level certification of the records will provide the quality control mechanisms needed to improve the quality of the OSHA records.
Deletions from the former rule.
In the final rule, OSHA has decided not to include the proposed requirement for individual mailings as unnecessary because final paragraph 1904.30(b)(3) requires that every employee be linked, for recordkeeping purposes, to at least one establishment keeping a Log and Summary that will be prepared and posted. In other words, every employee covered by the rule will have his or her injuries or illnesses recorded on a particular establishment's Log, even if that employee does not routinely report to that establishment or is temporarily working there. Thus every employee will have 3-month access to the Log and Summary at the posted location or may obtain a copy the next business day under paragraph 1904.35(b)(2)(iii), making the need for hand-delivery or mailing unnecessary...
...Closing an establishment does not...relieve an employer of the obligation to prepare and certify the Summary for whatever portion of the calendar year the establishment was operating, retain the Sum-mary, and make the Summary accessible to employees and government officials...
OSHA believes, based on the record evidence and its own extensive recordkeeping experience, that posting the Summary is important to safety and health for all the reasons described above. Some of the suggested alternatives may be useful, and OSHA encourages employers to use any practices that they believe will enhance their own and employee awareness of safety and health issues, provided that they also comply fully with the final rule's posting requirements...
OSHA believes that permitting centralized posting only would substantially interfere with ready employee access to the Log, especially for employers operating many different sites. Ther record does not suggest that retaining the requirement for posting summaries at each establishment will be burdensome to employers and the final rule accordingly requires that multi-establishment employers post a Summary in each establishment relating that establishment's injury and illness experience for the preceding year.
Section 1904.33 Retention and updating.
Section 1904.33 of the final rule deals with the retention and updating of the OSHA Part 1904 records after they have been created and summarized. The final rule requires the employer to save the OSHA 300 Log, the Annual Summary, and the OSHA 301 Incident Report forms for five years following the end of the calendar year covered by the records. The final rule also requires the employer to update the entries on the OSHA 300 Log to include newly discovered cases and show changes that have occurred to previously recorded cases. The provisions in section 1904.33 state that the employer is not required to update the 300A Annual Summary or the 301 Incident Reports, although the employer is permitted to update these forms if he or she wishes to do so.
The final rule requires employers to retain their OSHA 300 and 301 records for five years following the end of the year to which the records apply. Additionally, employers must update their OSHA 300 Logs under two circumstances. First, if the employer discovers a recordable injury or illness that has not previously been recorded, the case must be entered on the forms. Second, if a previously recorded injury or illness turns out, based on later information, not to have been recorded properly, the employer must modify the previous entry. For example, if the description or outcome of a case changes (a case requiring medical treatment becomes worse and the employee must take days off work to recuperate), the employer must remove or line out the original entry and enter the new information. The employer also has a duty to enter the date of an employee's return to work or the date of an injured worker's death on the Form 301; OSHA considers the entering of this information an integral part of the recordkeeping for such cases. The Annual Summary and the Form 301 need not be updated, unless the employer wishes to do so. The requirements in this section 1904.33 do not affect or supersede any longer retention periods specified in other OSHA standards and regulations, e.g., in OSHA health standards such as Cadmium, Benzene, or Lead (29 CFR 1910.1027, 1910.1028, and 1910.1025, respectively)...
In this final rule, OSHA has decided to retain the five-year retention requirement for OSHA injury and illness records because the longer time period will enable employers, employees, and researchers to obtain sufficient data to discover patterns and trends of illnesses and injuries and, in many cases, to demonstrate the statistical significance of such data.
In addition, OSHA has concluded that the five-year retention period will add little additional cost or administrative burden, since relatively few cases will surface more than three years after the injury and illness occurred, and the vast majority of cases are resolved in a short time and do not require updating. In addition, OSHA believes that other provisions of the final rule (e.g., computerization of records, centralized recordkeeping, and the capping of day counts) will significantly reduce the recordkeeping costs and administrative burden associated with the tracking of long-term cases...
...The final rule requires Log updates to be made on a continuing basis, i.e., as new information is discovered. For example, if a new case is discovered during the retention period, it must be recorded within 7 calendar days of discovery, the same interval required for the recording of any new case. If new information about an existing case is discovered, it should be entered within 7 days of receiving the new information. OSHA has also decided to require updating over the entire five-year retention period...
OSHA has decided not to require the updating of annual summaries. Eliminating this requirement from the final rule will minimize employers' administrative burdens and costs, avoid duplication, and avoid the complications associated with the certification of updated summaries, the replacement of posted summaries, and the transmission of summaries to remote sites. The Agency concludes that updating the OSHA Form 300 or its equivalent for a period of five years will provide a sufficient amount of accurate information for recordkeeping purposes. OSHA is persuaded that updating the year-end summary would provide little benefit as long as the information from which the summaries are derived (the OSHA Form 300) is updated for a full five-year period...
...[T]he final rule makes it clear that employers may, if they choose, update either the Summary or the Form 301.
Section 1904.34 Change in business ownership Section 1904.34 of the final rule addresses the situation that arises when a particular employer ceases operations at an establishment during a calendar year, and the establishment is then operated by a new employer for the remainder of the year. The phrase "change of ownership," for the purposes of this section, is relevant only to the transfer of the responsibility to make and retain OSHA-required injury and illness records. In other words, if one employer, as defined by the OSH Act, transfers ownership of an establishment to a different employer, the new entity becomes responsible for retaining the previous employer's past OSHA-required records and for creating all new records required by this rule.
The final rule requires the previous owner to transfer these records to the new owner, and it limits the recording and recordkeeping responsibilities of the previous employer only to the period of the prior owner. Specifically, section 1904.34 provides that if the business changes ownership, each employer is responsible for recording and reporting work-related injuries and illnesses only for that period of the year during which each employer owned the establishment. The selling employer is required to transfer his or her Part 1904 records to the new owner, and the new owner must save all records of the establishment kept by the prior owner. However, the new owner is not required to update or correct the records of the prior owner, even if new information about old cases becomes available...
Employers are required to let employees know how and when to report work-related injuries and illnesses. This means that the employer must set up a way for the employees to report work-related injuries and illnesses and tell its employees how to use it. The Recordkeeping rule does not specify how the employer must accomplish these objectives, so employers have flexibility to set up systems that are appropriate to their workplace. The size of the workforce, employee's language proficiency and literacy levels, the workplace culture, and other factors will determine what will be effective for any particular workplace.
Question 35-2. Do I have to give my employees and their representative's access to the OSHA injury and illness records?
Yes, your employees, former employees, their personal representatives, and their authorized employee representatives have the right to access the OSHA 300 Log Form and the OSHA 300-A Summary Form. The employer must give the requester a copy of the OSHA 300 Form and the OSHA 300-A Form by the end of the next business day. In addition, employees and their representatives have the right to access the OSHA 301 Incident Form with some limitations, in section 1904.35(b)(2)(v)(B) of the recordkeeping regulation.
Section[s] 1904.35 Employee Involvement...
One of the goals of the final rule is to enhance employee involvement in the recordkeeping process. OSHA believes that employee involvement is essential to the success of all aspects of an employer's safety and health program. This is especially true in the area of recordkeeping, because free and frank reporting by employees is the cornerstone of the system. If employees fail to report their injuries and illnesses, the "picture" of the workplace that the employer's OSHA forms 300 and 301 reveal will be inaccurate and misleading. This means, in turn, that employers and employees will not have the information they need to improve safety and health in the workplace.
Section 1904.35 of the final rule therefore establishes an affirmative requirement for employers to involve their employees and employee representatives in the recordkeeping process. The employer must inform each employee of how to report an injury or illness, and must provide limited access to the injury and illness records for employees and their representatives...
Under the employee involvement provisions of the final rule, employers are required to let employees know how and when to report work-related injuries and illnesses. This means that the employer must establish a procedure for the reporting of work-related injuries and illnesses and train its employees to use that procedure. The rule does not specify how the employer must accomplish these objectives. The size of the workforce, employees' language proficiency and literacy levels, the workplace culture, and other factors will determine what will be effective for any particular workplace.
... The prominent employee involvement issues in the rulemaking were thus not whether employee involvement should be strengthened but to what extent and in what ways employees should be brought into the process.
...OSHA has strengthened the final rule to promote better injury and illness information by increasing employees' knowledge of their employers' recordkeeping program and by removing barriers that may exist to the reporting of work-related injuries and illnesses. To achieve this goal, the final rule establishes a simple two-part process for each employer who is required to keep records, as follows:
OSHA agrees with commenters that employees must know and understand that they have an affirmative obligation to report injuries and illnesses. Additionally, OSHA believes that many employers already take these actions as a common sense approach to discovering workplace problems, and that the rule will thus, to a large extent, be codifying current industry practice, rather than breaking new ground.
OSHA is convinced that a performance requirement, rather than specific requirements, will achieve this objective effectively, while still giving employers the flexibility they need to tailor their programs to the needs of their workplaces. The Agency finds that employee awareness and participation in the recordkeeping process is best achieved by such provisions of the final rule as the requirement to extend the posting period for the OSHA 300 summary, the addition of accessibility statements on the OSHA Summary, and requirements designed to facilitate employee access to records...
Employee access to OSHA injury and illness records
The Part 1904 final rule continues OSHA's longstanding policy of allowing employees and their representatives access to the occupational injury and illness information kept by their employers, with some limitations. However, the final rule includes several changes to improve employees' access to the information, while at the same time implementing several measures to protect the privacy interests of injured and ill employees. Section 1904.35 requires an employer covered by the Part 1904 regulation to provide limited access to the OSHA recordkeeping forms to current and former employees, as well as to two types of employee representatives. The first is a personal representative of an employee or former employee, who is a person that the employee or former employee designates, in writing, as his or her personal representative, or is the legal representative of a deceased or legally incapacitated employee or former employee. The second is an authorized employee representative, which is defined as an authorized collective bargaining agent of one or more employees working at the employer's establishment.
Section 1904.35 accords employees and their representatives three separate access rights. First, it gives any employee, former employee, personal representative, or authorized employee representative the right to a copy of the current OSHA 300 Log, and to any stored OSHA 300 log(s), for any establishment in which the employee or former employee has worked. The employer must provide one free copy of the OSHA 300 Log(s) by the end of the next business day. The employee, former employee, personal representative or authorized employee representative is not entitled to see, or to obtain a copy of, the confidential list of names and case numbers for privacy cases. Second, any employee, former employee, or personal representative is entitled to one free copy of the OSHA 301 Incident Report describing an injury or illness to that employee by the end of the next business day. Finally, an authorized employee representative is entitled to copies of the right-hand portion of all OSHA 301 forms for the establishment(s) where the agent represents one or more employees under a collective bargaining agreement. The right-hand portion of the 301 form contains the heading ["Information about the case,"] and elicits information about how the injury occurred, including the employee's actions just prior to the incident, the materials and tools involved, and how the incident occurred, but does not contain the employee's name. No information other than that on the righthand portion of the form may be disclosed to an authorized employee representative. The employer must provide the authorized employee representative with one free copy of all the 301 forms for the establishment within 7 calendar days.
Employee privacy is protected in the final rule in paragraphs 1904.29(b)(7) to (10). Paragraph 1904.29(b)(7) requires the employer to enter the words "privacy case" on the OSHA 300 Log, in lieu of the employee's name, for recordable privacy concern cases involving the following types of injuries and illnesses: (i) an injury from a needle or sharp object contaminated by another person's blood or other potentially infectious material; (ii) an injury or illness to an intimate body part or to the reproductive system; (iii) an injury or illness resulting from a sexual assault; (iv) a mental illness; (v) an illness involving HIV, hepatitis; or tuberculosis, or (vi) any other illness, if the employee independently and voluntarily requests that his or her name not be entered on the log...
The employer may take additional action in privacy concern cases if warranted. Paragraph 1904.29(b)(9) allows the employer to use discretion in describing the nature of the injury or illness in a privacy concern case, if the employer has a reasonable basis to believe that the injured or ill employee may be identified from the records even though the employee's name has been removed. Only the six types of injuries and illnesses listed in Paragraph 1904.29(b)(7) may be considered privacy concern cases, and thus the additional protection offered by paragraph 1904.29(b)(9) applies only to such cases.
Paragraph 1904.29(b)(10) protects employee privacy if the employer decides voluntarily to disclose the OSHA 300 and 301 forms to persons other than those who have a mandatory right of access under the final rule. The paragraph requires the employer to remove or hide employees' names or other personally identifying information before disclosing the forms to persons other than government representatives, em-ployees, former employees or authorized representatives, as required by paragraphs 1904.40 and 1904.35, except in three cases. The employer may disclose the forms, complete with personally identifying information, [ ] only: (i) to an auditor or consultant hired by the employer to evaluate the safety and health program; (ii) to the extent necessary for processing a claim for workers' compensation or other insurance benefits; or (iii) to a public health authority or law enforcement agency for uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required under section 164.512 of the final rule on Standards for Privacy of Individually Identifiable Health Information, 45 CFR 164.512...
Balancing the Interests of Privacy and Access
OSHA historically has recognized that the Log and Incident Report (Forms 300 and 301, respectively) may contain information of a sufficiently intimate and personal nature that a reasonable person would wish it to remain confidential. In its 1978 records access regulation (29 CFR 1910.1020), OSHA addressed the privacy implications of its decision to grant employee access to the Log. The agency noted that while Log entries are intended to be brief, they may contain medical information, including diagnoses of specific illnesses, and that disclosure to other employees, former employees or their representatives raised a sensitive privacy issue. 43 FR 31327 (1978). However, OSHA concluded that disclosure of the Log to current and former employees and their representatives benefits these employees generally by increasing their awareness and understanding of the health and safety hazards to which they are, or have been, exposed.
OSHA found that this knowledge "will help employees to protect themselves from future occurrences," and that "[i]n such cases, the right of privacy must be tempered by the obvious exigencies of informing employees about the effects of workplace hazards."...
OSHA continues to believe that granting employees a broad right of access to injury and illness records serves important public interests. There is persuasive evidence that access by employees and their representatives to the Log and the Incident Report serves as a useful check on the accuracy of the employer's recordkeeping and promotes greater employee involvement in prevention programs that contribute to safer, more healthful workplaces...
There exist at present no mechanisms to protect against unwarranted disclosure of private information contained in OSHA records. While Agency policy is that employees and their representatives with access to records should treat the information contained therein as confidential except as necessary to further the purposes of the Act, the Secretary lacks statutory authority to enforce such a policy against employees and representatives (e.g., 29 U.S.C. Sections 658, 659) (Act's enforcement mechanisms directed solely at employers)...
OSHA has concluded that the disclosure of occupational injury and illness records to employees and their representatives serves important public policy interests. These interests support a requirement for access by employees and their representatives to personally identifiable information for all but a limited number of cases recorded on the Log, and to all information on the righthand side of the Form 301. However, OSHA also concludes that prior Agency access policies may not have given adequate consideration to the harm which could result from disclosure of intimate medical information. In the absence of effective safeguards against unwarranted use or disclosure of private information in the injury and illness records, confidentiality must be preserved for particularly sensitive cases. These "privacy concern cases" listed in paragraph 1904.29 (b)(7) of the final rule involve diseases, such as AIDS and hepatitis, other illnesses if the employee voluntarily requests confidentiality, as well as certain types of injuries, the disclosure of which could be particularly damaging or embarrassing to the affected employee...
...[T]he final rule requires that the employer withhold the employee's name from the OSHA 300 Log for each "privacy concern case," and maintain a separate confidential list of employee names and case numbers. In all other respects, the final rule ensures full access to the OSHA Log by employees, former employees, personal representatives and authorized employee representatives.
Protections Against Broad Public Access
...OSHA agrees that confidentiality of injury and illness records should be maintained except for those persons with a legitimate need to know the information. This is a logical extension of the agency's position that a balancing test is appropriate in determining the scope of access to be granted employees and their representatives. Under this test, "the fact that protected information must be disclosed to a party who has need for it* * * does not strip the information of its protection against disclosure to those who have no similar need." Fraternal Order of Police, 812 F2d at 118.
OSHA has determined that employees, former employees and authorized employee representatives have a need for the information that justifies their access to records, including employee names, for all except privacy concern cases. While the possibility exists that employees and their representatives with access to the records could disclose the information to the general public, OSHA does not believe that this risk is sufficient to justify restrictions on the use of the records by persons granted access under sections 1904.40 and 1904.35. Strong policy and legal considerations militate against placing restrictions on employees' and employee representatives' use of the injury and illness information.
There is also a concern that employers may voluntarily grant access to OSHA records to persons outside their organization, who do not need the information for safety and health purposes. To protect employee confidentiality in these circumstances, paragraph 1904.29(b)(10) requires employers generally to remove or shield employee names and other personally identifying information when they disclose the OSHA forms to persons other than government representatives, employees, former employees or authorized employee representatives. Employers remain free to disclose unredacted records for purposes of evaluating a safety and health program or safety and health conditions at the workplace, processing a claim for workers' compensation or insurance benefits, or carrying out the public health or law enforcement functions described in section 164.512 of the final rule on Standards for Privacy of Individually Identifiable Health Information.
OSHA believes that this provision protects employee privacy to a reasonable degree consistent with the legitimate business needs of employers and sound public policy considerations...
Misuse of the Records by Employees and Their Representatives
...While there may be instances where employees share the data with third parties who normally would not be allowed to access the data directly, the final rule contains no enforceable restrictions on use by employees or their representatives. Employees and their representatives might reasonably fear that they could be found personally liable for violations of such restrictions. This would have a chilling effect on employees' willingness to use the records for safety and health purposes, since few employees would voluntarily risk such liability. Moreover, despite the concerns of commenters about abuse problems, OSHA has not noted any significant problems of this type in the past. This suggests that, if such problems exist, they are infrequent. In addition, as noted in the privacy discussion above, a prohibition on the use of the data by employees or their representatives is beyond the scope of OSHA's enforcement authority. For these reasons, the employer may not require an employee, former employee or designated employee representative to agree to limit the use of the records as a condition for viewing or obtaining copies of records.
OSHA has added a statement to the Log and Incident Report forms indicating that these records contain information related to employee health and must be used in a manner that protects the confidentiality of employees to the extent possible while the information is used for occupational safety and health purposes. This statement is intended to inform employees and their representatives of the potentially sensitive nature of the information in the OSHA records and to encourage them to maintain employee confidentiality if compatible with the safety and health uses of the information. Encouraging parties with access to the forms to keep the information confidential where possible is reasonable and should not discourage the use of the information for safety and health purposes. OSHA stresses, however, that the statement does not reflect a regulatory requirement limiting the use of records by those with access under sections 1904.35 and 1904.40.
The Records Access Requirement and the ADA
...Section 12112(d)(3)(B) of the ADA permits an employer to require a job applicant to submit to a medical examination after an offer of employment has been made but before commencement of employment duties, provided that medical information obtained from the examination is kept in a confidential medical file and not disclosed except as necessary to inform supervisors, first aid and safety personnel, and government officials investigating compliance with the ADA. Section 12112(d)(4)(C) requires that the same confidentiality protection be accorded health information obtained from a voluntary medical examination that is part of an employee health program.
By its terms, the ADA requires confidentiality for information obtained from medical examinations given to prospective employees, and from medical examinations given as part of a voluntary employee health program. The OSHA injury and illness records are not derived from pre-employment or voluntary health programs. The information in the OSHA injury and illness records is similar to that found in workers' compensation forms, and may be obtained by employers by the same process used to record needed information for workers' compensation and insurance purposes. The Equal Employment Opportunity Commission (EEOC) recognizes a partial exception to the ADA's strict confidentiality requirements for medical information regarding an employee's occupational injury or workers' compensation claim. See EEOC Enforcement Guidance: Workers' Compensation and the ADA, 5 (September 3, 1996). Therefore, it is not clear that the ADA applies to the OSHA injury and illness records.
Even assuming that the OSHA injury and illness records fall within the literal scope of the ADA's confidentiality provisions, it does not follow that a conflict arises. The ADA states that "nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law. * * *" 29 U.S.C. 12201(b). In enacting the ADA, Congress was aware that other federal standards imposed requirements for testing an employee's health, and for disseminating information about an employee's medical condition or history, determined to be necessary to preserve the health and safety of employees and the public. See H.R. Rep. No. 101-485 pt. 2, 101st Cong., 2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N. 356, 357 (noting, e.g., medical surveillance requirements of standards promulgated under OSH Act and Federal Mine Safety and Health Act, and stating "[t]he Committee does not intend for [the ADA] to override any medical standard or requirement established by Federal * * * law * * * that is job-related and consistent with business necessity"). See also 29 CFR part 1630 App. p. 356. The ADA recognizes the primacy of federal safety and health regulations; therefore such regulations, including mandatory OSHA recordkeeping requirements, pose no conflict with the ADA. Cf. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999) ("When Congress enacted the ADA, it recognized that federal safety and health rules would limit application of the ADA as a matter of law.")
The EEOC, the agency responsible for administering the ADA, has recognized both in the implementing regulations at 29 CFR part 1630, and in interpretive guidelines, that the ADA yields to the requirements of other federal safety and health standards. The implementing regulation codified at 29 CFR 1630.15(e) explicitly states that an employer's compliance with another federal law or regulation may be a defense to a charge of violating the ADA:
(e) Conflict with other Federal laws. It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.
Interpretive guidance provided by the EEOC further underscores this point. The 1992 Technical Assistance Manual on Title I of the ADA states as follows:
4.6 Health and Safety Requirements of Other Federal or State Laws
The ADA recognizes employers' obligations to comply with requirements of other laws that establish health and safety standards. However, the [ADA] gives greater weight to Federal than to state or local law.
1. Federal Laws and Regulations
The ADA does not override health and safety requirements established under other Federal laws. If a standard is required by another Federal law, an employer must comply with it and does not have to show that the standard is job related and consistent with business necessity (emphasis added).
U.S. Equal Employment Opportunity Commission, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act, IV-16 (1992) (Technical Assistance Manual). The Technical Assistance Manual also states that, while medical-related information about employees must generally be kept confidential, an exception applies where "[o]ther Federal laws and regulations * * * require disclosure of relevant medical information." Assistance Manual at VI-12. See also Assistance Manual at VI-14-15 (actions taken by employers to comply with requirements imposed under the OSH Act are job related and consistent with business necessity). For these reasons, OSHA does not believe that the mandatory employee access provisions of the final recordkeeping rule conflict with the provisions of the ADA.
Times Allowed To Provide Records
...Under the final rule, an employer must provide a copy of the 300 Log to an employee, former employee, personal representative or authorized employee representative on the business day following the day on which an oral or written request for records is received. Likewise, when an employee, former employee or personal representative asks for copies of the 301 form for an injury or illness to that employee, the employer must provide a copy by the end of the next business day. OSHA finds that these are appropriate time frames for supplying a copy of the existing forms, which in the case of the Form 301 is a single page. The average 300 Log is also only one page, although employers who have a larger number of occupational injuries and illnesses will have more than one page.
The final rule allows the employer seven business days to provide copies of the OSHA 301 forms for all occupational injuries and illnesses that occur at the establishment.
...[A]s stated in the final rule, the employer may not provide the authorized employee representative with the information on the left side of the 301 form, so the employer needs additional time to redact this information. Because the final rule only provides a right of access to an authorized employee representative (authorized collective bargaining agent), the number of requests should not exceed the number of unions representing employees at the establishment.
...[T]he employer must provide only one free copy. If additional copies are requested, the employer may charge for the copies.
Charging Employees for Copies of the OSHA Records
...In the final rule, OSHA has implemented the proposed provision requiring employers to provide copies free of charge to employees who ask for the records.
...OSHA agrees that there are some circumstances where employers should have the option of charging for records. After receiving an initial, free copy of requested records, an employee, former employee, or designated representative may be charged a reasonable search and copying fee for duplicate copies of the records. However, no fee may be charged for an update of a previously requested record.
Section 1904.36 Prohibition against discrimination
...Section 1904.36 of the final rule makes clear that Section 11(c) of the Act prohibits employers from discriminating against employees for reporting workrelated injuries and illnesses. Section 1904.36 does not create a new obligation on employers. Instead, it clarifies that the OSH Act's anti-discrimination protection applies to employees who seek to participate in the recordkeeping process...
OSHA has also included in the final rule, in section 1904.36, a statement that section 11(c) of the OSH Act protects workers from employer retaliation for filing a complaint, reporting an injury or illness, seeking access to records to which they are entitled, or otherwise exercising their rights under the rule. This section of the rule does not impose any new obligations on employers or create new rights for employees that did not previously exist. In view of the evidence that retaliation against employees for reporting injuries is not uncommon and may be "growing," this section is intended to serve the informational needs of employees who might not otherwise be aware of their rights and to remind employers of their obligation not to discriminate...
If your workplace is located in a State that operates an OSHA-approved State Plan, you must follow the regulations of the State. However, these States must adopt occupational injury and illness recording and reporting requirements that are substantially identical to the requirements in Part 1904. State Plan States must have the same requirements as Federal OSHA for determining which injuries and illnesses are recordable and how they are recorded.
For Part 1904 provisions other than recording and reporting, State requirements may be more stringent than or supplemental to the Federal requirements. For example, a State Plan could require employers to keep records for the State, even though those employers have 10 or fewer employees (1904.1) or are within an industry exempted by the Federal rule. A State Plan could also require employers to keep additional supplementary injury and illness information, require employers to report fatality and multiple hospitalization incidents within a shorter time frame than Federal OSHA does (1904.39), require other types of incidents to be reported as they occur, require hearing loss to be recorded at a lower threshold level during CY 2002 (1904.10(c)), or impose other requirements.
No, but they are covered under the equivalent State rule in States that operate OSHA-approved State Plans. State rules must cover these workplaces and require the recording and reporting of work-related injuries and illnesses.
The following States have OSHA-approved plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Connecticut, New Jersey, and New York have plans that cover State and local government employees only.
Section 1904.37 State recordkeeping regulations
Section 1904.37 addresses the consistency of the recordkeeping and reporting requirements between Federal OSHA and those States where occupational safety and health enforcement is provided by an OSHA-approved State Plan. Currently, in 21 States and 2 territories, the State government has been granted authority to operate a State OSHA Plan covering both the private and public (State and local government) sectors under section 18 of the OSH Act (see the State Plan section of this preamble for a listing of these States). Two additional States currently operate programs limited in scope to State and local government employees only. State Plans, once approved, operate under authority of State law and provide programs of standards, regulations and enforcement which must be "at least as effective" as the Federal program. (State Plans must extend their coverage to State and local government employees, workers not otherwise covered by Federal OSHA regulations.) Section 1904.37 of the final rule describes what State Plan recordkeeping requirements must be identical to the Federal requirements, which State regulations may be different, and provides cross references to the State Plan regulations codified in Section 1902.3(k), 1952.4, and 1956.10(i). The provisions of Subpart A of 29 CFR part 1952 specify the regulatory discretion of the State Plans in general, and section 1952.4 spells out the regulatory discretion of the State Plans specifically for the recordkeeping regulation.
In the final rule, OSHA has rewritten the text of the corresponding proposed section and moved it into Subpart D of the final rule. Under Section 18 of the OSH Act, a State Plan must require employers in the State to make reports to the Secretary in the same manner and to the same extent as if the Plan were not in effect. Final section 1904.37 makes clear that States with approved State Plans must promulgate new regulations that are substantially identical to the final Federal rule. State Plans must have recording and reporting regulations that impose identical requirements for the recordability of occupational injuries and illnesses and the manner in which they are entered. These requirements must be the same for employers in all the States, whether under Federal or State Plan jurisdiction, and for State and local government employers covered only through State Plans, to ensure that the occupational injury and illness data for the entire nation are uniform and consistent so that statistics that allow comparisons between the States and between employers located in different States are created.
For all of the other requirements of the Part 1904 regulations, the regulations adopted by the State Plans may be more stringent than or supplemental to the Federal regulations, pursuant to paragraph 1952.4(b). This means that the States' recording and reporting regulations could differ in several ways from their Federal Part 1904 counterparts. For example, a State Plan could require employers to keep records for the State, even though those employers are within an industry exempted by the Federal rule. A State Plan could also require employers to keep additional supplementary injury and illness information, require employers to report fatality and multiple hospitalization incidents within a shorter timeframe than Federal OSHA does, require other types of incidents to be reported as they occur, or impose other requirements. While a State Plan must assure that all employee participation and access rights are assured, the State may provide broader access to records by employees and their representatives. However, because of the unique nature of the national recordkeeping program, States must secure Federal OSHA approval for these enhancements...
Because Federal OSHA does not provide coverage to State and local government employees, the State- Plan States may grant State recordkeeping variances to the State and local governments under their jurisdiction. However, the State must obtain concurrence from Federal OSHA prior to issuing any such variances. In addition, the State-Plan States may not grant variances to any other employers and must recognize all 1904 variances granted by Federal OSHA. These steps are necessary to ensure that the injury and illness data requirements are consistent from State to State...
Accordingly, the Part 1904 rules impose identical requirements where they are needed to create consistent injury and illness statistics for the nation and allows the States to impose supplemental or more stringent requirements where doing so will not interfere with the maintenance of comprehensive and uniform national statistics on workplace fatalities, injuries and illnesses.
Section 1904.38 Variances from the recordkeeping rule.
Section 1904.38 of the final rule explains the procedures employers must follow in those rare instances where they request that OSHA grant them a variance or exception to the recordkeeping rules in Part 1904. The rule contains these procedures to allow an employer who wishes to maintain records in a manner that is different from the approach required by the rules in Part 1904 to petition the Assistant Secretary. Section 1904.8 allows the employer to apply to the Assistant Secretary for OSHA and request a Part 1904 variance if he or she can show that the alternative recordkeeping system: (1) Collects the same information as this Part requires; (2) Meets the purposes of the Act; and (3) Does not interfere with the administration of the Act.
The variance petition must include several items, namely the employer's name and address; a list of the State(s) where the variance would be used; the addresses of the business establishments involved; a description of why the employer is seeking a variance; a description of the different recordkeeping procedures the employer is proposing to use; a description of how the employer's proposed procedures will collect the same information as would be collected by the Part 1904 requirements and achieve the purpose of the Act; and a statement that the employer has informed its employees of the petition by giving them or their authorized representative a copy of the petition and by posting a statement summarizing the petition in the same way notices are posted under paragraph 1903.2(a).
The final rule describes how the Assistant Secretary will handle the variance petition by taking the following steps:
The final rule makes clear that the employer may not use the proposed recordkeeping procedures while the Assistant Secretary is processing the variance petition and must wait until the variance is approved. The rule also provides that, if the Assistant Secretary denies the petition, the employer will receive notice of the denial within a reasonable time and establishes that a variance petition has no effect on the citation and penalty for a citation that has been previously issued by OSHA and that the Assistant Secretary may elect not to review a variance petition if it includes an element which has been cited and the citation is still under review by a court, an Administrative Law Judge (ALJ), or the OSH Review Commission.
The final rule also states that the Assistant Secretary may revoke a variance at a later date if the Assistant Secretary has good cause to do so, and that the procedures for revoking a variance will follow the same process as OSHA uses for reviewing variance petitions. Except in cases of willfulness or where necessary for public safety, the Assistant Secretary will: Notify the employer in writing of the facts or conduct that may warrant revocation of a variance and provide the employer, employees, and authorized employee representatives with an opportunity to participate in the revocation procedures...
The final rule adds several provisions to those of the former rule. They include (1) the identification of petitioning employers' pending citations in State plan states, (2) the discretion given to OSHA not to consider a petition if a citation on the same subject matter is pending, (3) the clarification that OSHA may provide additional notice via the Federal Register and opportunity for comment, (4) the clarification that variances have only prospective effect, (5) the opportunity of employees and their representatives to participate in revocation procedures, and (6) the voiding of all previous variances and exceptions...
OSHA has decided, to continue to include a specific recordkeeping variance section in the final rule, and not to require employers who wish a recordkeeping variance or exception to follow the more rigorous procedures in 29 CFR Part 1905. The procedures in Part 1905, which were developed for rules issued under sections 6 and 16 of the OSH Act, may not be appropriate for rules issued under section 8 of the Act, such as this recordkeeping rule.
The final rule thus retains a section on variance procedures for the recordkeeping rule. OSHA believes that few variances or exceptions will be granted under the variance procedures of the final rule because other provisions of the final rule already reflect many of the alternative recordkeeping procedures that employers have asked to use over the years, such as electronic storage and transmission of data, centralized record maintenance, and the use of alternative recordkeeping forms. Because these changes have been made to other sections of the final rule, there should be little demand for variances or exceptions...
Paragraph (i) of the final rule supports paragraph (c)(7) from this same section because it provides a mechanism for giving OSHA notice of a citation pending before a state agency. Paragraph (i) also clarifies that variances only apply to future events, not to past practices. Paragraph (j) of section 1904.38 of the final rule nullifies all prior variances and exceptions. OSHA believes that it is important to begin with a "clean slate" when the final recordkeeping rule goes into effect. Employers with existing variances can repetition the agency if the final rule does not address their needs. Another addition to the final rule makes explicit that OSHA can provide additional public notice via the Federal Register and may offer additional opportunity for public comment. A final addition recognizes and makes clear that employees can participate in variance revocation proceedings.
The employer must report the fatality within eight hours of the employee's death in cases where the death occurs within 30 days of the incident. The employer need not report a death occurring more than 30 days after a work-related incident.
A "construction work zone" for purposes of §1904.39(b)(3) is an area of a street or highway where construction activities are taking place, and is typically marked by signs, channeling devices, barriers, pavement markings and/or work vehicles. The work zone extend from the first warning sign or rotating/strobe lights on a vehicle to the "END ROAD WORK" sign or the last temporary traffic control device.
Section 1904.40 Providing records to government representatives
Under the final rule, employers must provide a complete copy of any records required by Part 1904 to an authorized government representative, including the Form 300 (Log), the Form 300A (Summary), the confidential listing of privacy concern cases along with the names of the injured or ill privacy case workers, and the Form 301 (Incident Report), when the representative asks for the records during a workplace safety and health inspection...
The final regulatory text of paragraph (a) of section 1904.40 requires an employer to provide an authorized government representative with records kept under Part 1904 within four business hours. As stated in paragraph 1904.40(b)(1), the authorized government representatives who have a right to obtain the Part 1904 records are a representative of the Secretary of Labor conducting an inspection or investigation under the Act, a representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health (NIOSH)) conducting an investigation under Section 20(b) of the Act, or a representative of a State agency responsible for administering a State plan approved under section 18 of the Act. The government's right to ask for such records is limited by the jurisdiction of that Agency. For example, a representative of an OSHA approved State plan could only ask for the records when visiting an establishment within that state.
The final rule allows the employer to take into account difficulties that may be encountered if the records are kept at a location in a different time zone from the establishment where the government representative has asked for the records. If the employer maintains the records at a location in a different time zone, OSHA will use the business hours of the establishment at which the records are located when calculating the deadline, as permitted by paragraph 1904.40(b)(2)...
...[T]he text of the rule is silent as to the enforcement mechanism OSHA will use in what OSHA hopes will be the rare case in which an employer does not provide a copy of the records on request. OSHA may proceed by applying for a warrant, or by administrative subpoena, or by citation where doing so is consistent with the Fourth Amendment. OSHA notes that employers have a Fourth Amendment right to require a warrant before an OSHA representative may physically enter a business establishment for an inspection.
The totality of circumstances surrounding a warrantless or "subpoena-less" administrative investigation or investigation program determines its reasonableness. For example, in McLaughlin v. A.B. Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a records access citation against an employer who refused an OSHA inspector access to its OSHA Logs and forms on the ground that it had a right to insist on a warrant or subpoena; the Court held that the inspector had such a right because a summary of the information was posted annually on the employee bulletin board and the inspector was lawfully on the premises to investigate a safety complaint. In New York v. Burger, 482 U.S. 691, 702-703 (1987), the Supreme Court noted that agencies may gather information without a warrant, subpoena, or consent if the information would serve a substantial governmental interest, a warrantless (or subpoena-less) inspection is necessary to further the regulatory scheme, and the agency acts pursuant to an inspection program that is limited in time, place, and scope. The Burger court upheld a warrantless inspection of records during an administrative inspection of business premises. See also Kings Island (noting that under Burger a warrantless or subpoena-less inspection of records might be reasonable, but concluding that the facts of the case did not satisfy Burger analysis); Emerson Electric (noting that under California Bankers an agency may gain access to information without a subpoena or warrant but concluding that the facts of that case were not comparable to those reviewed in California Bankers).
Given that some warrantless and subpoena-less searches during an OSHA inspection may be reasonable while others may not, depending on the circumstances of the individual inspection, OSHA has decided not to include a subpoena or warrant enforcement mechanism in the text of the rule. However, OSHA will continue to enforce the rule within the parameters of applicable court decisions...
This section of the final rule does not give unfettered access to the records by the public, but simply allows a government inspector to use the records during the course of a safety and health inspection. As discussed above in the section covering access to the records for employees, former employees, and employee representatives (Section 1904.35), OSHA does not consider the Forms 300 and 301 to be medical records, for the following reasons. First, they do not have to be completed by a physician or other licensed health care professional. Second, they do not contain the detailed diagnostic and treatment information usually found in medical records. Finally, the injuries and illnesses found in the records are usually widely known among other employees at the workplace where the injured or ill worker works; in fact, these co-workers may even have witnessed the accident that gave rise to the injury or illness.
OSHA does not agree that its inspectors should be required to obtain permission from all injured or ill employees before accessing the full records. Gaining this permission would make it essentially impossible to obtain full access to the records, which is needed to perform a meaningful workplace investigation. For example, an inspector would not be able to obtain the names of employees who were no longer working for the company to perform follow-up interviews about the specifics of their injuries and illnesses. The names of the injured or ill workers are needed to allow the government inspector to interview the injured and ill workers and determine the hazardous circumstances that led to their injury or illness. The government inspector may also need the employee's names to access personnel and medical records if needed (medical records can only be accessed after the inspector obtains a medical access order). Additionally, refusing the inspector access to the names of the injured and ill workers would effectively prohibit any audit of the Part 1904 records by the government, a practice necessary to verify the accuracy of employer recordkeeping in general and to identify problems that employers may be having in keeping records under OSHA's recordkeeping rules...since OSHA inspectors do not allow others to see the medical records they have accessed, the privacy of employees is not compromised by CSHO access to the records.
...Paragraphs 1904.40(a) and (b) of the final rule require records to be made available to a government inspector within 4 business hours of an oral request for the records, using the business hours of the establishment at which the records are located...
OSHA has concluded that 4 hours is a reasonable and workable length of time for employers to respond to governmental requests for records. The 4-hour time period for providing records from a centralized source strikes a balance between the practical limitations inherent in record maintenance and the government official's need to obtain these records and use the information to conduct a workplace inspection...
OSHA believes that it is essential for employers to have systems and procedures that can produce the records within the 4-hour time. However, the Agency realizes that there may be unusual or unique circumstances where the employer cannot comply. For example, if the records are kept by a health care professional and that person is providing emergency care to an injured worker, the employer may need to delay production of the records. In such a situation, the OSHA inspector may allow the employer additional time.
If a government representative requests records of an establishment, but those records are kept at another location, the 4-hour period can be measured in accordance with the normal business hours at the location where the records are being kept...
OSHA has designed the final rule to give each employer considerable flexibility in maintaining records. It permits an employer to centralize its records, to use computer and facsimile technologies, and to hire a third party to keep its records. However, an employer who chooses these options must also ensure that they are sufficiently reliable to comply with this rule. In other words, the flexibility provided to employers for recordkeeping must not impede the Agency's ability to obtain and use the records...
...[I]n this final rule, OSHA requires the employer to provide copies of the records requested to authorized government representatives...
Section 1904.41 Annual OSHA injury and illness survey of ten or more employers
Section 1904.41 of this final rule replaces section 1904.17, "Annual OSHA Injury and Illness Survey of Ten or More Employers," of the former rule issued on February 11, 1997. The final rule does not change the contents or policies of the corresponding section of the former rule in any way...
Thus, section 1904.41 of the final rule merely restates, in a plain language question-and-answer format, the requirements of former rule section 1904.17, with one minor change. The final rule adds paragraph 1904.41(b)(1), which contains no requirements or prohibitions but simply informs the employer that there is no need to send in the Part 1904 injury and illness data until the government asks for it.
Section 1904.42 Requests from the Bureau of Labor Statistics for data
Both OSHA and the BLS collect occupational injury and illness information, each for separate purposes. The BLS collects data from a statistical sample of employers in all industries and across all size classes, using the data to compile the occupational injury and illness statistics for the Nation. The Bureau gives each respondent a pledge of confidentiality (as it does on all BLS surveys), and the establishment-specific injury and illness data are not shared with the public, other government agencies, or OSHA. The BLS's sole purpose is to create statistical data.
OSHA collects data from employers from specific size and industry classes, but collects from each and every employer within those parameters. The establishment- specific data collected by OSHA are used to administer OSHA's various programs and to measure the performance of those programs at individual workplaces...
OSHA and the BLS have worked together for many years to reduce the number of establishments that receive both surveys. These efforts have largely been successful. However, OSHA and BLS use different databases to select employers for their surveys. This makes it difficult to eliminate the overlap completely. We are continuing to work on methods to reduce further the numbers of employers who receive both BLS and OSHA survey requests.
...The rule thus specifies that the BLS has the authority to collect information on occupational fatalities, injuries and illnesses from: (1) employers who are required to keep records at all times; (2) employers who are normally exempt from keeping records; and (3) employers under both Federal and State plan jurisdiction. The information collected in the annual survey enables BLS to generate consistent statistics on occupational death, injury and illness for the entire Nation.
Subpart G - Definitions
The Definitions section of the final rule contains definitions for five terms: "the Act," "establishment," "health care professional," "injury and illness," and "you."
The Occupational Safety and Health Act of 1970 (the "OSH Act") is defined because the term is used in many places in the regulatory text. The final rule's definition is essentially identical to the definition in the proposal. OSHA received no comments on this definition. The definition of "the Act" follows:
The Act means the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S. 651 et seq.), as amended. The definitions contained in section (3) of the Act and related interpretations shall be applicable to such terms when used in this Part 1904.
...In the final rule, OSHA has decided that it is not necessary to define "employee" because the term is defined in section 3 of the Act and is used in this rule in accordance with that definition.
...Because the final rule uses the term "employer" just as it is defined in the Act, no separate definition is included in the final rule.
The final rule defines an establishment as a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
The final rule also addresses whether one business location can include two or more establishments. Normally, one business location has only one establishment. However, under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments for recordkeeping purposes. An employer may divide one location into two or more establishments only when: each of the proposed establishments represents a distinctly separate business; each business is engaged in a different economic activity; no one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the proposed establishments; and separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
The final rule also deals with the opposite situation, and explains when an establishment includes more than one physical location. An employer may combine two or more physical locations into a single establishment only when the employer operates the locations as a single business operation under common management; the locations are all located in close proximity to each other; and the employer keeps one set of business records for the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse serving the plant a block away, and an administrative services building across the street. The final rule also makes it clear that when an employee telecommutes from home, the employee's home is not a business establishment for recordkeeping purposes, and a separate OSHA 300 Log is not required.
The definition of "establishment" is important in OSHA's recordkeeping system for many reasons. First, the establishment is the basic unit for which records are maintained and summarized. The employer must keep a separate injury and illness Log (the OSHA Form 300), and prepare a single summary (Form 300A), for each establishment. Establishmentspecific records are a key component of the recordkeeping system because each separate record represents the injury and illness experience of a given location, and therefore reflects the particular circumstances and hazards that led to the injuries and illnesses at that location. The establishment-specific summary, which totals the establishment's injury and illness experience for the preceding year, is posted for employees at that establishment and may also be collected by the government for statistical or administrative purposes.
Second, the definition of establishment is important because injuries and illnesses are presumed to be work-related if they result from events or exposures occurring in the work environment, which includes the employer's establishment. The presumption that injuries and illnesses occurring in the work environment are by definition work-related may be rebutted under certain circumstances, which are listed in the final rule and discussed in the section of this preamble devoted to section 1904.5, Determination of work-relatedness.
Third, the establishment is the unit that determines whether the partial exemption from recordkeeping requirements permitted by the final rule for establishments of certain sizes or in certain industry sectors applies (see Subpart B of the final rule). Under the final rule's partial exemption, establishments classified in certain Standard Industrial Classification codes (SIC codes) are not required to keep injury and illness records except when asked by the government to do so. Because a given employer may operate establishments that are classified in different SIC codes, some employers may be required to keep OSHA injury and illness records for some establishments but not for others, e.g., if one or more of the employer's establishments falls under the final rule's partial exemption but others do not.
Fourth, the definition of establishment is used to determine which records an employee, former employee, or authorized employee representative may access. According to the final rule, employees may ask for, and must be given, injury and illness records for the establishment they currently work in, or one they have worked in, during their employment...
Subpart G of the final rule defines "establishment" as "a single physical location where business is conducted or where services or industrial operations are performed. For activities such as construction; transportation; communications, electric and gas utility, and sanitary services; and similar operations, the establishment is represented for recordkeeping purposes by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities." This part of the definition of "establishment" provides flexibility for employers whose employees (such as repairmen, meter readers, and construction superintendents) do not work at the same workplace but instead move between many different workplaces, often in the course of a single day.
How the definition of "establishment" must be used by employers for recordkeeping purposes is set forth in the answers to the questions posed in this paragraph of Subpart G:
(1) Can one business location include two or more establishments?
(2) Can an establishment include more than one physical location?
(3) If an employee telecommutes from home, is his or her home considered a separate establishment?
The employer may consider two or more economic activities at a single location to be separate establishments (and thus keep separate OSHA Form 300s and Form 301s for each activity) only when: (1) each such economic activity represents a separate business, (2) no one industry description in the Standard Industrial Classification Manual (1987) applies to the activities carried out at the separate locations; and (3) separate reports are routinely prepared on the number of employees, their wages and salaries, sales or receipts, and other business information. This part of the definition of "establishment" allows for separate establishments when an employer uses a common facility to house two or more separate businesses, but does not allow different departments or divisions of a single business to be considered separate establishments. However, even if the establishment meets the three criteria above, the employer may, if it chooses, consider the physical location to be one establishment.
The definition also permits an employer to combine two or more physical locations into a single establishment for recordkeeping purposes (and thus to keep only one Form 300 and Form 301 for all of the locations) only when (1) the locations are all geographically close to each other, (2) the employer operates the locations as a single business operation under common management, and (3) the employer keeps one set of business records for the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other business information. However, even for locations meeting these three criteria, the employer may, if it chooses, consider the separate physical locations to be separate establishments. This part of the definition allows an employer to consider a single business operation to be a single establishment even when some of his or her business operations are carried out on separate properties, but does not allow for separate businesses to be joined together. For example, an employer operating a manufacturing business would not be allowed to consider a nearby storage facility to be a separate establishment, while an employer who operates two separate retail outlets would be required to consider each to be a separate establishment...
OSHA has reviewed all of the comments on this issue and has responded by deleting any reference to a time-in-operation threshold in the definition of establishment but specifying a one-year threshold in section 1904.30 of the final rule...
...Under the final rule, employers will be required to maintain establishment-specific records for any workplace that is, or is expected to be, in operation for one year or longer. Employers may group injuries and illnesses occurring to workers who are employed at shorter term establishments onto one or more consolidated logs. These logs may cover the entire company; geographic regions such as a county, state or multi-state area; or individual divisions of the company. For example, a construction company with multi-state operations might have separate logs for each state to show the injuries and illnesses of shortterm projects, as well as separate logs for each construction project expected to last for more than one year...
OSHA agrees that the recordkeeping system must recognize the needs of operations of this type and has adopted language in the final rule to provide some flexibility for employers in the construction, transportation, communications, electric and gas utility, and sanitary services industries, as well as other employers with geographically dispersed operations. The final rule specifies, in Subpart G, that employers may consider main or branch offices, terminals, stations, etc. that are either (1) responsible for supervising such activities, or (2) the base from which personnel operate to carry out these activities, as individual establishments for recordkeeping purposes. This addition to the final rule's definition of establishment allows an employer to keep records for geographically dispersed operations using the existing management structure of the company as the recording unit...
...The final rule also recognizes that, in some narrowly defined situations, a business may have sideby- side operations at a single location that are operated as separate businesses because they are engaged in different lines of business. In these situations, the Standard Industrial Classification Manual (OMB 1987) allows a single business location to be classified as two separate establishments, each with its own SIC code. Like all government agencies, OSHA follows the OMB classification method and makes allowances for such circumstances...
...[T]he final rule makes clear in Subpart G, that an employer whose activities meet the final rule's definition may keep separate logs if he or she chooses to do so. Thus the final rule includes a provision that allows an employer to define a single business location as two separate establishments only under specific, narrow conditions. The final rule allows the employer to keep separate records only when the location is shared by completely separate business operations involved in different business activities (Standard Industrial Classifications) for which separate business records are available. By providing specific, narrow criteria, the final rule reduces ambiguity and confusion about what is required and sets out the conditions that must be met in order for employers to deviate from the one place-one establishment concept.
OSHA expects that the overwhelming majority of workplaces will continue to be classified as one establishment for recordkeeping purposes, and will keep just one Log. However, allowing some flexibility for the rare cases that meet the specified criteria is appropriate. The employer is responsible for determining whether a given workplace meets the criteria; OSHA will consider an employer meeting these criteria to be in compliance with the final rule if he or she keeps one set of records per facility. This policy allows an employer to keep one set of records for a given location and avoid the additional burden or inconvenience associated with keeping separate records...
OSHA agrees that there are situations where a single establishment that has a satellite operation in close physical proximity to the primary operation may together constitute a single business operation and thus be a single establishment. For example, a business may have a storage facility in a nearby building that is simply an adjunct to the business operation and is not a separate business location.
OSHA believes that there are situations where establishments in separate physical locations constitute a single establishment. However, under the final rule, employers will only be allowed to combine separated physical locations into a single establishment when they operate the combined locations as a single business operation under common management and keep a single set of business records for the combined locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other types of business information.
How OSHA defines an establishment also has implications for the way company parking lots and recreation facilities, such as company-provided gymnasiums, ball fields, and the like are treated for recordkeeping purposes... The final rule includes these areas in the definition of establishment but does not require employers to record cases occurring to employees engaged in certain activities at these locations. For example, injuries and illnesses occurring at the establishment while the employee is voluntarily engaged in recreation activities or resulting from a motor vehicle accident while the employee is commuting to or from work would not have to be recorded (see section 1904.5)...
Company Parking Lots and Access Roads
...OSHA agrees... company parking lots can be highly hazardous and that employers have considerable control over conditions in such lots. In addition, OSHA believes that having data on the kinds of injuries and illnesses occurring on company parking lots and access roads will permit employers to address the causes of these injuries and illnesses and thus to provide their employees with better protection. Accordingly, for recordkeeping purposes, the final rule includes company parking lots and access roads in the definition of establishment. However, the final rule recognizes that some injuries and illnesses occurring on company parking lots and access roads are not work-related and delineates those that are work-related from those that are not work-related on the basis of the activity the employee was performing at the time the injury or illness occurred. For example, when an employee is injured in a motor vehicle accident that occurs during that employee's commute to or from work, the injury is not considered work-related. Thus, the final rule allows the employer to exclude from the Log injuries and illnesses occurring on company parking lots and access roads while employees are commuting to or from work or running personal errands in their motor vehicles (see section 1904.5). However, other injuries and illnesses occurring in parking lots and on access roads (such as accidents at loading docks, while removing snow, falls on ice, assaults, etc.) are considered work-related and must be recorded on the establishment's Log if they meet the other recording criteria of the final rule (e.g., if they involve medical treatment, lost time, etc.).
OSHA concludes that the activity-based approach taken in the final rule will be simpler for employers to use than the former rule's location-based approach and will result in the collection of better data. First, the activity-based approach eliminates the need for employers to determine where a parking lot begins and ends, i.e., what specific areas constitute the parking lot, which can be difficult in the case of combined, interspersed, or poorly defined parking areas. Second, it ensures the recording of those injuries and illnesses that are work-related but simply happen to occur in these areas. If parking lots and access roads are totally excluded from the definition of establishment, employers would not record any injury or illness occurring in such locations. For example, employers could fail to record an injury occurring to an employee performing work, such as building an attendant's booth or demarcating parking spaces, from the Log.
Recreation facilities... In the final rule, OSHA has decided to include recreational areas in the definition of establishment but to include voluntary fitness and recreational activities, and other wellness activities, on the list of excepted activities employers may use to rebut the presumption of work-relatedness in paragraph 1904.5(b)(2). OSHA finds that this approach is simpler and will provide better injury and illness data because recreational facilities are often multi-use areas that are sometimes used as work zones and sometimes as recreational areas...
This approach is also consistent with OSHA's overall approach in the final rule of using specific activitybased exemptions to allow the employer to rebut the presumption of work relationship rather than providing exemptions by modifying the definition of establishment. OSHA also does not believe that this approach will provide an incentive for employers to eliminate recreational and fitness opportunities for their employees. Both approaches exempt the same injuries from recording, but the final rule's approach provides employers with a more straightforward mechanism for rebutting the presumption of work relationship.
OSHA believes that injuries and illnesses occurring to employees who are present in recreational areas as part of their assigned work duties should be recorded on the Log; the final rule thus only permits employers to exclude recreational activities that are being performed by the employee voluntarily from their Logs. For example, an injury to an exercise instructor hired by the company to conduct classes and demonstrate exercises would be considered work related, as would an injury or illness sustained by an employee who is required to exercise to maintain specific fitness levels, such as a security guard.
Private homes as an establishment... In the final rule, OSHA has not excluded private homes from the definition of establishment because many private homes contain home offices or other home-based worksites, and injuries and illnesses occurring to employees during work activities performed there on behalf of their employer are recordable if the employer is required to keep a Log. However, the final rule makes clear that, in the case of an employee who telecommutes from his or her home, the home is not considered an establishment for OSHA recordkeeping purposes and the employer is not required to keep a separate Log for the home office. For these workers, the worker's establishment is the office to which they report, receive direction or supervision, collect pay, and otherwise stay in contact with their employer, and it is at this establishment that the Log is kept. For workers who are simply working at home instead of at the company's office, i.e., for employees who are telecommuting, OSHA does not consider the worker's home to be an establishment for recordkeeping purposes, and the definition of establishment makes this fact clear. OSHA has issued a compliance directive clarifying that OSHA does not and will not inspect home offices in the employee's home and would inspect a homebased worksite other than a home office only if the Agency received a complaint or referral. A fuller discussion concerning the determination of the workrelatedness of injuries and illnesses that occur when employees are working in their homes can be found in the discussion of Section 1904.5 Determination of work-relatedness.
Miscellaneous issues... [T]he final rule does contain an exception from recordability of cases where the employee, for example, chokes on his or her food, is burned by spilling hot coffee, etc. (see paragraph 1904.5(b))...
OSHA will continue to allow employers to keep their records centrally and on computer equipment, and nothing in the final rule would preclude such electronic centralization. OSHA believes that the definition of establishment in the final rule will have no impact on the ability of the employer to keep records centrally; however, the final rule does continue to require employers to summarize and post the records for each establishment at the end of the year...
Health Care Professional
The final rule defines health care professional (HCP) as "a physician or other state licensed health care professional whose legally permitted scope of practice (i.e., license, registration or certification) allows the professional independently to provide or be delegated the responsibility to provide some or all of the health care services described by this regulation."...
...Although the rule does not specify what medical specialty or training is necessary to provide care for injured or ill employees, the rule's use of the term health care professional is intended to ensure that those professionals providing treatment and making determinations about the recordability of certain complex cases are operating within the scope of their license, as defined by the appropriate state licensing agency...
...OSHA does not intend the use of the term "health care professional" in this rule to modify or supersede any requirement of any other OSHA regulation or standard...
...The definition in the final rule ensures that, although decisions about the recordability of a particular case may be made by a wide range of health care professionals, the professionals making those decisions must be operating within the scope of their license or certification when they make such decisions.
Injury or Illness
The final rule's definition of injury or illness is based on the definitions of injury and illness used under the former recordkeeping regulation, except that it combines both definitions into a single term "injury or illness." Under the final rule, an injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or systemic poisoning. The definition also includes a note to inform employers that some injuries and illnesses are recordable and others are not, and that injuries and illnesses are recordable only if they are new, workrelated cases that meet one or more of the final rule's recording criteria...
...OSHA has decided to continue to include psychological conditions in the final rule's definition of injury and illness because many such conditions are caused, contributed to, or significantly aggravated by events or exposures in the work environment, and the Agency would be remiss if it did not collect injury and illness information about conditions of these types that meet one or more of the final rule's recording criteria.
Although injury and illness are broadly defined, they capture only those changes that reflect an adverse change in the employee's condition that is of some significance, i.e., that reach the level of an abnormal condition or disorder. For example, a mere change in mood or experiencing normal end-of-theday tiredness would not be considered an abnormal condition or disorder. Similarly, a cut or obvious wound, breathing problems, skin rashes, blood tests with abnormal results, and the like are clearly abnormal conditions and disorders. Pain and other symptoms that are wholly subjective are also considered an abnormal condition or disorder. There is no need for the abnormal condition to include objective signs to be considered an injury or illness. However, it is important for employers to remember that identifying a workplace incident as an occupational injury or illness is only the first step in the determination an employer makes about the recordability of a given case.
OSHA finds that this definition provides an appropriate starting point for decision-making about recordability, and that the requirements for determining which cases are work-related and which are not (section 1904.5), for determining which work-related cases reflect new injuries or illnesses rather than recurrences (section 1904.6), and for determining which new, work-related cases meet one or more of the general recording criteria or the additional criteria (sections 1904.7 to 1904.12) together constitute a system that ensures that those cases that should be recorded are captured and that minor injuries and illnesses are excluded...OSHA has added language to the definition of injury and illness to make it clear that many injuries and illnesses are not recordable, either because they are not work-related or because they do not meet any of the final rule's recording criteria...
After reviewing this issue thoroughly, OSHA finds that a system that initially defines injury and illness broadly and then applies a series of screening mechanisms to narrow the number of recordable incidents to those meeting OSHA and statutory criteria has several advantages. First, by being inclusive, this system avoids the problem associated with any "narrow gate" approach: that some cases that should be evaluated are lost even before the evaluation process begins. Second, this approach is consistent with the broad definitions of these terms that OSHA has used for more than 20 years, which means that the approach is already familiar to employers and their recordkeepers. Third, adding terminology like "significant" and "reasonable probability that ill-health will result," as commenters suggested, would unnecessarily complicate the first step in the evaluation process.
Accordingly, the definition of injury and illness in the final rule differs from the former definition only in minor respects. The definition is based on the former rule's definitions, simply combining the separate definitions of injury and illness into a single category, to be consistent with the elimination of separate recording thresholds for occupational injuries and occupational illnesses. As discussed above, OSHA has elected to continue to use a broad definition of illness or injury. The definition in the final rule also makes it clear that each injury and illness must be evaluated for work-relatedness, to decide if it is a new case, and to determine if it is recordable before a covered employer must enter the case in the OSHA recordkeeping system.
The last definition in the final rule, of the pronoun "you," has been added because the final rule uses the "you" form of the question-and-answer plain-language format recommended in Federal plain-language guidance. "You," as used in this rule, means the employer, as that term is defined in the Act. This definition makes it clear that employers are responsible for implementing the requirements of this final rule, as mandated by the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)
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