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Date: 02/02/1996
Federal Register #: 61:4029-4067
Standard Number: 1904 ;1952
Type: Proposed
Agency: OSHA
Subject: Occupational Injury and Illness Recording
and Reporting Requirements
CFR Title: 29
---------------------------------------------------------
DEPARTMENT
OF LABOR
Occupational
Safety and Health Administration
29
CFR Parts 1904 and 1952
[Docket
No. R-02]
Occupational
Injury and Illness Recording and Reporting Requirements
AGENCY:
Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION:
Notice of Proposed rule.
---------------------------------------------------------
SUMMARY:
The Occupational Safety and Health Administration
(OSHA) proposes to revise Title 29 of the Code of
Federal Regulations Part 1904, Recording and Reporting
Occupational Injuries and Illnesses, the supplemental
recordkeeping instructions, and replace the recordkeeping
forms. This revision is expected to result in: a greatly
simplified injury and illness recordkeeping system
for employers, improved information concerning occupational
injuries and illnesses, increased utility of the injury
and illness records at the establishment/site level,
increased use of modern technology, including computers
and telecommunications equipment, and improved employee
awareness and involvement.
This
rulemaking is part of the overall effort to simplify
and revise Part 1904. One section, Reporting of Fatality
or Multiple Hospitalization Incidents, was revised
in a separate rulemaking. The text of the revised
Sec. 1904.8, which became effective May 2, 1994, is
included in this proposal as section 1904.12 due to
reorganization of the various sections of Part 1904.
However, Sec. 1904.12 in this proposal includes three
additional changes which are intended to further clarify
the earlier revision.
Also
included in this rulemaking is the revision of 29
CFR 1952.4. Sec. 1952.4 establishes the recordkeeping
and reporting requirements for States that have their
own occupational safety and health programs and have
been approved by OSHA to enforce safety and health
regulations in their State. The revision of this section
is a clarification of the requirements based on the
existing interpretation of the current Sec. 1952.4.
DATES:
1. Written comments on the proposed regulation must
be postmarked on or before May 2, 1996.
2.
A public meeting will be held in Washington, D.C.
in the U.S. Department of Labor auditorium at 200
Constitution Avenue NW beginning at 8:30 am on March
26, 1996 and extending through March 28th, if necessary.
ADDRESSES:
Comments are to be submitted in writing in quadruplicate,
or 1 original (hard copy) and 1 disk (5 1/4"
or 3 1/2") in WP 5.0, 5.1, 5.2, 6.0 or ASCII.
Note: Any information not contained on disk; e.g.,
studies, articles, etc. must be submitted in quadruplicate.
All comments shall be submitted to: Docket Officer,
Docket No. R-02, Occupational Safety and Health Administration,
Room N-2625, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210, telephone (202)
219-7894. Comments of 10 pages or less may be transmitted
by facsimile to (202) 219-5046 provided the original
and 4 copies of the comment are sent to the Docket
Officer thereafter. Notice of intention to appear
at the meeting is to be sent to Mr. Tom Hall, OSHA
Division of Consumer Affairs, Docket No. R-02, Room
N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210.
FOR
FURTHER INFORMATION CONTACT: Ms. Anne Cyr, OSHA, U.S.
Department of Labor, Office of Information and Consumer
Affairs, Room N-3647, 200 Constitution Ave., NW.,
Washington DC 20210. Telephone (202) 219-8148.
SUPPLEMENTARY
INFORMATION
I.
Background
Administrative
History
Following
the passage of the Occupational Safety and Health
(OSH) Act of 1970, the Occupational Safety and Health
Administration (OSHA) was formed to promulgate and
enforce safety and health regulations and standards.
In 1971, OSHA published the occupational injury and
illness recording and reporting regulation, 29 CFR
Part 1904. During that same year, the Secretary of
Labor delegated responsibility for the occupational
injury and illness statistical program to the Bureau
of Labor Statistics (BLS).
Since
1971, OSHA and BLS have operated the injury and illness
recordkeeping system as a cooperative effort. OSHA
promulgated and enforced the recordkeeping regulations
while BLS prepared survey forms, published recordkeeping
forms and supplemental instructions, provided outreach,
and conducted the Annual Survey Of Occupational Injuries
And Illnesses. In 1990 the agencies decided to reorganize
these duties, and the Department of Labor announced
that the recordkeeping function was being transferred
to OSHA. Pursuant to a memorandum of understanding
(MOU), BLS retained responsibility for conducting
the Annual Survey Of Occupational Injuries And Illnesses,
while responsibility for administering the recordkeeping
system was transferred to OSHA (ex. 6). OSHA's responsibility
includes developing, publishing, and providing outreach
for recordkeeping regulations and instructions. In
1991, OSHA created the Office of Statistics to assume
these responsibilities and to meet the data needs
of the agency.
Purpose
of the Records
The
injury and illness records are intended to have multiple
purposes. One purpose is to provide information for
employers and employees, raising their awareness of
the kinds of injuries and illnesses occurring in the
workplace and their related hazards. Increased employer
awareness should result in the identification and
voluntary correction of hazardous workplace conditions.
In this role, the records serve as a "management
tool" for the administration of company safety
and health programs. Likewise, employees who are provided
information on injuries and illnesses will be more
aware of hazards in the work environment, and therefore
more likely to follow safe work practices, and report
workplace hazards. This would generally raise the
overall level of safety and health in the workplace.
Another
purpose for keeping these records is to provide OSHA
compliance staff with information which can facilitate
safety and health inspections. During the initial
stages of an inspection, the inspector reviews the
injury and illness data for the establishment and
subsequently focuses his or her inspection efforts
on the safety and health hazards revealed by the injury
and illness records.
Another
use of the injury and illness records is to produce
statistical data on the incidence of workplace injuries
and illnesses, thereby measuring the magnitude of
the injury and illness problem across the country.
BLS and participating States make the survey data
available at an aggregate level by industry group
for research purposes and for public information.
OSHA also will use employer specific information to
help focus its intervention efforts on the most dangerous
worksites and the worst safety and health hazards.
Regulatory/Interpretation
History
When
Part 1904 was first implemented, industry safety experts
were concerned that the regulations and the instructions
on the forms did not provide adequate guidance for
employers. They requested that the Department of Labor
provide additional instructions on employer recordkeeping
obligations to clarify several recordkeeping issues.
The Bureau of Labor Statistics responded in 1972 by
publishing supplemental instructions to the recordkeeping
forms, BLS Report 412, What Every Employer Needs To
Know About OSHA Recordkeeping (ex. 1). These supplemental
instructions were designed to meet the needs of employers
by providing detailed information on when and how
to record injury and illness cases on the recordkeeping
forms.
A
major concept established in the supplemental instructions
was the definition of work relationship. Although
the Act and regulations required "occupational"
or "work-related" injuries and illnesses
to be recorded, neither provided a detailed definition
of the terms. The 412 booklet defined work relationship
as follows: 1) cases that occurred at the employer's
establishment (on premises) were considered work-related;
and 2) cases that occurred off the employer's premises
were considered work-related if the employee was engaged
in a work activity or was present as a condition of
employment.
The
BLS 412 booklet was updated in 1973 and 1975. In 1978,
the booklet was again updated to reflect changes in
the regulations exempting small employers from the
recordkeeping requirements, and to allow employers
to computerize their records. The updated versions
of the instructions included lists of first aid and
medical treatments, flow charts to describe the recordkeeping
decision-making process, and answers to many of the
questions most frequently asked by employers.
In
response to requests from labor and industry, and
after publication in the Federal Register and a formal
comment period, the BLS 412 report series was replaced
in April of 1986 by the Recordkeeping Guidelines For
Occupational Injuries And Illnesses (ex. 2). The revised
version of the supplemental instructions contained
an expanded question and answer format similar to
the BLS 412 report, but provided additional information
on the legal basis of the requirements for recordkeeping
under Part 1904. The Guidelines provided clearer definitions
of the types of cases to be recorded, discussed employer
recordkeeping obligations in greater detail, introduced
exceptions to the on-premises presumption of work
relationship for instances where the application of
the general rule was considered inappropriate or overly
burdensome, updated the medical treatment/first aid
lists, and addressed new recordkeeping issues. A short
version of the Guidelines, A Brief Guide to Recordkeeping
Requirements for Occupational Injuries and Illnesses
(ex. 7), was also produced.
While
the 1986 guidelines clarified the existing requirements,
concerns still persisted about the quality and utility
of the injury and illness data. Some employers believed
that the guidelines were too long and that some of
the recordkeeping concepts were too complex and difficult
to understand.
These
continued concerns about the injury and illness records
and the related statistics led to the 1987 Keystone
National Policy Dialogue on Work-related Illness and
Injury Recordkeeping (described in the Reports Section
below). The Keystone dialogue group identified many
problems with the recordkeeping system and provided
numerous suggestions for improving the recordkeeping
definitions.
Under
a Memorandum of Understanding (MOU) dated July 11,
1990 (ex. 6), the responsibility for administering
the national injury and illness recordkeeping system
was transferred from the Bureau of Labor Statistics
to OSHA. As a result, OSHA developed and is now proposing
this revision of the regulations, forms, and supplemental
instructions.
Compliance
Activities
In
1981 OSHA changed its use of employers' injury and
illness records in its programmed inspection activity.
At the beginning of a planned programmed inspection,
the compliance safety and health officer would do
a "records-only check" to determine the
lost workday injury incidence rate for the establishment.
If the establishment had a rate below the national
average, the compliance officer would end the inspection.
Beginning
in 1986, OSHA discovered numerous instances of significant
underreporting of injuries and illnesses. The Agency
began issuing large penalties for recordkeeping violations.
These highly publicized recordkeeping cases resulted
in an even greater awareness of, and sensitivity to,
the injury and illness recordkeeping requirements
among the safety and health community. In 1989, OSHA
discontinued its "records-only check" policy
of terminating inspections because of concerns that
this policy might have been an incentive to underrecord
injuries and illnesses.
Other
Criticisms
OSHA
enforcement policies of the 1980s led to increased
awareness of recordkeeping requirements which resulted
in renewed criticisms of the existing recordkeeping
system. One persistent objection has been that the
current injury and illness recordkeeping guidelines
are too lengthy and complex. Another objection is
that the current definition of work relationship captures
some cases which employers believe should not be considered
work-related. Examples include employees injured while
participating in voluntary wellness programs, cases
related to the consumption of food and drink, and
cases involving workers performing personal tasks
at the workplace during non-work hours.
Reports
Since
the middle 1980s, several studies have evaluated the
utility of the current OSHA injury and illness recordkeeping
system. The National Research Council (NRC), the Keystone
Center, and the General Accounting Office (GAO) each
published reports which evaluated the recordkeeping
system and generated proposals for improvement.
NRC
Report: In 1984, because of concern over the possible
underreporting of occupational injuries and illnesses
and other issues related to the accuracy of the national
data collected by the Bureau of Labor Statistics (BLS),
Congress appropriated funds for BLS to conduct a quality
assurance study of its Annual Survey on Occupational
Injuries and Illnesses. BLS requested the National
Research Council to convene an expert panel to address
the issue of the validity of employer records and
the BLS annual survey, problems related to determining
and reporting occupational diseases, and other issues
related to the collection and use of data on health
and safety in the workplace.
In
1987, the National Research Council issued a report,
Counting Injuries and Illnesses in the Workplace:
Proposals for a Better System (ex. 4), which contains
the panel's recommendations. Twenty-four specific
recommendations were made (see Ch.8 of ex. 4), which
generally were intended to accomplish the following:
(1) modify the BLS Annual Survey to provide increased
information about the injuries and illnesses recorded;
(2) discontinue the supplementary data system and
replace it with a grant program for States and individual
researchers and include criteria for the detail and
quality of data collected; (3) conduct an ongoing
quality assurance program to identify underreporting
on the BLS Annual Survey by comparing the information
on employers' logs with independent sources; (4) implement
occupational disease surveillance, including collection
of exposure data; (5) improve the collection of national
occupational fatality data; (6) implement an administrative
data system which would allow OSHA to be able to obtain
individual establishment data to conduct an "effective
program for the prevention of workplace injuries and
illnesses * * *" (p.10); and (7) implement a
thorough evaluation of recordkeeping practices in
individual establishments, using additional resources
requested from Congress for that purpose so as to
avoid reducing the number of OSHA inspections of workplace
hazards.
Keystone:
In 1987, The Keystone Center, an independent non-profit
organization that facilitates national policy consensus-building
dialogues, convened 46 representatives from labor
unions, corporations, health professions, government
agencies, Congressional staff and academia for a year-long
dialogue to discuss occupational injury and illness
recordkeeping.
In
1989, Keystone issued its final report, Keystone National
Policy Dialogue on Work-related Illness and Injury
Recordkeeping, 1989 (ex.5). The report focused on
four major topics: (1) recordkeeping criteria; (2)
OSHA enforcement procedures; (3) injury and illness
data systems; and (4) occupational illnesses. The
report detailed issues within each topic and made
specific recommendations. By topic and in summary,
the Keystone report recommended: (1) revision of various
aspects of the recording criteria; (2) use of injury
and illness data by OSHA for targeting enforcement
and revision of the guidelines to make them easily
and uniformly understood; (3) development of a national
system for the collection and dissemination of occupational
injury and illness information; and (4) broadening
the type of information collected concerning occupational
illness and making the information available to employees
and government agencies for appropriate purposes such
as research and study.
In
1995, Keystone reassembled a group of business, labor,
and government representatives to discuss draft proposed
changes to the recordkeeping system. OSHA shared its
draft proposed revision with the participants. The
draft was also reprinted in several national safety
and health publications. OSHA received feedback on
the draft. This document reflects many of the issues
and concerns raised. Written comments generated by
the on-going dialogue have been entered in the docket
(ex. 12).
GAO:
An August 1990 report by the United States General
Accounting Office, Options for Improving Safety and
Health in the Workplace (ex. 3), discussed the importance
of the employer injury and illness records, including:
(1) for many entities, the general descriptive value
to better understand the nature and extent of occupational
safety and health problems; (2) identification by
employers and employees of safety and health problems
in the workplace which will enable them to correct
the problems; (3) use by OSHA to conduct research,
evaluate programs, allocate resources, and set and
enforce standards. The report focused on the use of
the records in OSHA enforcement, particularly in targeting
industries and worksites for inspections and determining
the scope of inspections.
The
GAO report found "possibly significant injury
and illness underrecording and subsequent underreporting"
(p.3). Reasons for inaccurate recordkeeping include:
(1) intentional underrecording in response to OSHA
inspection policies or employer safety competitions;
(2) unintentional underrecording because of a lack
of understanding of the recording and reporting system;
and (3) inaccurate recordkeeping because of the lack
of priority placed on recordkeeping by employers which
results in lack of appropriate supervision of recordkeepers.
The GAO noted that OSHA's revised enforcement procedures,
which included increasing the size of the fines for
recordkeeping violations and modifying its records-review
procedures, should help improve the accuracy of recordkeeping.
The GAO recommended that the Department of Labor conduct
studies to assess the accuracy of the records using
independent data sources, evaluate how well employers
understand the revised guidelines [revisions could
be tested pre-publication], and utilize a recordkeeping
audit program in selected enforcement activities.
Advisory
Committee on Construction Safety and Health (ACCSH):
OSHA provided the Advisory Committee on Construction
Safety and Health (ACCSH) with a written briefing
on the draft proposal to revise 29 CFR Part 1904 and
made an oral presentation to the Committee on October
13, 1994. During its meeting on December 9, 1994,
the Committee presented its recommendations to Assistant
Secretary Joseph Dear. The Committee recommended that
OSHA "immediately publish the NPRM on recordkeeping
for public comment." The Committee reiterated
its recommendation in its May, 1995 meeting. In addition,
the ACCSH presented OSHA with specific recommendations
on particular provisions of the revision which are
of significance to the construction industry. OSHA
has given the ACCSH recommendations careful consideration
and modified the proposal in several areas.
The
ACCSH recommendations, OSHA's written briefing, and
the relevant portions of the transcripts of the October
and December 1994 ACCSH meetings, are part of the
public record (ex. 10).
OSHA
would like to have the benefit of public comment on
the ACCSH recommendations, as well as the specific
issues for comment and the provisions of the proposed
rule.
Outline
The
following is an outline of the remainder of this preamble.
The regulatory text and appendices follow the preamble.
---------------------------------------------------------
II.
Summary and Explanation
1.
Reorganize sections
2.
Definitions (Proposed Sec. 1904.3)
lost workday
employee
establishment
first aid
health care provider
medical treatment
responsible company official
restricted work activity
site controlling employer
subcontractor employee
work environment
work related
3.
Recording criteria -- (Proposed Sec. 1904.4)
4.
New case -- (Proposed Sec. 1904.4)
5.
7 days to complete -- (Proposed Sec. 1904.4)
6.
Computerize/centralize Log -- (Proposed Sec. 1904.4)
7.
Computerize/centralize Incident Records -- (Proposed
Sec. 1904.5)
8.
Year-end summary -- (Proposed Sec. 1904.6)
9.
Centralize records -- (Proposed Sec. 1904.7)
10.
Retention -- (Proposed Sec. 1904.9)
11.
Access -- (Proposed Sec. 1904.11)
12.
Fatality/multiple hospitalization reporting -- (Proposed
Sec. 1904.12)
13.
Reports -- (Proposed Sec. 1904.13)
14.
Exceptions/variance -- (Proposed Sec. 1904.15)
15.
Subcontractor records -- (Proposed Sec. 1904.17)
16.
Mandatory Appendix B
Blood lead
Cadmium
Hearing loss
Skin disorders
Asthma
Asbestos
Bloodborne
Tuberculosis
All other
III.
Specific Issues for Comment
Issue
1 -- Exemptions -- (Proposed Sec. 1904.2)
Issue
2 -- Work relationship/severity -- (Mandatory Appendix
A)
Issue
3 -- First aid/medical treatment -- (Proposed Sec.
1904.3)
Issue
4 -- Restricted work activity -- (Proposed Sec. 1904.3)
Issue
5 -- Musculoskeletal disorders -- (Mandatory Appendix
B)
Issue
6 -- Reluctance to record
Issue
7 -- Employee involvement
Issue
8 -- Access/privacy -- (Proposed Sec. 1904.11)
Issue
9 -- Software
IV.
Forms
OSHA
300
OSHA
301
V.
Legal Authority
VI.
State Plans
VII.
Regulatory Impact Assessment
VIII.
Regulatory Flexibility Certification
IX.
Environmental Impact Assessment
X.
Federalism
XI.
Public Participation
XII.
Paperwork Reduction Act of 1995
XIII.
List of Subjects
XIV.
Authority
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II.
Summary and Explanation of the Proposed Rule, Supplemental
Instructions
The
changes to the recordkeeping system are being proposed
as regulatory changes in Part 1904. This proposed
rule would make 18 significant changes in the requirements
of Part 1904:
1.
Reorganize the sections within the rule to place the
purpose, coverage and definitions for the rule at
the beginning, in keeping with the commonly accepted
regulatory format. The change would also improve the
logical placement of the various sections, provide
more meaningful titles for the sections, and combine
sections where appropriate. The following table summarizes
the proposed reorganization of the rule:
Redesignation
Table
New
section Old section
--------------------------------------------------------------------------------
1904.1 Purpose
1904.1 Purpose and scope
1904.2 Coverage and exemptions
1904.15 Small employers and
1904.16
Establishments classified in Standard Industrial Classification
codes (SIC) 52-89, (except 52-54, 70, 75, 76, 79,
and 80)
1904.3 Definitions
1904.12 Definitions
1904.4 OSHA Injury and Illness Log and Summary (OSHA
Form 300 or equivalent)
1904.2 Log and summary of occupational injuries and
illnesses
1904.5 OSHA Injury and Illness Incident Record (OSHA
Form 301 or equivalent)
1904.4 Supplementary record
1904.6 Preparation, certification and posting of the
year-end summary
1904.5 Annual summary
1904.7 Location of records
1904.14 Employees not in fixed establishments
1904.8 Period covered
1904.3 Period covered
1904.9 Retention and updating of occupational injury
and illness records
1904.6 Retention of records
1904.10 Change of ownership
1904.11 Change of ownership
1904.11 Access to records
1904.7 Access to records
1904.12 Reporting of fatality or multiple hospitalization
incidents
1904.8 Reporting of fatality or multiple hospitalization
incidents
1904.13 Reports by Employers
1904.20 Description of statistical program,
1904.21
Duties of employers and
1904.22
Effect of State plans
1904.14 Recordkeeping under approved State plans
1904.10 Recordkeeping under approved State plans
1904.15 Petitions for recordkeeping exceptions
1904.13 Petitions for recordkeeping exceptions
1904.16 Falsification of, or failure to keep records
or reports
1904.9 Falsification, or failure to keep records or
reports
1904.17 Subcontractor records for major construction
projects
New Section
Mandatory Appendix A. Work-relatedness
New appendix
Mandatory Appendix B. Recording of specific conditions
New appendix
Appendix C. Decision tree for recording occupational
injuries and illnesses
New appendix
2.
Changes in recordkeeping definitions. The recordkeeping
system is very dependent on the definitions used to
determine the recording of specific cases. Some specific
modifications included in the proposed Sec. 1904.3
are to redefine "restricted work activity",
"establishment", and "medical treatment";
and provide new definitions for an "employee",
"subcontractor employees", "health
care provider", and "work environment".
The following addresses each proposed change to the
definitions:
a.
Eliminate the term "lost workdays", by replacing
it with a definition of "days away from work".
The OSHA recordkeeping system has historically defined
lost workdays as involving both days away from work
and days of restricted work activity. The proposal
would change the system to eliminate the counting
of days of restricted work activity altogether and
only count the number of days away from work. OSHA
has found no evidence that the current restricted
work activity day counts are being used in safety
and health program evaluation. It therefore sees no
purpose in continuing the restricted work activity
day count requirement.
Employers
will not be required to count days away from work
that extend beyond 180 days (six months). OSHA believes
day counts greater than 180 days add negligible information
for injury and illness case analysis while entailing
significant burden when updating the OSHA records.
OSHA solicits comment on the appropriateness of the
180 day criteria. Should the days away from work count
be capped? Is 180 days too short or long of a period?
If so, should the count be capped at 60 days? 90 days?
365 days? or some other time period? Although not
in the proposed rule, OSHA is considering a modification
to the concept of days away from work to include days
the employee would normally not have worked (e.g.
weekends, holidays, etc.). OSHA believes this change
to calendar days would greatly simplify the method
of counting days away by eliminating the need to keep
track of, and subtract out, scheduled days off from
the total time between the employee's first day away
and the time the employee was able to return to full
duty. OSHA asks for comment on whether the reduction
of burden associated with this approach justifies
the change in the type of information that will be
collected.
Another
potential benefit of changing to calendar days would
be that the day count would more accurately reflect
the severity of the injury or illness. The day count
would capture all the days the employee would not
have been able to work at full capacity regardless
of work schedules. For example, if an employee, who
normally does not work weekends, is injured on a Friday
and is unable to work until the following Tuesday,
the "days away from work" would be three
(3), using calendar days, rather than one (1) day,
using work days. If the same injury occurred on a
Monday, the day count would be three (3) using either
calendar or workdays. Changing the day count to calendar
days would eliminate discrepancies based upon work
schedules. Thus, the day counts would be easier to
calculate and potentially more meaningful.
One
of the potential problems with this change would be
that economic information on lost work time as a measure
of the impact of job related injuries and illnesses
on work life would no longer be available. Employers
could, however, estimate work time lost by applying
a work day/calendar day factor to the recorded day
counts. OSHA solicits comment on the idea of counting
calendar days rather than work days, in particular,
what potential do these methods have for overstating
(i.e., counting calendar days) or understating (i.e.
counting work days) the severity of injuries and illnesses?
b. Clarify "employee". "Employee"
is defined in Section 3(6) of the Act. A regulatory
note is included within the definition to clarify
that for OSHA recordkeeping purposes "employees"
include those workers whom the employer supervises
on a day-to-day basis. These workers may include workers
provided by a temporary help service, a contractor,
or a personnel leasing service. This is consistent
with case law and the interpretation currently used
by OSHA.
c.
Redefine "establishment". The definition
of an establishment describes the location the records
cover. To be most useful the records must be specific
to a particular location. "Establishment"
means a single physical location that is in operation
for 60 calendar days or longer where business is conducted
or where services or industrial operations are performed.
This definition is a minor modification of the definition
of establishment found in the Standard Industrial
Classification Manual, 1987. The definition was modified
by introducing the 60 day provision. The current injury
and illness recordkeeping system defines an establishment
as a single physical location that is in operation
for 1 year or longer. OSHA believes the proposed shorter
time period (60 days) will facilitate the use of information
at more transient workplaces, such as construction
sites. OSHA requests comment on the costs and benefits
of this change.
The
proposed definition of establishment includes the
primary work facility and other areas such as recreational
and storage facilities, restrooms, hallways, etc.
The current system excludes both parking lots and
recreational facilities from the definition of establishment.
OSHA is proposing that the current practice of excluding
the company parking lot from the establishment be
continued, but is including recreational facilities
in the definition (see section below for discussion
of exemptions to work-relatedness). OSHA believes
that, by including related geographic areas, such
as recreational facilities, the recordkeeping system
will be simplified. OSHA requests comment on this
change.
The
concept of separate establishments for separate activities
found in the current supplemental instructions will
be incorporated into the regulations. When distinct
and separate economic activities are performed at
a single physical location, each activity may represent
a separate establishment. For example, contract construction
activities conducted at the same physical location
as a lumber yard may be treated as separate establishments.
Each distinct and separate activity should be considered
an establishment when (1) no one industry description
(Standard Industrial Classification, 1987) includes
such combined activities, and (2) the employment in
each such economic activity is significant, and (3)
separate reports can be prepared on the number of
employees, their wages and salaries, sales or receipts,
or other types of establishment information. This
approach is based on the definition of an establishment
found in the Standard Industrial Classification Manual,
1987.
d.
Redefine "first aid". The definition of
first aid has been modified to consist of a comprehensive
list of treatments considered first aid. OSHA has
attempted to include those treatments that are, in
and of themselves, associated with only minor cases.
Any treatment or care other than those found on the
first aid list would be considered medical treatment
for recordkeeping purposes. OSHA believes injuries
and illnesses requiring only the treatments listed
as first aid would be minor in nature and the recording
of them would not be consistent with the intent of
the Act. OSHA also believes a finite list will reduce
confusion, lead to consistent recordkeeping decisions
and greatly simplify the decision-making process.
A
treatment may be considered preventive only when there
is no work-related injury or illness prior to its
use. A treatment may not be defined as preventive
when given to stop an existing work-related condition
from becoming worse. The only exception to this rule
is tetanus/diphtheria shots/boosters. Tetanus/diphtheria
shots/boosters will continue to be included as first
aid treatment. OSHA seeks comment on whether this
approach to recording tetanus/diphtheria shots is
appropriate, or whether they should be considered
medical treatment.
For
further discussion of first aid and medical treatment,
see Issue 3 in the Issues for Comment section of this
preamble.
e.
Define "health care provider". This is a
person operating within the scope of his or her health
care license, registration or certification. OSHA
recognizes that this definition differs from definitions
of health care provider found in other government
regulations and requests comment on its appropriateness
for OSHA injury and illness recordkeeping purposes.
OSHA is considering qualifying this definition, for
example by limiting it to personnel with specific
training. OSHA requests comment on this limitation.
f.
Redefine "medical treatment". Medical treatment
is defined to include any treatment other than first
aid treatment. The definition focuses on the nature
of the treatment given and not on the person administering
the treatment (e.g. physician, registered health professional,
etc.). Any treatment not included in the definition
of first aid is considered medical treatment, making
the two groups mutually exclusive. This approach provides
clear guidance for employers and thus eliminates any
"grey areas" that must be interpreted by
employers. For further discussion of first aid and
medical treatment, see Issue 3 in the Issues for Comment
section of this preamble.
g.
Define "Responsible Company Official". The
definition of responsible company official is central
to directing the accountability for the accuracy and
completeness of the OSHA records for an establishment
to the upper management level of the firm. The proposed
definition will place the responsibility to certify
the accuracy and completeness of the Log and Summary
with an owner of the company, an officer of the corporation,
the highest ranking company official at the establishment
or his or her supervisor.
OSHA
believes that by requiring a higher level employee
of the firm to certify the Log, companies will have
a greater incentive to take appropriate measures to
assure the accuracy and completeness of the information.
h.
Define "Restricted Work Activity". The definition
of restricted work activity will be modified to include
injuries and illnesses where the worker is not capable
of performing at full capacity for a full shift (1)
the task he or she was engaged in at the time of injury
or onset of illness; (2) any activity that he or she
performed or was expected to perform on the day of
injury or onset of illness. OSHA believes this definition
will focus on the hazardous tasks that lead to serious
injuries and illnesses and lead to greater consistency
in the recording of these more severe cases. For further
discussion of restricted work activity, see Issue
4 in the Issues for Comment section of this preamble.
i.
Define "site controlling employer". A site
controlling employer is an employer in the construction
industry (SIC codes 15, 16 and 17) with contractual,
legal and/or practical control over the performance,
timing, or coordination of other employers' work on
the construction project. An employer (such as a general
contractor) that retains another employer to work
on the project is presumed to have sufficient control
over the subcontractor's performance to be considered
a site controlling employer. In addition, an employer
(such as a construction manager) is a site controlling
employer if it has managerial or supervisory authority
with respect to employers engaged on the project,
regardless of whether it has a contractual relationship
with those employers. For further discussion of subcontractor
records, see number 15 of this section.
j.
Define "subcontractor employees". This proposal
requires site controlling employers in the construction
industry, for construction projects with an initial
total contract value of $1 million or more, to maintain
separate injury and illness records for certain on-site
employees other than their own, as described in number
15 of this section. Separate records must be kept
for those "subcontractor employees" who
are present at a construction project in connection
with their construction job, and are not employees
of the site controlling employer at that construction
project.
k.
Define "work environment". The definition
of work environment is central to determining work-relatedness.
The proposed definition is compatible with the definition
traditionally used in the supplemental instructions.
The work environment is defined as the employer's
establishment and other locations where employees
are engaged in work-related activities or are present
as a condition of their employment.
l.
Define "work-related". Although employers
are required to record occupational, or work-related
injuries and illnesses, the current regulations do
not provide a definition of work-related. This proposal
includes "work-related" in the definition
section of the regulatory text and further clarifies
the concept in Mandatory Appendix A. The proposed
definition is based on the definition in the current
supplemental instructions, but is modified to create
several new exceptions to the presumption of work-relatedness,
which are explained below. Additionally, for injury
and illness recordkeeping purposes, if an event in
the work environment either caused or contributed
to the case or aggravated a pre-existing condition,
then it is considered work-related.
It
has also been suggested that work-relationship should
be limited to where it is demonstrated that the work
environment contributed substantially (fifty percent
or more) to the condition. OSHA requests input on
the proper level of work-relationship that should
be used. OSHA requests input on how work contribution
can be objectively measured for such a purpose.
For
OSHA injury and illness recordkeeping purposes, the
concept of "work-related" has traditionally
been based on a geographic concept of the work environment.
The presumption has been made that if injuries or
illnesses occur at the employer's establishment, then
the case is work-related. This includes cases occurring
while the employee is on break, in the rest room or
in storage areas when located on the employer's premises.
Many employers have criticized this policy, citing
cases that occur at the establishment that they believe
have a limited workplace relationship. As a result,
the 1986 guidelines provided for several exceptions
to this rule: removing employee parking lots and recreational
facilities from the definition of the premises under
certain conditions; excluding those cases where symptoms
arise at work, but are caused by accidents or exposures
away from work; excluding cases where the employee
was at the establishment as a member of the general
public rather than as an employee; and excluding cases
arising solely from pre-existing conditions.
As
recommended in the Keystone report, the proposed revision
continues to use the geography based presumption of
work-relatedness. Parking lots will continue to be
excluded from the proposed definition of establishment.
Company access roads will be added to the exclusion.
By excluding parking lots and access roads, some injuries
and illnesses will be excluded while employees are
arriving to or leaving from work. OSHA seeks input
on whether the exception for parking lots should be
continued, and/or whether OSHA should continue to
exclude injuries and illnesses that occur while employees
are commuting to and from work.
While
recreational facilities are being included in the
definition of establishment, injuries or illnesses
occurring on company recreational facilities may still
be excluded by the proposed "voluntary participation
in wellness programs" exception explained below.
The exception will be based on the activity the employee
was engaged in rather than the physical location itself
to preserve and simplify the geography based presumption
of work-relatedness.
Several
new and/or revised activity-based exceptions to the
presumption of work-relatedness are being proposed.
OSHA requests comment on any and all of the following
proposed exceptions:
Cases resulting solely from voluntary participation
in wellness programs, fitness activities, recreational
activities, and medical programs. This would include
cases occurring during exercise activities, blood
donations, physicals, flu vaccination programs, etc.
unless the employee was participating as a condition
of employment.
Cases
involving eating, drinking, or preparing one's own
food when unrelated to occupational factors. This
exception would eliminate the recording of cases such
as an employee who cuts a finger opening a can of
food for lunch or is burned while drinking coffee.
Cases that are solely the result of employees doing
personal tasks (totally unrelated to their job) at
the establishment outside of normal working hours.
This would exclude those cases where the employee
is injured because the employer was allowing the worker
to use employer equipment at the establishment for
personal uses outside of normal working hours. OSHA
requests comment on the appropriateness of this approach,
especially on the limitation that these events occur
"outside of normal work hours".
Cases resulting solely from acts of violence committed
by family members, a former spouse, or self-inflicted
when unrelated to the employee's work situation. This
exemption is based on the Keystone's recommendation
that injuries and illnesses involving an intentional
act of violence in the work environment should be
considered work-related unless it can be clearly established
that the act was not related to the employee's work
situation. The intent of the Keystone group was to
exclude those cases that are clearly related to a
domestic dispute that leads to subsequent violence
in the workplace, such as a worker who is assaulted
by a spouse or ex-spouse.
For
situations involving violence committed by individuals
other than family members or a former spouse, OSHA
believes it would be difficult, if not impossible,
to determine if the case was related to work or to
a domestic situation. For this reason, the exemption
to work-relatedness has been limited to violence committed
by family members or former spouses. Personal acts
of violence perpetrated by employees, co-workers,
customers, or others would not be excluded. OSHA requests
comment on whether this exemption should be expanded
to other kinds of personal relationships. If so, how
should it be defined? Also, should the definition
of family be limited or defined? If so, how?
Cases involving workers who were never engaged in
any duty at work that could have placed stress on
the affected body part. This would exclude those cases
where symptoms arise at work, but are caused by accidents
or exposures away from work.
Cases involving workers who were never exposed to
any chemical or physical agent at work that would
be associated with the observed injury or illness.
This would also exclude those cases where symptoms
arise at work, but are caused by accidents or exposures
away from work.
Cases resulting solely from activity in voluntary
community or civic projects away from the employer's
establishment. This reflects and clarifies the work-relationship
criteria of injuries and illnesses occurring away
from the employer's establishment. Cases occurring
away from the employer's establishment are considered
work-related if the employee is engaged in a work
activity or is there as a condition of employment.
Cases that result solely from normal body movements,
including walking unencumbered, talking, tying a shoe,
sneezing, or coughing, provided the activity does
not involve a job-related motion and the work environment
does not contribute to the injury or illness. The
Keystone report recommended this exemption. The report
suggested that injuries and illnesses related to a
pre-existing condition should not be recorded if they
are not related to an identifiable work activity.
The exclusion would not apply if it involved repetitive
motion or if the work environment either caused or
contributed to the injury/illness.
A mental illness will not be considered work related,
except mental illnesses associated with post-traumatic
stress. OSHA seeks input on the following questions:
(A)
How should OSHA define mental health conditions for
recordkeeping purposes, and when and how should the
conditions be entered into the injury and illness
records? (B) How should employers determine the work-relatedness
of mental health conditions? (C) How would employers
gain knowledge of mental health conditions, given
the issue of patient/doctor confidentiality? For injury
and illness recordkeeping purposes, OSHA has historically
evaluated injuries and illnesses experienced by employees
working in their homes as cases occurring off the
employer's premises. Because alternative work place
policies (allowing employees to work out of their
homes) are becoming more commonplace, OSHA is incorporating
a section within Mandatory Appendix A to address the
issue of "work-relatedness" for employees
who work at home. An injury or illness will be considered
work-related if it occurs while the employee is performing
work for pay or compensation in the home, if the injury
or illness is directly related to the performance
of work rather than the general home environment or
setting. OSHA is considering whether this policy should
be maintained, or whether work-relatedness should
be presumed for injuries and illnesses of these employees.
OSHA solicits comment on this issue.
For
further discussion of work relatedness, see Issue
2 in the Issues for Comment section of this preamble.
3.
Modify the meaning of "recordable occupational
injury or illness" (see proposed section 1904.4
in the regulatory text). At the present time certain
injuries are to be recorded, namely those which result
in death, and injuries other than minor injuries requiring
only first aid and which do not involve loss of consciousness,
restriction of work or motion, medical treatment,
or transfer to another job. Currently, all diagnosed
(recognized) occupational illnesses are to be recorded,
regardless of severity. The distinction between illnesses
and injuries is currently based on the nature of the
precipitating event or exposure. Cases which result
from instantaneous events are considered injuries,
and cases which result from non-instantaneous events
are considered illnesses. This current distinction
between injuries and illnesses often results in confusion
and arbitrary and counter-intuitive decisions on how
to record a case. For example, a small cut resulting
in an infection would be recorded as an injury, even
though infection is commonly considered an illness.
The
proposed change would eliminate the need for employers
to make a distinction between injuries and illnesses.
One set of criteria would be used to evaluate all
cases thereby minimizing confusion and inconsistent
recording. This proposal represents a major simplification
of the recordkeeping system, which would result in
more accurate injury and illness data, and reduce
the recordkeeping burden for employers who are required
to maintain records.
Currently,
detailed data for coding cases is collected by BLS
only for injuries and illnesses that involve days
away from work. If recordkeeping changes are made
and no changes are made to the current BLS survey
methodology, separate information for injuries and
illnesses will no longer be published by BLS for cases
that do not result in days away from work. Published
information would continue to be available for combined
injuries and illnesses, combined injuries and illnesses
resulting in days away from work and combined injuries
and illnesses without days away from work. In addition,
if the survey methodology were modified to collect
and code a sample of case characteristics for cases
which do not involve days away from work, separate
injury and illness information could be published
for all cases.
The
proposed criteria for recordable occupational injuries
and illnesses would require employers to record any
case where (1) an injury or illness exists; and (2)
is work-related; and (3) meets one or more of the
following criteria: (a) involves medical treatment;
OR (b) involves death, loss of consciousness, or in-patient
hospitalization for treatment; OR (c) involves a day(s)
away from work, restricted work activity, or job transfer;
OR (d) includes any condition as listed in Mandatory
Appendix B.
4.
Provide clear guidance for determining when an injury
or illness case is resolved. Determination of case
resolution is particularly important because employers
may be dealing with a reinjury or recurrence of a
previous case and must decide whether the recurrence
is a "new case" or a continuation of the
original case. Historically, the supplemental instructions
to the recordkeeping regulations required employers
to evaluate previously recorded injuries and illnesses
as new cases if they were aggravated by additional
work-related events or exposures. OSHA developed and
included new guidance for evaluating cumulative trauma
disorders as new cases in the Ergonomics Program Management
Guidelines For Meatpacking Plants (ex. 11) which were
published in 1990. The "Meatpacking Guidelines"
provide: If and when an employee who has experienced
a recordable CTD becomes symptom free (including both
subjective symptoms and physical findings), any recurrence
of symptoms establishes a new case. Furthermore, if
the worker fails to return for medical care within
30 days, the case is presumed to be resolved. Any
visit to a health care provider for similar complaints
after the 30-day interval "implies reinjury or
reexposure to a workplace hazard and would represent
a new case."
OSHA
is now proposing to expand the use of the criteria
found in the "Meatpacking Guidelines" to
all cases (including injuries and illnesses of the
back and lower extremities), while increasing the
number of days to 45. A recurrence of a previous work-related
injury or illness will be presumed to be a new case
when it either (1) results from a new work accident,
or (2) 45 days have elapsed since medical treatment,
restricted work activity and days away were discontinued
and the last signs or symptoms were experienced. This
presumption is rebuttable by medical evidence indicating
that the prior case had not been resolved. In doing
so, OSHA believes it will simplify the decision-making
process for determination of a "new case"
and result in more complete and consistent data. This
method of defining case resolution/duration should
provide better data on the incidence of illness cases
that frequently last only 2-3 weeks (e.g. dermatitis,
some CTDs, etc.) and recur on a regular basis.
OSHA
solicits comment on the appropriateness of the 45-day
interval. Is 45 days too short or long of a period?
If so, should the period be 30 days? 60 days? 90 days?
or some other time period? Should different conditions
(e.g., back cases, asthma cases, etc.) have different
time intervals for evaluating new cases? OSHA is also
seeking input for an improved way to evaluate new
cases.
Should
a new category of cases be created to capture information
on recurring injuries and illnesses? One option is
to add an additional "check box" column
to the proposed OSHA Form 300 for identifying those
cases that are recurrences of previously recorded
injuries and illnesses. This would allow employers,
employees and OSHA inspectors to differentiate between
one time cases and those that are recurrent, chronic
conditions. This approach may help to remove some
of the stigma of recording these types of disorders
and lead to more complete records. OSHA solicits input
on this approach. Will a recurrence column reduce
the stigma of recording these types of cases? Should
recurrences be included in the annual summaries? Should
a time limit be used to limit the use of a recurrence
column? 5. The proposal will also require that the
proposed forms (OSHA 300 and 301) be completed within
7 calendar days, rather than the currently required
6 workdays. OSHA believes this will simplify the requirements
by replacing a varying amount of time (depending on
the establishment's work schedule) with a standard
week.
6.
Enhance the ability to computerize/centralize the
OSHA 300 Log in proposed Sec. 1904.4. The current
regulations and instructions provide for computerization
of the OSHA 200 Log, providing that the employer has
available at the establishment a paper copy of the
Log current within 45 calendar days. This proposal
would allow employers to keep their OSHA Log on computer,
provided that the employer is able to produce a copy
of the Log within 4 hours of a request by an authorized
government representative who is permitted access
to the Log under proposed Sec. 1904.11. This proposal
will reduce the employer's cost of recordkeeping and
allows for maximum flexibility when employers choose
to computerize their records, without decreasing the
access to those records by authorized personnel.
7.
Allow for the computerization of Incident Records
in proposed Sec. 1904.5. At the present time, the
regulations provide for the computerization of the
OSHA 200 Log, but not for the computerization of the
supplementary record, the OSHA 101. This proposal
would allow employers to computerize both of the forms,
which may result in less paperwork burden for employers
without compromising the quality of those records.
The provisions for computerization parallel the proposed
changes for computerization of the OSHA 300 Log found
in proposed Sec. 1904.4.
8.
Modify the proposed Sec. 1904.6 (formerly 1904.5)
to provide a new title, require annual average number
of employees and total hours worked by all employees
to be included in the year-end summary, and require
a responsible company official to certify the accuracy
and completeness of the records. The section would
be titled "Preparation, Certification and Posting
of the Year-End Summary". The proposal to require
an estimate of the employees' total hours worked to
be listed on the year-end summary would facilitate
hazard analysis and incidence rate calculation. An
injury and illness incidence rate is the number of
injuries and/or illnesses related to a common exposure
base of 100 full-time workers. The common exposure
base enables meaningful comparisons of the data regardless
of industry, firm size and time period. Information
on annual average employment and total hours worked
can be obtained from payroll or other company records,
and is often available from other reports required
by the government, such as unemployment insurance
or workers' compensation reports. For some employers,
the added burden will be negligible because of their
participation in the BLS Annual Survey of Occupational
Injuries and Illnesses which already requires a compilation
of this information. Approximately 10 percent of employers
who regularly are required to keep records are selected
each year to participate in the BLS survey. OSHA requests
comment on the costs and benefits associated with
this requirement and suggestions for alternative methods
for collecting the information necessary to calculate
these incidence rates.
The
proposal will require the employer to post the year-end
summary for the entire year, from February 1 to January
31 of the following year. Because the records are
kept on a calendar year basis, OSHA believes one month
(January) is a reasonable time period for completing
the summary section of the form. The year long posting
requirement will impose no additional burden on the
employer while presenting employees with the opportunity
to examine the totals throughout the year. This requirement
will also allow employees hired during any time of
the year to gain knowledge about the safety and health
environment of the workplace.
9.
Modify the location requirements to provide for enhanced
centralization of records. This proposal would combine
the current Sec. 1904.14, Employees not in fixed establishments,
and some of the provisions for centralization of records
found in the current Sec. 1904.2, Log and summary
of occupational injury and illness, into the proposed
Sec. 1904.7, Location of records. The new section
contains criteria for records pertaining to employees
who either work at an establishment, or who report
to an establishment but work elsewhere, or who are
engaged in physically dispersed work activities. Under
the current system; (1) records pertaining to employees
that report to an establishment must be kept at the
establishment, (2) for employees that report to an
establishment but work elsewhere, the records must
be kept at the establishment where they report, and
(3) when employees do not report to a fixed establishment
on a regular basis, the records must be kept in a
central location with telephone access.
The
location requirements will be modified to allow for
the maintenance of records at an alternate, centralized
location. The current regulations do not provide for
centralization of the supplementary records, but do
allow centralization of the OSHA 200 Log, providing
that the employer has available at the establishment
a paper copy of the Log current within 45 calendar
days. This proposal would eliminate the need for a
current copy of the required records at the establishment,
provided the employer is able to produce copies of
the records within 4 hours of a request by an authorized
government representative who is permitted access
to the records under the proposed Sec. 1904.11. The
employer can either transmit a copy of the records
to the worksite or to the government representative's
office. This proposal allows for greater flexibility
when employers choose to centralize and/or computerize
their records without decreasing the access to those
records by authorized individuals and provides for
recent and future technological developments. OSHA
requests comment on situations where the 4 hour requirement
may be infeasible. Should the requirement be restricted
to business hours, and if so, to the business hours
of the establishment to which the records pertain
or the establishment where the records are maintained?
The current system requires a separate set of records
for each single physical location of a multi-establishment
firm, regardless of employment size of the location.
The proposal modifies this requirement by allowing
an employer to consolidate its records for all establishments
with less than 20 employees as long as the establishment
location is specified in the Department column on
the proposed OSHA Form 300.
10.
Modify the retention of records section (Sec. 1904.6)
by renumbering and retitling it to Sec. 1904.9 Retention
and updating of work-related injury and illness records,
reducing the retention period from five to three years,
and requiring employers to update the injury and illness
records during the three year retention period to
include newly discovered injuries and illnesses. The
employer will be required to revise the Log to reflect
changes which occur in previously recorded injuries
and illnesses, including changes in the count of days
away from work. Employers must also update totals
or summaries at least quarterly. OSHA asks whether
the summary update should be more or less frequent?
Employers will not be required to update the OSHA
Form 301 to reflect changes in previously recorded
cases.
The
current Sec. 1904.2 states that employers shall maintain
a Log and summary of injuries and illnesses, which
has been interpreted to require the updating of the
Log, but not the updating of supplementary records
or annual summary, to reflect newly discovered cases
or to reflect newly discovered information concerning
a case.
The
proposed change would clarify the employers' obligations
to update these records during the three year retention
period, if and when they receive additional or updated
information concerning a case.
11.
Modify the access to records section, currently Sec.
1904.7 and proposed Sec. 1904.11, to require employers
to provide copies of records to government representatives.
The current section states that "Each employer
shall provide, upon request, records provided for
in Secs. 1904.2, 1904.4 and 1904.5 for inspection
and copying * * *". In some instances, instead
of providing copies of the records, some employers
have attempted to provide OSHA compliance personnel
only with access to the records, with the copying
to be done by hand. The proposed change would clearly
require employers to provide copies of the records
to government personnel authorized to access injury
and illness records.
The
section, compatible with section 1910.20 Access to
Employee Exposure and Medical Records, will also be
modified to clarify that the request for access by
authorized government representatives can be made
in person or in writing. This, in conjunction with
proposed Sec. 1904.13, will allow for collection of
the records through the mail.
Currently,
only government representatives are authorized access
to the injury and illness supplementary forms (OSHA
No. 101). This proposal will expand the access authorization
to employees, former employees, and their designated
representatives. OSHA believes this will increase
employee and/or labor groups' ability to perform meaningful
safety and health program analysis.
The
section will also be modified to require employers
to provide copies of the OSHA Log to authorized individuals
at no cost. This will remove existing barriers to
easy access to the forms by employees, former employees
and their designated representatives.
The
proposal will specify time limits the employer must
meet in providing the injury and illness records once
a request of access is made. Employers must provide:
1) copies of the OSHA Forms 300 and 301 within 4 hours
of a request made in person by an authorized government
representative; 2) access to the OSHA Forms 300 and
301 for review by the close of business on the next
scheduled workday when a request is made by an employee,
former employee or their designated representative(s);
3) copies of the OSHA Forms 300 and 301 within seven
calendar days when a request is made by an employee,
former employee or their designated representative(s);
or 4) within 21 calendar days of a written request
received from an authorized government agency. OSHA
solicits input on these time limitations. Are they
reasonable? Should they be shortened or extended?
12. Clarify the requirements of reporting fatalities
and multiple hospitalization incidents, currently
Sec. 1904.8 and proposed Sec. 1904.12. As can be seen
in Section III. of the preamble to the April 1, 1994
final rule of the reporting requirements (FR Vol.
59, No. 63, 15599), it was OSHA's intent to require
employers to make their reports in a manner which
allows OSHA immediate access to the information. However,
because the regulatory text reads, "shall orally
report", there is the possibility that some employers
may leave a message on an answering machine during
non business hours to satisfy the requirement. Therefore,
for clarification purposes, the regulatory text will
be changed to read "* * * shall, report the fatality/multiple
hospitalization by telephone or in person to the Area
Office of the Occupational Safety and Health Administration
(OSHA), U. S. Department of Labor, that is nearest
to the site of the incident during regular business
hours, or by using the OSHA emergency toll-free central
telephone number (1-800-321-OSHA [6742]) during non
business hours."
OSHA
will also clarify the requirement to report three
or more in-patient hospitalizations which occur at
a single site. The site controlling employer or designee
will be responsible for making the report if no more
than two employees of a single employer were hospitalized
but, collectively, three or more workers were hospitalized
as in-patients.
The
OSHA toll-free telephone number will also be added
to the regulatory text for clarification purposes.
13.
Clarify an employer's responsibility to report injury
and illness information to the Secretary of Labor
and the Secretary of Health and Human Services. The
proposed Sec. 1904.13 consolidates current Secs. 1904.20,
1904.21, and 1904.22 and reflects the transfer of
some responsibilities from the BLS to OSHA. Injury
and illness data required to be maintained by employers
may be collected periodically by mail or other means.
Data could be collected for a variety of purposes,
including but not limited to, injury/illness surveillance;
development of information for promulgating or revising
safety and health standards; evaluating the effectiveness
of OSHA's enforcement, training and voluntary programs;
public information; and for directing OSHA's program
activities, including workplace inspections.
14.
Change the procedure for petitioning recordkeeping
exceptions. The current variance section will be deleted.
Instead, all requests for recording exceptions or
variances will be made pursuant to the procedures
in 29 CFR 1905. This change eliminates duplicate sets
of rules/procedures found in Title 29 of the Code
of Federal Regulations. The ability to request an
exception or variance to the requirements under Part
1904 will continue using the procedures outlined under
Part 1905.
Under
the current recordkeeping requirements, one variance
has been granted to AT&T, and subsequently expanded
to the Bell companies. The variance allows AT&T
to keep records of its "field force" by
division, rather than by establishment. The centralization
of records provision contained in this proposal will
eliminate the continued need for this variance. All
exemptions granted prior to the publication date of
the final rule of revised Part 1904 will be null and
void.
15.
Require comprehensive records for "subcontractor
employees" in the construction industry in proposed
Sec. 1904.17. The Keystone report originally proposed
the use of "site logs" or comprehensive
injury and illness records for major construction
activities. The report noted that construction sites
are normally composed of multiple contractors and
subcontractors, each of which may be present at the
site for a relatively short period of time. Under
the current regulations there are no records readily
available to represent the injury and illness experience
for the entire site.
Accordingly,
the proposal would require site-controlling employers
(or their designees) in the construction industry
to maintain a separate record reflecting the injury
and illness experience of employees working for construction
firms other than their own, working at the construction
site when the initial construction contract value
exceeds $1,000,000. In addition to the normal OSHA
Log entry and Incident Record (OSHA Forms 300 and
301) which must be completed for all injuries and
illnesses involving the site controlling employer's
own "employees", a separate, additional
record requiring an abbreviated entry shall be completed
for injuries and illnesses of "Subcontractor
employees". ("Subcontractor employees"
are defined as employees of construction firms (in
SICs 15,16, and 17) who are present at a construction
project in connection with their job(s) who are not
employees of the site controlling employer at that
construction project.) The site controlling employer
would only have to record injuries and illnesses of
"subcontractor employees" who are employed
by construction employers with 11 or more employees
at any time during the previous calendar year. The
site-controlling employer would only be required to
enter the name of the injured "subcontractor
employee", his or her company, date, and a brief
description of the injury or illness. The site controlling
employer has the option of using a separate OSHA Form
300, an equivalent form, or a collection of records
obtained from the subcontractor employers (e.g. photocopies
of subcontractors' Logs) to satisfy this requirement.
The increase in burden for employers is offset for
those employers who already maintain information on
these cases for liability and other purposes. OSHA
invites comment on limiting the requirement to injuries
and illnesses experienced by "subcontractor employees"
whose employers, because of their size, are covered
by the OSHA injury and illness recordkeeping requirements.
Should this requirement be expanded to record the
injuries and illnesses experienced by all "subcontractor
employees" on site, regardless of the employer's
status under the recordkeeping requirements coverage?
The site-controlling employer would not be responsible
for updating the records or entering counts of days
away from work or restricted workdays for these "subcontractor
employees". The "actual" employer of
the worker (if not otherwise exempt from OSHA recordkeeping
requirements) would be responsible for completing
in detail any entries on their own OSHA records. Employers
covered by the standard for the Process Safety Management
of Highly Hazardous Chemicals; Explosives and Blasting
Agents, 29 CFR 1910.119, are currently required to
keep similar records.
The
injuries and illnesses recorded for "subcontractor
employees" under this requirement would not be
included in the national statistics generated by the
BLS Annual Survey. Records for "subcontractor
employees" will be kept separately from the OSHA
300 Log; therefore, while site controlling employers
and subcontractors with 11 or more employees will
both maintain the injury and illness records, there
will be no double counting of injuries and illness
in the statistical system.
An
alternative to this section has been suggested: Each
contractor with 11 or more employees in an individual
project, shall yearly or upon completion of their
work on the project, provide the project owner, or
agent for the owner, with a copy of their project
specific OSHA 300 Log. The project owner would have
the responsibility to collect the data and send it
to OSHA, as required. OSHA invites public comment
on this alternative.
16.
Provide special guidance in a mandatory appendix for
the recording of specific types of injuries and illnesses
(see proposed Mandatory Appendix B). OSHA believes
all of these conditions are recordable under the current
recordkeeping requirements. However, in order to capture
significant non-fatal cases that may not meet the
other general criteria contained in this proposal,
OSHA has developed a listing of specific conditions
and corresponding recording criteria for each condition,
and has incorporated the listing into the proposed
regulations as a mandatory appendix. The application
of this list will assist in collecting more timely
and complete data on non-minor occupational illnesses
and injuries which are serious, significant or disabling
but otherwise would not be captured consistently by
the other recording criteria discussed in change number
3 above. The application of the list will also provide
clear direction that is needed by employers to determine
the proper recording of these conditions, and will
incorporate the recordkeeping guidance that OSHA has
developed in various guidelines, directives and letters
of interpretation.
The
current recordkeeping system requires "all"
occupational illnesses to be recorded. An occupational
illness is currently defined as "any abnormal
condition or disorder" arising from a non-instantaneous
work-related event or exposure. This definition is
intended to collect comprehensive information on occupational
illnesses as soon as they are detected or recognized.
Detection or recognition can result from a clinical
diagnosis, or through lab tests, x-rays, or other
diagnostic techniques. The language of the current
general illness recording criteria is so broad and
inclusive that, in theory, it should encompass all
illnesses, regardless of severity or duration. However,
because there is no specific guidance for individual
conditions, employers are often unsure of which diagnostic
results constitute detection or recognition of an
illness that should be entered into the records.
OSHA
believes that by providing specific guidance for specific
conditions, even though that guidance may be less
inclusive than the general definitions currently in
use, employers will be more likely to understand and
comply with the recordkeeping requirements and the
data will be improved.
In
many instances, OSHA standards require employers to
conduct certain tests or medical evaluations. In most
cases, the lowest test results or medical criteria
used as action thresholds within the standards are
being proposed as the recording criteria for injury
and illness recordkeeping purposes. OSHA does not
believe that the recordkeeping criteria are restricted
by these action thresholds prescribed in specific
standards, but believes that using the same criteria
for different standards and regulations improves the
simplicity of the overall regulatory system. For example,
the lowest biological and other monitoring test results
used as threshold levels in the lead and cadmium standards
will be used as the recording criteria. Under such
circumstances, employers are required to use a single
set of criteria to meet the obligations of both rules.
The burden on employers may be reduced when parallel
requirements exist.
OSHA
believes that early recognition and recording of injuries
and illnesses promote more timely resolution of the
hazardous conditions causing them. The recording of
injuries and illnesses in their early stages provides
information that would allow the employer to correct
hazardous conditions before they result in material
impairment or do more serious damage to the employee.
For this reason, the proposed criteria for recordable
conditions are not limited to clinical diagnosis of
an illness or injury by a physician. Recording of
conditions listed in the Mandatory Appendix B when
the applicable criteria are met will enhance the utility
of the log as an information source and management
tool.
OSHA
selected the conditions listed in Appendix B using
multiple criteria, as follows: 1) The condition would
not be recorded, or would not be recorded accurately
or consistently, using the general criteria, 2) The
condition occurs commonly and large numbers of employers
need specific guidance, and/or 3) The condition has
a history of controversy that warrants specific guidance.
If any of these conditions were met, OSHA also considered
1) existing standards covering the condition or hazard,
2) existing interpretations covering the proper recording
of the condition, and/or 3) threshold recording criteria
that could be developed using objective methods for
determining the proper recording of an injury or illness.
OSHA asks for input on whether these criteria are
appropriate, or whether other criteria should be used
for determining which conditions are listed in Appendix
B. OSHA also asks for input on the specific criteria
that have been chosen for each condition, including
the effects of adopting these criteria, possible alternatives,
and the potential benefits and costs associated with
various alternatives.
The
listed conditions must be recorded and entered into
the injury and illness records when the proposed criteria
are met. Some of these conditions are:
(a.)
Elevated blood lead levels. The current recordkeeping
system requires employers to record cases where an
employee's blood lead level is in excess of 50 micrograms
(ug) per 100 grams of whole blood. This has been the
criteria in the recordkeeping guidelines since 1986.
OSHA is proposing to revise this criteria to 40 micrograms
(ug) per 100 grams of whole blood to match the lowest
biological monitoring test result used as an action
threshold within the lead standard (29 CFR 1910.1025(j)(2)(B)).
Employers would record cases where an employee's blood
lead level is in excess of 40 micrograms (ug) per
100 grams of whole blood.
OSHA
asks for input on what level should be used and any
other criteria which could be used to record lead
related illnesses.
(b.)
Cadmium. Employers would record cases where an employee's
cadmium levels are as follows: level of cadmium in
urine (CdU) exceeding 3 micrograms per gram of creatinine
(ug/g Cr); level beta-2 microglobulin in urine (b2-M)
exceeding 300 micrograms per gram of creatinine (ug/g
Cr); or level of cadmium in blood (CdB) exceeding
5 micrograms per liter of whole blood (ug/lwb). These
criteria are based upon the surveillance levels found
in the Cadmium Standard, 1910.1027.
(c.)
Hearing loss. Employers would record any work-related
case resulting in an average shift of 15 decibels
or more at 2000, 3000 and 4000 hertz in one or both
ears as measured from the employee's original baseline
established under 29 CFR Part 1910.95 Occupational
Noise Exposure. The hearing test may be adjusted for
aging and the recorded case may be removed if a retest
performed within 30 days does not confirm the original
shift. A presumption of work-relatedness is used for
hearing loss occurring to employees covered by the
Occupational Noise Exposure standard, i.e. those who
are exposed to noise levels in excess of an 85 dB
8 hour time weighted average.
The
lowest action level in the noise standard is an average
shift of 10 decibels or more at 2000, 3000 and 4000
hertz. OSHA is proposing the 15 decibel criteria for
recordkeeping purposes to account for variations in
the reliability of individual audiometric testing
results.
OSHA
asks for input on which level of a shift in hearing
should be used as a recording criteria; 10 decibels?
20 decibels? 25 decibels? For each level, what baseline
should be used? Preemployment (original) baseline?
Audiometric zero? Is adjusting for presbycusis appropriate?
(d.) Skin disorders. Employers would record skin disorders
lasting beyond 48 hours, including, but not limited
to, allergic or irritant dermatitis. OSHA asks if
there are significant skin disorders, such as urticaria,
which may not be captured by this criterion coupled
with the general recording criteria (i.e. medical
treatment, restricted work activity, days away from
work, etc.)? (e.) Asthma and other obstructive airway
disease. Employers would record an initial episode
of work-related asthma diagnosed by a health care
professional. Employers would also record subsequent
work-related episodes that result in the administration
of prescription drugs and/or diagnosis by a health
care provider. There are an estimated 200,000 cases
of occupational asthma every year according to the
National Institutes of Health. There are over 250
identified agents found in a diverse range of materials
and industrial processes that can cause occupational
asthma. OSHA believes it is essential to collect information
on episodes of work-related asthma in order to identify
and abate workplace conditions which lead to this
illness. OSHA is, however, concerned that its proposed
policy may result in the over-recording of occupational
asthma when employees have chronic, recurrent cases
of the disease. OSHA asks for input on possible ways
to reduce or eliminate over-recording that will not
result in the loss of significant asthma cases. OSHA
also requests information on how to differentiate
between episodes of asthma that are induced by the
work environment and those which are not.
(f.)
Asbestos-related disorders. Employers would record
any case resulting in a diagnosis by a health care
provider of asbestosis or mesothelioma, or the recognition
of any other parenchymal or pleural abnormality (e.g.
radiograph profusion category of 1/1 or greater by
the ILO classification system, pleural plaques and/or
pleural thickening). These criteria are based on information
found in Appendix D of the asbestos standard (29 CFR
Part 1010.1001) which discusses the signs and symptoms
of exposure-related disease.
(g.)
Bloodborne pathogens diseases (AIDS, HIV infection,
Hepatitis B., etc.). OSHA is proposing to require
employers to record exposure incidents which result
in disease (e.g., HIV, hepatitis B, hepatitis C).
Furthermore, OSHA is proposing that employers be required
to record lacerations or puncture wounds involving
contact with another person's blood or other potentially
infectious materials since these are clearly non-minor
"injuries". OSHA believes that these criteria
meet the Agency's mandate to collect information related
to the death, illness, and injury of workers. OSHA
requests comment on whether it is appropriate to record
these small puncture wounds and lacerations if they
do not lead to disease.
The
above criteria limit the number of "exposure
incidents", as defined in the Bloodborne Pathogens
standard, which are to be recorded. Incidents which
result in exposures to blood or other potentially
infectious materials to the eyes, mouth, other mucous
membrane, or non-intact skin would not be OSHA recordable.
OSHA
is aware that some health care facilities already
collect data on all bloodborne pathogens exposure
incidents because these events are believed to be
of serious magnitude. For example, many employers
collect information about needle punctures, blood
splashes to the eyes, and exposures on non-intact
skin. In light of this, OSHA is considering other
options for the recordability criteria of bloodborne
pathogens diseases. One option would require employers
to record all "exposure incidents". An "exposure
incident", as defined in the Bloodborne Pathogens
standard, paragraph (b) of 29 CFR 1910.1030, means
"a specific eye, mouth, other mucous membrane,
non-intact skin, or parenteral contact with blood
or other potentially infectious materials that results
from the performance of an employee's duties".
Using this same definition for the recordability criteria
may simplify the task of identifying what events need
to be recorded for OSHA recordkeeping.
OSHA
believes that the collection of information about
"exposure incidents" is useful to employers
in the control of bloodborne pathogens hazards. OSHA
recognizes, however, that this second option requires
the recording of "exposures" rather than
strictly illnesses or injuries.
OSHA
is seeking comments on this issue. What data is useful
to collect? Are there other criteria for the recording
of bloodborne infectious diseases which should be
considered? What experience do employers have in data
collection systems for this hazard? In an attempt
to address the concerns of personal privacy OSHA is
additionally proposing that the exposure incidents
described above be recorded simply as the type of
bloodborne pathogen exposure incident, regardless
of the outcome of the incident. In other words, employers
shall record occupationally acquired bloodborne pathogen
disease, such as Hepatitis B or C, simply as the initial
bloodborne exposure incident and note the type of
exposure (e.g. needlestick). The seroconversion status
and specific type of bloodborne disease need not be
entered. This strategy would enable employers to consider
data about needle punctures or lacerations (or other
bloodborne pathogens exposure incidents) while protecting
the privacy of individual employee's medical information.
(Please refer to the Issues for Comment section regarding
confidentiality for further discussion of the employee
privacy concerns.) These recording criteria apply
to all employees covered by the Act and are not limited
to those covered by the Bloodborne Pathogens Standard.
(h.)
Tuberculosis infection or disease. OSHA is proposing
that newly detected tuberculosis infections and cases
of active tuberculosis in workers with occupational
exposure be recorded. The criteria proposed is consistent
with that published by previous OSHA directives to
the field (Memorandum from Leo Carey to Regional Administrators,
February 26, 1993).
Work-relatedness
is presumed in work sites where the Centers for Disease
Control and Prevention (CDC) has published reports
of epidemics among workers resulting from workplace
exposures, i.e., correctional facilities; health care
facilities; homeless shelters; long-term care facilities
for the elderly; and drug treatment centers. The employer
can rebut this presumption of work relationship by
providing evidence that the employee is known to have
had a non-work exposure to active TB. Examples include
situations in which (1) an employee is living in a
household with a person diagnosed with active TB or
(2) the Public Health Department lists the employee
as a contact to a case of active TB.
All
other industries would record tuberculosis infections
or disease only if the employee was exposed to tuberculosis
in the worksite. For example, in industries where
tuberculosis is not a recognized hazard resulting
from work duties, tuberculosis infections or disease
would not routinely be recorded. However, if a worker
with infectious tuberculosis disease infected their
co-workers, the co-workers' infection/disease would
be recordable.
OSHA
is seeking to learn if there are other industries,
aside from those listed in the proposal, where reasonably
anticipated occupational exposure to tuberculosis
is occurring. Are there other types of worksites where
the presumption of work-relatedness should be applied?
(i.) In addition to these conditions, Mandatory Appendix
B provides guidance for cases resulting in carbon
monoxide poisoning, mercury poisoning, benzene poisoning,
UV burning of the eye, lacerations, hepatitis A, mesothelioma,
byssinosis, hypersensitivity pneumonitis, toxic inhalation
injuries, pneumoconiosis, eye injuries, musculoskeletal
disorders, fractures of bones or teeth, and burns.
OSHA
asks for input on possible additions, deletions, and
revisions to the list, different or additional criteria
(e.g. diagnostic test results) or any other information
that might be used for establishing the existence
of, and lead to the accurate, consistent recording
of injuries and illnesses.
III.
Specific Issues for Comment
OSHA
invites comment on the proposed changes in the regulations,
forms and supplemental instructions. OSHA has identified
the following nine issues. For some issues, the agency
is considering using alternative regulatory text which
is included in this "Specific Issues for Comment"
section. OSHA would like to receive specific comment
on these issues, including any cost and benefit estimates
on the various options discussed below:
Issue
1. Exemptions from OSHA injury and illness recordkeeping
requirements. The current regulations include exemptions
from most of the recordkeeping requirements for small
employers (no more than 10 employees) and establishments
in specific services and retail standard industrial
classifications (SICs 52-89). Industries traditionally
targeted for OSHA enforcement, which are those in
SICs 01 through 51, are not exempted. (Note the "exemption"
is really a partial one because "exempt"
employers must still comply with the provisions of
the current Sec. 1904.8, Reporting of fatality and
multiple hospitalization accidents (proposed Sec.
1904.12) and Sec. 1904.21, Duties of employers (proposed
Sec. 1904.13). Because the exemption is a partial
one, affected employers are referred to as "partially
exempt").
SIC
Exemption. In 1983, the industries selected for the
partial exemption were chosen from major industry
groups within SICs 52-89, at the two 2-digit level,
whose average lost workday case injury rate for 1978-80
was at or below 75% of the private sector average.
Industries traditionally targeted for OSHA enforcement,
which are those in SICs 01 through 51, are not exempted.
Application of this formula resulted in the current
list of partially exempted industries:
SIC
Industry
---------------------------------------------------------
55 Automotive dealers and gasoline service stations
56 Apparel and accessory stores
57 Furniture, home furnishings, and equipment stores
58 Eating and drinking places
59 Miscellaneous retail
60 Depository institutions
61 Nondepository institutions
62 Security and commodity brokers
63 Insurance carriers
64 Insurance agents, brokers and service
65 Real estate
67 Holdings and other investment offices
72 Personal services
73 Business services
78 Motion pictures
81 Legal services
82 Educational services
83 Social services
84 Museums, art galleries and botanical & zoological
gardens
86 Membership organizations
87 Engineering, accounting, research, management and
related services
88 Private Households
89 Miscellaneous services not elsewhere classified
Since
the partial recordkeeping exemption based on SIC codes
was implemented, the injury and illness rates of the
major industry groups have changed. If the same formula
were applied to the 1990-92 lost workday injury rate
statistics for SICs 52-89, at the 2-digit level, no
additional industries would be added to the partial
exemption. Two industries would lose their partial
exemption and be required to keep records: eating
and drinking places (SIC 58), and museums, art galleries
and botanical & zoological gardens (SIC 84).
Within
certain major industry groups (2-digit SICs), there
exist high hazard industries and industry groups (4
and 3-digit SICs) (ex.8). To address this "nesting"
problem, OSHA applied the 1983 evaluation criteria
to the 1990 through 1992 BLS lost workday injury data
at the 3-digit SIC level. Where no information was
available at the 3-digit level, OSHA used information
at the 2-digit level.
The
proposed text in this NPRM modifies the partial exemption
for industries in Standard Industrial Classifications
(SICs) 52 through 89 to reflect this refinement to
address the "nesting" problem. Current partially
exempt industries which would have to comply are:
SIC
553 Auto and Home Supply Stores,
SIC 555 Boat Dealers,
SIC 571 Home Furniture and Furnishings Stores,
SIC 581 Eating Places,
SIC 582 Drinking Places,
SIC 596 Nonstore Retailers,
SIC 598 Fuel Dealers,
SIC 651 Real Estate Operators and Lessors,
SIC 655 Land Subdividers and Developers,
SIC 721 Laundry, Cleaning, and Garment Services,
SIC 734 Services to Dwellings and Other Buildings,
SIC 735 Miscellaneous Equipment Rental and Leasing,
SIC 736 Personnel Supply Services,
SIC 833 Job Training and Vocational Rehabilitation
Services,
SIC 836 Residential Care,
SIC 842 Arboreta and Botanical or Zoological Gardens,
and
SIC 869 Membership Organizations Not Elsewhere Classified.
The
following industries, currently required to comply
with the injury and illness recordkeeping regulation,
will be partially exempt:
SIC
525 Hardware Stores,
SIC 752 Automobile Parking,
SIC 764 Reupholstery and Furniture Repair,
SIC 793 Bowling Centers,
SIC 801 Offices and Clinics of Doctors of Medicine,
SIC 807 Medical and Dental Laboratories, and
SIC 809 Miscellaneous Health and Allied Services,
Not Elsewhere Classified.
If
the same analysis, using data at the 3-digit level
where available, were applied to those industries
in SICs 01 through 51 (industries not historically
exempted from OSHA recordkeeping), the following industries
would have lost workday case rates less than 75% of
the private sector average:
SIC
074 Veterinary Services,
SIC 131 Crude Petroleum and Natural Gas,
SIC 211 Cigarettes,
SIC 233 Women's and Misses' Outerwear,
SIC 234 Women's and Children's Undergarments,
SIC 272 Periodicals,
SIC 273 Books,
SIC 274 Miscellaneous Publishing,
SIC 281 Industrial Inorganic Chemicals,
SIC 282 Plastics Materials and Synthetics,
SIC 283 Drugs,
SIC 286 Industrial Organic Chemicals,
SIC 291 Petroleum Refining,
SIC 319 Leather Goods, NEC,
SIC 357 Computer and Office Equipment,
SIC 366 Communications Equipment,
SIC 367 Electronic Components and Accessories,
SIC 376 Guided Missiles, Space Vehicles, Parts,
SIC 381 Search and Navigation Equipment,
SIC 382 Measuring and Controlling Devises,
SIC 384 Medical Instruments and Supplies,
SIC 385 Ophthalmic Goods,
SIC 386 Photographic Equipment and Supplies,
SIC 387 Watches, Clocks, Watchcases and Parts,
SIC 391 Jewelry, Silverware, and Plated Ware,
SIC 448 Water Transportation of Passengers,
SIC 461 Pipelines, Except Natural Gas,
SIC 472 Passenger Transportation Arrangement,
SIC 481 Telephone Communications,
SIC 483 Radio and Television Broadcasting,
SIC 489 Communications Services, NEC,
SIC 491 Electric Services,
SIC 504 Professional and Commercial Equipment,
SIC 506 Electrical Goods,
SIC 507 Hardware, Plumbing and Heating Equipment,
SIC 513 Apparel, Piece Goods, and Notions, and
SIC 516 Chemicals and Allied Products.
OSHA
solicits comment on the appropriateness of its exemption
procedure, expanding it to SICs 01 through 51, or
alternative approaches that would reduce employer
paperwork burden while retaining needed injury and
illness information. Specifically OSHA requests comment
on whether to expand the partial exemption to some,
all, or none of these industries as classified by
SIC code. Please include any estimates of costs and
benefits associated with these exemptions.
Small
Employer Exemption. The proposed text in this NPRM
also modifies the partial exemption for small employers.
Employers in the construction industry with 10 or
fewer employees, and non-construction employers with
19 or fewer employees will now be exempted from all
requirements except the Reporting of Fatality and
Multiple Hospitalization Incidents (proposed Sec.
1904.12) and Duties of Employers (proposed Sec. 1904.13).
The BLS Annual Survey data show that small employers
generally experience much lower patterns of injuries
and illnesses than medium and larger size firms. However,
the BLS Annual Survey also shows that small employers
in the construction industry account for a significant
percentage of recordable injuries and illnesses. In
1991, over 66,000 recordable cases occurred in construction
firms with 11 to 19 employees. These cases accounted
for 13% of the total recordable cases in the construction
industry. In contrast, in the manufacturing industry,
only 2.4% of the recordable cases were found in firms
with 11 to 19 employees. OSHA believes, given these
numbers and the transient nature of the construction
industry, that employers in the construction industry
with 11 or more employees should be required to keep
OSHA injury and illness records.
Discussion.
The modification of both the small employer and SIC
partial exemptions is designed to ensure that OSHA's
recordkeeping requirements cover those employers with
the highest rates of occupational injuries and illnesses.
These changes shift the recordkeeping responsibilities
from historically low hazard employers to employers
experiencing higher rates of injuries and illnesses.
The net effect of these changes in scope will be the
recording of more injuries and illnesses, but fewer
establishments will be covered by the regulation.
Employers
in the proposed partially exempt industries and small
employers will be required to maintain the OSHA Injury
and Illness Log and Summary (proposed Form 300) when
they are notified that they have been selected for
the BLS Survey of Occupational Injuries and Illnesses
for a given year. Partially exempt employers may also
be required to provide reports related to occupational
safety and health, as required by the proposed Sec.
1904.13. Additionally, these employers will be required
to comply with reporting requirements for Fatality
and Multiple Hospitalization Incidents (proposed Sec.
1904.12).
OSHA
asks for specific input on the following items:
(1)
Should the list of partially exempt industries based
on SIC codes remain the same, be eliminated, or be
expanded? (2) How often should the SIC exemption be
updated using current data? (3) What are other options
for addressing the SIC exemption issues? (4) Should
the small employer partial exemption remain the same,
be eliminated, or be expanded? (5) What would the
cost be (time and money) for keeping the records to
employers currently exempt from the recordkeeping
requirements but proposed to be covered? and (6) What
benefits would accrue from the proposed changes (monetize
or quantify where feasible)? Issue 2. Case recordability
criteria -- injury/illness severity and work-relationship.
Section 8(c)(2) of the Act, which deals with injury
and illness recordkeeping, mandates the maintenance
of accurate records of "work-related deaths,
illnesses and injuries other than minor injuries requiring
only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction
of work or motion, or transfer to another job."
Section 24(a), which deals with statistics, mandates
the collection of statistics on "work injuries
and illnesses which shall include all disabling, serious
or significant injuries and illnesses, whether or
not involving loss of time from work, other than minor
injuries requiring only first aid treatment and which
do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another
job."
The
current recordkeeping system, and the system that
is being proposed, consider conditions work-related
if the work environment either caused or contributed
to the conditions or aggravated a pre-existing condition
to the extent that it becomes recordable. This proposal,
however, includes the exemption of certain activities
to avoid recording cases which OSHA believes add no
useful information to the records for surveillance
purposes. Appendix A. of this proposal describes these
exemptions. For example, employers will consider a
case non work-related if "the case results solely
from normal body movements, i.e. walking unencumbered,
talking, tying a shoe, sneezing, or coughing, provided
the activity does not involve a job-related motion
and the work environment does not contribute to the
injury or illness."
The
proposed system requires the recording of all injuries
and illnesses with the exclusion of minor injuries
and illnesses. OSHA believes that potentially debilitating
illnesses should be recorded as early in their development
as possible, to promote the early recognition and
resolution of problems that could halt the progression
of the illnesses. OSHA believes that the records should
capture most injuries and illnesses, in order to provide
an effective surveillance system for occupational
safety and health program development, but exclude
minor injuries and illnesses.
Within
the occupational safety and health community, there
is a variety of views concerning the interpretation
of these Sections of the Act and the types of cases
the records should capture. The discussion revolves
around two questions: (1) What constitutes work-relationship?
(2) What is the level of injury/illness seriousness
that should be used to determine the proper recording
of a case? OSHA has identified the following three
alternative views on both work-relatedness and seriousness
that differ from the positions OSHA proposes in this
document:
Work-Relatedness
This
issue is especially relevant when dealing with conditions
where the specific event or exposure that caused the
injury or illness cannot be easily identified, or
the condition is the result of both work-related and
non work-related causes (such as off-the-job activities,
aging, prior medical history or work aggravation of
off-the-job injuries). Common examples include lower
back pain, hearing loss, and asthma.
Alternative
1: Exclude Cases With Any Non-Work Linkage
Those
holding this view believe that the work environment
should be the sole, obvious cause of the injury or
illness before it is recorded. They believe that cases
should only be considered work-related if there is
concrete evidence that the causal event or exposure
occurred while the employee was engaged in work activities.
They believe that if there is any evidence of non
work-related factors, the case should be excluded.
Alternative
2: Limit to Predominant Workplace Linkage
Those
holding this view believe that the work environment
should be a major contributor to the injury or illness
for the injury or illness to be considered work-related.
They believe that OSHA's position is too harsh a test,
amounting to zero tolerance for conditions where work
is a minor contributor and non-work factors are the
predominant cause of the injury or illness. Those
holding this view believe that OSHA's current and
proposed criteria for work-relationship cause companies
to over-record cases, artificially inflate and overstate
workplace injuries and illnesses, undermine the credibility
of the system, and have led to general resistance
to the recordkeeping system. Those holding this view
believe the criteria should be modified so that a
case would be considered work-related only if work
activity(s) or exposure(s) causes or is the predominate
contributor to the condition.
Some
of those holding this view have proposed an alternative
that would allow a documented determination by a health
care provider to decide work-relationship for the
following types of cases: hernias, cardiovascular
disorders, respiratory conditions, hearing loss, skin
disorders or musculoskeletal disorders such as back
pain, tendinitis and carpal tunnel syndrome. For this
purpose, a check list has been suggested, as follows.
(note: In the absence of evaluation by a health care
provider, the case would be considered work-related
if the work environment caused, contributed to or
aggravated the condition in any way.)
1.
Injury/illness type
______Hernia
______Musculoskeletal disorder
______back pain
______tendinitis
______other________________
______Respiratory condition
______Skin disorder
______Non-occupational disease
2.
How was injury/illness discovered
______During
occupational medical visit
______Routine physical examination
______Non-occupational medical visit
______Other: ________________
3. Applicable medical history
---------------------------------
---------------------------------
---------------------------------
4.
Off-the-job activities which may have contributed
---------------------------------
---------------------------------
---------------------------------
5.
Work relationship evaluation
a.
Injury/illness characteristics
______
Degenerative condition due to aging or non-occupational
disease
______ Congenital condition
______ Aggravation of on-the-job injury or illness
b.
Possible work contribution
______
Workplace event or exposure? ______ yes ______ no
______ Workplace aggravation? ______ yes ______ no
______ Condition consistent with workplace event or
exposure? ______ yes ______ no
______ Condition would have occurred without regard
to workplace duties or exposures? ______ yes ______
no
c. Exposure factors for this type of injury/illness
On-the-job
Comments Off-the-job Comments
_____High _____High
_____Medium _____Medium
_____Low _____Low
_____Not sure _____Not sure
6.
Work relationship determination
______
Work-related. On-the-job exposure factors more predominant
than off-the-job exposure factors.
______
Not work-related. Off-the-job factors more predominant
than on-the-job exposure factors.
______
Not sure. Assume work-relationship.
Alternative
3: Include Cases With Any Workplace Linkage
Those
holding this view believe that injuries and illnesses
should be recorded if the worker ever experienced
a workplace event or exposure that had any possibility
of playing a role in the case. For example, a cancer
case, where the worker had at some time in his or
her career worked with a carcinogenic substance, would
be considered work-related, even though there is no
positive link between the case and a workplace exposure.
Seriousness
The
concept of seriousness is particularly relevant when
dealing with conditions where the worker is not obviously
impaired, but is experiencing some subjective symptom
(pain, dizziness, etc.) or has an abnormal health
test result. For example, a blood test may indicate
that a worker has a relatively high level of cadmium
in his or her system, but the worker is not experiencing
any symptoms that adversely affect either work or
lifestyle. The worker has an abnormality, but should
it be considered an injury or illness?
Alternative
1: Days Away From Work or Death
Proponents
of this view believe that employers should record
only those cases that result in days away from work
or death. They believe that this will result in the
most meaningful and accurate information (because
fatalities and days-away-from-work cases are hard
to "cover up" and they are unquestionably
serious). They also believe that this approach will
minimize the burden on employers and focus safety
and health efforts on the cases with the greatest
impact on both employers and workers.
Alternative
2: Days Away From Work, Impairment, or Death
Proponents
of this view agree with across-the-board application
of the basic criteria mentioned in Section 8 of the
Act, (days away, medical treatment beyond first aid,
etc.) but believe the purpose of proposed Mandatory
Appendix B should be limited to capturing "serious"
cases which may be "missed" because they
do not meet the basic criteria. Such cases would include
disorders where no lost time occurs, or where medical
treatment is not provided at the time the case is
diagnosed or discovered because medical treatment
would not help, but the case is serious nonetheless.
Examples include the current criteria for recording
hearing loss (25dB), asbestosis, mesothelioma, silicosis,
byssinosis and other similarly serious work-related
diseases.
Potential
guiding language for recording cases missed by the
basic criteria would be "any work-related condition
that results in, or is likely to result in, a physical
or mental impairment that substantially limits a major
life activity." In addition to stating such guiding
language in, and as a basis for a Mandatory Appendix,
clarifying examples of specific known to be serious
conditions such as, but not limited to, those mentioned
in the paragraph above could be listed.
Those
who support this approach believe it meets the "disabling,
serious, or significant" criteria prescribed
in Section 24(a) of the Act and that these criteria
must be considered carefully, especially if OSHA intends
to collect OSHA Logs and use the data for inspection
targeting and intervention purposes. Supporters of
this approach also believe it will provide the most
meaningful data to employers for improving workplace
safety and health efforts by helping to allocate resources
for preventing injuries and illnesses which are truly
serious.
Alternative
3: No Limitations on Seriousness
Proponents
of this view believe that all work-related injuries
and illnesses should be recorded. They interpret the
Act to require the recording of all work-related illnesses,
no matter how minor or how short lived they may be,
and the recording of all non-minor injuries. They
believe the recording criteria should be expanded
to include all signs and symptoms experienced by workers,
and perhaps even potentially hazardous exposure incidents
and near misses. They believe that this alternative
provides the employer and the workers at the worksite
with the most effective surveillance tool that will
lead to the most complete injury and illness prevention
efforts. Proponents of this view have provided alternative
language for recording cases where "signs, symptoms,
and/or laboratory abnormalities last longer than 48
hours (either persistently or intermittently)"
excluding minor injuries (minor injuries are minor
scratches, abrasions, bruises and first degree burns)."
Implications
The
issues of work-relationship and case severity have
major implications for all of the parties that use
the injury and illness records, including employers,
workers and the government. If the criteria are too
inclusive, they may appear to overstate the injury
and illness experience, undermine the credibility
of the system, and fail to focus safety and health
efforts on the most serious workplace hazards. If
they are too exclusive, they may appear to understate
the injury and illness experience, undermine the credibility
of the system, and fail to reflect hazardous conditions
that require attention. OSHA believes that the OSHA
proposal in the NPRM is compatible with the language
and intent of the Act, and provides the best way to
resolve these issues. OSHA welcomes comment, ideas,
and alternative suggestions from the public concerning
these issues and the alternatives presented above.
Specifically,
OSHA requests input on A) The level of severity and
criteria for establishing work-relationship and determining
which cases are entered into the records; B) How "significant/serious/disabling"
should be defined to result in consistent recording
practices and data; C) How work contribution can be
objectively measured for such a purpose; D) Does the
checklist shown above meet these objectives? F) Should
work-relationship be established only where work is
the predominant causal factor? G) Should work-relationship
be established if work was something less than the
predominant cause? or H) If work contributed more
than 50% to the injury or illness? 25%? 10%? J) How
could any of these percentages be measured/determined?
Issue 3. The definitions of first aid and medical
treatment. The distinction between first aid and medical
treatment is a critical component in determining whether
to record a work-related injury or illness. One criterion
in the proposed regulatory text requires any work-related
injury or illness involving medical treatment beyond
first aid to be recorded. A case which involves first
aid only (and does not meet any of the other recording
criteria) is not recordable. The intent of this distinction
is to capture information on injuries and illnesses
which are significant and would provide valuable information
for safety and health analysis while excluding minor
cases which would not provide necessary or useful
information for analysis.
The
current recordkeeping system defines first aid as
any one-time treatment, and any follow-up visit for
the purpose of observation, of minor scratches, cuts,
burns, and splinters, and so forth which do not ordinarily
require medical care. Medical treatment is defined
to include any treatment other than first aid treatment
administered to injured employees. The definition
focuses on the type of treatment given and not on
the person administering the treatment (e.g. physician,
registered health professional, etc.). These definitions
are further clarified within the Recordkeeping Guidelines
for Occupational Injuries and Illnesses by lists of
examples of treatments which are considered either
medical treatment or first aid. These lists are not
comprehensive and confusion exists concerning the
classification of unlisted treatments.
This
proposal attempts to clarify the distinction between
first aid and medical treatment by defining the terms
in a way that will make them mutually exclusive. The
proposed regulatory text defines first aid with a
finite list of treatments. Medical treatment is defined
as any treatment other than those listed in the first
aid definition.
"First
aid" means the following treatments for work-related
injuries and illnesses:
1.
Visit(s) to a health care provider limited to observation
2. Diagnostic procedures, including the use of prescription
medications solely for diagnostic purposes 3. Use
of nonprescription medications, including antiseptics
4. Simple administration of oxygen 5. Administration
of tetanus/diphtheria shot(s) or booster(s) 6. Cleaning,
flushing or soaking wounds on skin surface 7. Use
of wound coverings such as bandages, gauze pads, etc.
8. Use of any hot/cold therapy (e.g. compresses, soaking,
whirlpools non-prescription skin creams/lotions for
local relief, etc.) except for musculoskeletal disorders
(See Mandatory Appendix B) 9. Use of any totally non-rigid,
non-immobilizing means of support (e.g. elastic bandages)
10. Drilling of a nail to relieve pressure for subungual
hematoma 11. Use of eye patches 12. Removal of foreign
bodies not embedded in the eye if only irrigation
or removal with a cotton swab is required 13. Removal
of splinters or foreign material from areas other
than the eyes by irrigation, tweezers, cotton swabs
or other simple means
OSHA
asks for comment on the following issues:
(A)
Should any treatments on the proposed first aid list
be excluded and should any treatments be added? (B)
Should a list of medical treatments also be provided?
Which treatments? (C) Should simple administration
of oxygen be defined to exclude more severe procedures
such as Intermittent Positive Pressure Breathing (IPPB)?
If so, how? Issue 4. The definition of restricted
work. The Keystone Report stated that the recording
of restricted work is perhaps the least understood
and least accepted concept in the recordkeeping system.
Recording cases involving restricted work activity
is important because injured or ill employees are
unable either to perform all of their normal duties
or perform a full day's work. The concept of restricted
work activity was included in the Act due to concern
that some employers might try to conceal significant
injuries and illnesses by temporarily assigning injured
or ill workers to other jobs with reduced requirements.
This concern still exists today.
The
difficulty in determining restricted work lies in
the need to determine the employee's "normal
duties". In the past, OSHA has broadly defined
the employee's normal duties to include any work activity
included in the employee's job description, even if
the activity is performed infrequently. According
to the Keystone Report, this definition is problematic
because "(1) few in industry understand the scope
of this interpretation; (2) many who do understand
it disagree with it; and (3) to maximize productivity,
workers are increasingly assigned a wider range of
tasks, making it increasingly difficult to measure
and/or verify the performance of these greatly divergent
and infrequent duties." (ex. 5, p. 17) The Keystone
Report recommended that restricted work activity should
be recorded if the employee is 1) unable to perform
the task he/she was engaged in at the time of injury
or onset of illness or 2) unable to perform any activity
that he/she would have performed during the week.
OSHA believes that the first criterion will focus
on the hazardous tasks that lead to serious injuries
and illnesses. OSHA believes, however, that the second
criterion is not easily defined and could lead to
the recording of inconsistent data. This criterion
has been narrowed in the proposed text of the regulation
to include activities the employee performed or was
expected to perform on the day of injury or onset
of illness. OSHA believes these activities will be
well known and understood and use of this criterion
will lead to greater consistency in the recording
of these more severe work-related injuries and illnesses.
This
proposal also eliminates the requirement for employers
to count the days of restricted work activity. The
employer will be required to place a check in the
restricted work column if the case involved restricted
work activity but not days away from work.
OSHA
asks for input on whether the proposed language is
too limiting or too broad, on alternative ways to
define restricted work activity and/or the usual duties
of an employee, along with suggested ways to improve
employers' understanding and acceptance of the concept
of restricted work activity. OSHA's goal is to have
employers consistently record cases that involve restricted
work by providing a concept which is widely accepted
and easy to interpret.
OSHA
asks for input on the following questions: (A) Will
the elimination of the restricted work activity day
count provide an incentive for employers to temporarily
assign injured or ill workers to jobs with little
or no productive value to avoid recording a case as
one involving days away from work? (B) Will the inclusion
of question 13 on the proposed OSHA Form 301, "If
the case involved days away from work or restricted
work activity, enter the date the employee returned
to work at full capacity", help to reduce such
an incentive? Issue 5. The proper recording of musculoskeletal
disorders (MSDs). Over the last 10 years, there has
been an increased awareness of work-related disorders
associated with ergonomic hazards, i.e. hazards associated
with lifting, repeated motion, and repetitive strain
and stress on the musculoskeletal systems of workers.
OSHA labels these injuries and illnesses, which result
from ergonomic hazards, "musculoskeletal disorders"
(MSDs). MSDs do not include broken bones, chipped
teeth, contusions or sprains/strains resulting from
falls or being struck.
Although
MSDs have always been recordable, OSHA and BLS had
not published any specific guidance on how to record
them until 1986. The 1986 Recordkeeping Guidelines
provided some limited specific guidance by requiring
all back cases to be evaluated as injuries using the
general injury criteria, and to record carpal tunnel
syndrome as an illness. The 1986 Guidelines did not
provide specific directions on which criteria to use
for recording other types of musculoskeletal disorders.
Historically,
for recording purposes, disorders caused by repeated
or cumulative trauma were covered by the general illness
criteria because these disorders are caused by prolonged
exposure to various risk factors, rather than being
caused by a single instantaneous event. The existing
definition of occupational illness (in place since
1971) is very inclusive: "Any work related abnormal
condition or disorder (other than an occupational
injury)". (1986 Recordkeeping Guidelines, P 39)
Thus, the current criteria for recording illnesses
requires the employer to record each and every occupational
illness, including MSDs.
Theoretically,
all musculoskeletal disorders, even the less severe
cases which do not meet the recording criteria for
injuries, would be recordable as a result of applying
the general illness recording criteria. Despite their
recordability, OSHA observed that very few, if any,
of these disorders were being recorded on employers'
OSHA Logs. As a result, OSHA developed an enforcement
policy limiting the issuance of citations and penalties
for unrecorded MSDs to those cases which involve:
*
a clinical diagnosis by a health care provider; or
* at least one physical finding, (i.e., an objective
symptom such as redness or swelling); or * a subjective
symptom, such as pain or numbness, coupled with either
medical treatment or lost workdays, (i.e., days away
from work and/or days of restricted work activity).
In
1990, OSHA published specific criteria for the proper
recording of MSDs in the Ergonomics Program Management
Guidelines For Meatpacking Plants (Meatpacking Guideline).
These criteria have been the basis for all of OSHA's
interpretations involving the proper recording of
musculoskeletal disorders to the upper extremities
(shoulder, arms, wrist and hands) since that time.
Even
though the specific criteria in the Meatpacking Guidelines
defined fewer recordable cases than the general illness
criteria, the number of recorded cases has increased
dramatically. While OSHA believes that these types
of disorders are increasing in number, OSHA believes
that the increase in recorded MSD cases is also the
result of OSHA providing employers with specific guidance
on the subject, in conjunction with enforcement of
the requirements. Compliance with the recordkeeping
requirements improved substantially and the resulting
data and statistics have reflected that improvement.
One
purpose of this proposed revision of 29 CFR Part 1904
is to consolidate in the regulation various criteria,
guidelines and interpretations policies which are
currently found in a number of different documents.
Another purpose is to simplify the recordkeeping requirements,
in order to make the system more "user friendly"
and to encourage more accurate and consistent recording
of injuries and illnesses. Consistent with these purposes,
OSHA is proposing to incorporate the criteria for
recording MSDs found in the Meatpacking Guidelines
in mandatory Appendix B of the proposed regulation,
and to simplify the system by applying those criteria
equally to cases involving the upper extremities,
the back and the lower extremities.
The
criteria in proposed Mandatory Appendix B require
employers to record new, work-related musculoskeletal
disorders: (1) whenever they are diagnosed by a health
care provider, or (2) if the employee has objective
findings (redness indicative of inflammation, deformity,
swelling, etc.). When either of these criteria, or
when any of the general criteria for recording illnesses
and injuries in Sec. 1904.4(b) (i.e. death, loss of
consciousness, days away from work, restricted work
activity, job transfer, or medical treatment beyond
first aid) is met, the case is required to be recorded
on the OSHA Form 300. OSHA's proposal represents a
continuation of the current recording policy, and
is intended to ensure the early recognition and recording
of musculoskeletal disorders so appropriate actions
may be taken.
The
current recording of these cases is also dependent
on the definitions of first aid, medical treatment
and restricted work. Because OSHA is proposing to
change those definitions, the recording of musculoskeletal
disorders will be affected. OSHA recognizes that hot
and cold treatments for most injury and illness conditions
should be considered first aid treatments, as indicated
in the proposed definition of first aid. However,
NIOSH (NIOSH, Cumulative trauma disorders: A manual
for musculoskeletal diseases of the upper limbs, Taylor
and Francis, 1988, p. 125) and other recognized authorities
(Hales & Bertsche, "Management of Upper Extremity
Cumulative Trauma Disorders", AAOHN Journal,
March, 1992, Vol. 40, No. 3; Nanneman, D., "Thermal
modalities: Heat and cold: Review of physiological
effects with clinical applications", AAOHN Journal,
1991, Vol. 39, No. 2) recognize hot and cold treatments
as therapeutic modalities in the conservative, early
treatment of MSDs. Because these treatments may cause
negative effects if not properly administered, OSHA
is proposing that two or more hot and cold treatments
be considered medical treatment for MSDs only when
directed by a health care professional.
There
is a concern that the proposed criteria will result
in a situation where workers could be working with
significant pain for an extended period of time, without
their case being entered into the records. OSHA has
been asked to consider an additional recording criterion
for these cases: record when the employee reports
symptoms (pain, tingling, numbness, etc.) persisting
for at least 7 calendar days from the date of onset.
OSHA asks for input on this criterion.
OSHA
recognizes that its proposed recording policy does
not provide a mechanism for excluding cases that involve
short term job transfers for minor soreness that commonly
occurs to newly hired employees or employees on rehabilitation
assignments during a "break in" stage. OSHA
asks for input on whether a method for excluding these
cases should be developed? If so, what method should
be used? Issue 6. The reluctance of some employers
to enter cases into the records. For a variety of
reasons, some employers have historically shown a
reluctance to enter injuries and illnesses into the
OSHA records.
Some
employers mistakenly believe that recording a case
implies fault on the part of the employer. Some fail
to recognize that the requirements of OSHA recordkeeping
have nothing to do with workers' compensation insurance
or any other system outside of the OSHA requirements.
While many OSHA recordable injuries and illnesses
may be compensable under an insurance program, others
are not. Furthermore, many employers use a workers'
compensation or insurance form in lieu of the OSHA
supplementary record. However, some employers who
use these forms in lieu of the OSHA supplementary
record mistakenly believe that completing the forms
for OSHA recordkeeping purposes automatically makes
the case compensable. While reducing the paperwork
burden on employers, perhaps this equivalency option
perpetuates this misunderstanding and should be eliminated.
Many
companies use the information from the OSHA records
to establish "accountability systems" for
management as well as their safety and health professionals.
Often these systems are linked to performance evaluations
of the affected individuals. These performance evaluations
may be used to help determine bonuses, promotions,
or compensation levels. Affected employees may be
discouraged from fully and accurately recording injuries
and illnesses in the OSHA records when they may be,
or may perceive to be, personally penalized for complying
with the OSHA recordkeeping requirements.
The
OSHA recordkeeping proposal includes several items
intended to reduce the effects of these potential
problems on the accuracy of the records. Certification
of the accuracy and completeness of the OSHA Log by
a responsible company official and disclaimers of
a relationship between OSHA injury and illness recordkeeping
and implications of fault for insurance systems are
included in the regulatory text and on the proposed
forms. The "employer use column" can be
utilized by companies to indicate those cases that
the firm does not wish to include in their internal
safety statistics.
OSHA
asks for input on (A) ways to encourage accurate injury
and illness records, (B) how the confusion between
OSHA recordkeeping and workers' compensation/insurance
requirements can be minimized, and (C) how the adverse
effect of accountability systems on the OSHA records
can be reduced.
Issue
7. Improving employee involvement. The Keystone report
stated that overall workplace safety and health would
benefit if the information in the injury and illness
records were more widely known. The report noted that
employee involvement and awareness are minimal for
three reasons: (1) Lack of knowledge that access is
permitted, (2) fear of employer reprisal, and (3)
employee apathy. The Keystone report concluded that
employee notification could improve employee involvement
in recordkeeping and enhance the quality of the data,
increase employees' knowledge of hazards, promote
better cooperation between employers and employees
in reducing hazards, and contribute to safer, more
healthful workplaces.
OSHA
asks for input on (A) whether employees should be
notified that their individual injuries and illnesses
have been entered into the records, (B) the possible
mechanisms employers could use to meet such a requirement
and the degree of flexibility employers should be
given, (C) any other ideas on methods for improving
employee involvement in the injury and illness recordkeeping
system, and (D) cost (including burden) and benefit
information on each alternative.
Issue
8. Access to the OSHA forms and the privacy of injured
or ill employees. The current regulation and the proposed
regulatory text both require that employees, former
employees, and their designated representatives have
access to the entire OSHA injury and illness log,
which includes personal identifiers. Furthermore,
the current regulation does not provide employees
or their designated representatives access to the
OSHA injury and illness supplementary forms while
the proposed regulatory text provides employees or
representatives designated by employees access to
all OSHA injury and illness supplementary records
(proposed OSHA Form 301, Incident Record) of the establishment.
OSHA's
historical practice of allowing employee access to
all of the information on the log permits employees
and their designated representatives to be totally
informed about the employer's recordkeeping practices,
and the occupational injuries and illnesses recorded
in the workplace. However, this total accessibility
may infringe on an individual employee's privacy interest.
At the same time, the need to access individuals'
Incident Records to adequately evaluate the safety
and health environment of the establishment has been
expressed.
These
two interests -- the privacy interests of the individual
employee versus the interest in access to health and
safety information concerning one's own workplace
-- are potentially at odds with one another. For injury
and illness recordkeeping purposes, OSHA has taken
the position that an employee's interest in access
to health and safety information on the OSHA forms
concerning one's own workplace carries greater weight
than an individual's right to privacy. More complete
access to the detailed injury and illness records
has the potential for increasing employee involvement
in workplace safety and health programs and therefore
has the potential for improving working conditions.
Analysis of injury and illness data provides a wealth
of information for injury and illness prevention programs.
Analyses by workers, in addition to analyses by the
employer, lead to the potential of developing methods
to diminish workplace hazards through additional or
different perspectives.
OSHA
is considering alternatives to the existing and proposed
regulatory text to address the conflict between the
privacy interests of the individual and the interest
in total access to health and safety information concerning
one's own workplace. One alternative to the regulatory
text would be to require the removal of personal identifiers
for only certain types of cases that might have higher
privacy concerns than others.
The
alternative described above raises additional questions
to which the public is invited to respond. What other
pieces of information, if any, on the currently proposed
forms (proposed Forms 300 and 301 -- see section IV
of this preamble) ought to be considered personal
identifiers and included on the side of the form which
is not disclosed once it is folded over? If only certain
types of cases should be shielded, which types of
cases ought to be considered "confidential"
and subject to having the personal identifiers removed?
Should a coding system be used for these cases to
enable some people, but not others, to have access
to the entry information, and if so, what type of
system? Who should have access to the personal identifier
information? Should the right to access an individual's
Incident Record be limited to that individual? It
is OSHA's intention to make the forms readily accessible
to employees and employee representatives who can
use the information to affect safety and health conditions
at the workplace. OSHA does not intend to provide
access to the general public. OSHA asks for input
on possible methodologies for providing easy access
to workers while restricting access to the general
public. OSHA also asks for input on the possible benefits
and costs of making the information accessible, and
any negative results that could occur from such access.
Specifically, for employers who use State workers
compensation, insurance, or other forms as equivalents
to the OSHA form, are there data elements contained
on those forms which could not be released to employees
or their designated representatives? If so, what are
those data elements? How would this affect the employer's
ability to use equivalent forms? OSHA invites the
public to suggest other options or alternative regulatory
language which would address this issue of confidentiality
and access to information. Please include any information
on costs and benefits that will result from these
alternatives, including any ideas on how to quantify
those costs and benefits.
Issue
9. The development of computer software to assist
employers in the task of recordkeeping. To make injury
and illness recordkeeping easier for employers, OSHA
is considering the development of recordkeeping computer
software. Once developed, the program could have the
following minimum features:
(a)
employ a decision-making logic for determining if
an injury or illness is recordable, and if so the
proper classification, and include questions to elicit
the necessary information to complete and generate
the OSHA required records;
(b)
automatic form(s) generation;
(c)
the ability to assist the employer in evaluating the
entered data through several preset analytical tools
(e.g. tables, charts, etc.);
(d)
contain a tutorial section to assist employers in
training employees in proper recordkeeping procedures;
(e)
be in the public domain and/or be available at cost
to the public. OSHA is requesting comments on all
facets of this approach toward development of software.
In addition, OSHA would like to know what percentage
of employers have computers to assist them in their
business? What percentage of employers currently use
computers for tracking employee-related information
(payroll, timekeeping, etc.)? Should the distribution
be through the Government, public domain shareware
distribution, or other channels? Should OSHA develop
the software or only provide specifications of its
requirements?
IV.
Proposed OSHA Forms
In
conjunction with this proposed rulemaking, the OSHA
recordkeeping forms are also being modified. OSHA
is continuing to try to reduce the employer's paperwork
burden through these modifications and reducing the
number of duplicate questions on the forms. At this
point, some duplicate questions remain and are needed
for each form to "stand alone". OSHA believes
if the duplication were reduced further, employers
would be required to refer frequently to both forms
at the same time, which would add additional burden.
OSHA requests comment on any of these modifications,
the remaining duplications, or any other related issues
to the proposed forms.
The
forms are being included in this preamble for informational
purposes.
The
OSHA 200 Log will be replaced with the OSHA 300 Log
which includes reformatted columns and an additional
column for the employer's use. The proposed elimination
of the requirement that employers distinguish between
injuries and illnesses in order to record a case would
eliminate the need for separate groups of columns
for injuries and illnesses on the Log. The proposed
elimination of the requirement to count days of restricted
work activity also eliminates the need for the restricted
day count columns found on the OSHA 200 Log. The result
is a simplified form that fits on standard size paper
which can easily be copied and kept on a personal
computer. This also results in space to create an
employer use column which can be utilized by employers
to tailor the Log to meet the needs of their particular
safety and health program. For example, this column
could be used by employers to enter causation, or
injury and illness codes, or other information useful
to the company. This employer use column may provide
employers with additional flexibility, reducing their
need to maintain multiple sets of records for various
purposes.
Cases
that end in permanent work restrictions, job transfer,
or termination of employment will be noted by placing
an asterisk next to the employee's name. This information
could provide employers, employees, inspectors and
researchers with another measure of severity for injuries
and illnesses. A statement will be included on the
summary portion informing employees, former employees,
and their designated representatives of their right
to access the entire Log.
A
disclaimer will be included on the Log which states
"Cases listed below are not necessarily eligible
for Workers' Compensation or other insurance. Listing
a case below does not necessarily mean that the employer
or worker was at fault or that an OSHA standard was
violated". The intent of this disclaimer is to
dispel the mistaken belief that recording a case on
the Log affects workers' compensation or establishes
a finding of fault.
Some
stakeholders have expressed the need for a column
containing information on cases involving musculoskeletal
disorders such as low back pain, tendinitis, and carpal
tunnel syndrome. OSHA solicits comment on the inclusion
of an MSD column on the form.
The
Supplementary Record of Occupational Injuries and
Illnesses (OSHA No.101) will be replaced with the
OSHA Injury and Illness Incident Record (OSHA Form
301) in order to collect more useful information.
Additional questions will be added to gather data
on the events leading up to the injury or illness;
on the equipment, material, or substance involved;
and on the activity taking place when the injury or
illness occurred. An employer use section will be
added to provide the employer with space to record
any additional information that is desired. A statement
will be included on the form notifying employees,
former employees, and their designated representatives
of their right to access all OSHA injury and illness
records of the establishment.
While
the new OSHA 300 Log presents information on injuries
and illnesses in a condensed format, an Incident Record
provides more detailed information about the affected
worker, the injury or illness, workplace factors associated
with the accident, and a brief description of how
the injury or illness occurred.
Currently,
many employers use their insurance or State workers'
compensation forms in place of the supplementary record.
This reduces the burden on employers by allowing them
to fill out a single form for multiple purposes. Several
States have notified OSHA that they intend to modify
their forms to qualify as equivalents to the OSHA
form. OSHA anticipates that many other States will
also modify their forms to qualify as equivalents
to the OSHA form so employers may continue to have
the benefit of interchangeable forms. OSHA is currently
working with the International Association of Industrial
Accident Boards and Commissions (IAIABC) to standardize
the recording forms for occupational injuries and
illnesses.
OSHA
also requests comment on the concept of a single form
which would meet all of the informational needs of
the recordkeeping system. What items would be included?
What format would be used? How would the use of a
single form, as opposed to two forms, affect the employers
ability to use State Workers Compensation forms as
equivalents to the OSHA form? Information concerning
the establishment name and address and the employee's
social security number, regular job title, and the
department in which the injured person is regularly
employed will no longer be requested.
OSHA
Injury and Illness Log and Summary [PDF - 76k]
General
Instructions OSHA Form 300
The
OSHA regulation, Recording and reporting Occupational
Injuries and Illnesses (29 CFR Part 1904) provides
comprehensive instructions and definitions necessary
to find out if you need to keep these records, for
completing the forms, as well as other detailed recording
and reporting requirements. The instructions on this
form are intended to supplement the instructions in
the regulation. To obtain the regulation and related
guidance, contact your local OSHA office.
The
occupational Safety and Health Act of 1970 requires
most employers to maintain injury and illness records.
One part of the requirements is to keep an OSHA Injury
and illness Log and Summary. In order to fulfill this
requirement, the employer may use this form or an
equivalent form.
Work
Relationship
A
case is considered work related if an event in the
work environment either causes or contributes to an
injury or illness or aggravates a preexisting condition.
Recordable
Cases
Work
related injuries or illnesses are to be recorded on
this form within seven calendar days of receiving
information that a recordable injury or illness has
occurred. An injury or illness is recordable if it
results in death, days away from work, restricted
work activity, job transfer, loss of consciousness,
medical treatment beyond first aid, or is a condition
listed in Mandatory Appendix B of 29 CFR Part 1904.
Restricted
work activity means the employee is not capable of
performing at full capacity for a full shift: (1)
The task he or she was engaged in at the time of injury
or onset of illness (the task includes all facets
of the assignment the employee was performing); OR
(2) His or her daily work activity (daily work activity
includes all assignments the employee was expected
to perform on the day of injury or onset of illness).
Medical
treatment includes any medical care or treatment beyond
first aid that is provided, or should have been provided.
The distinction between medical treatment and first
aid is based solely on the treatment involved, not
the person providing the treatment. Health care professionals
may provide first aid when non-professionals may provide
medical treatment. First aid is defined as the following
treatments: 1. Visit(s) to a health care provider
limited to observation 2. Diagnostic procedures, including
the use of prescription medications solely for diagnostic
purposes (e.g. eye drops to dilate pupils) 3. Use
of nonprescription medications, including antiseptics
4. Simple administration of oxygen 5. Administration
of tetanus or diphtheria shot(s)or booster(s) 6. Cleaning,
flushing or soaking wounds on skin surface 7. Use
of wound coverings such as bandages, gauze pads, etc.
8. Use of any hot/cold therapy (e.g. compresses, soaking,
whirlpools, non-prescription skin creams/lotions for
local relief, etc.) except for musculoskeletal disorders
(See Mandatory Appendix b) 9. Use of any totally non-rigid,
non-immoblizing means of support (e.g, elastic bandages)
10. Drilling of a nail to relieve pressure for subungual
hematoma 11. Use of eye patches 12. Removal of foreign
bodies not embedded in the eye if only irrigation
or removal with a cotton swab is required 13. Removal
of splinters or foreign material from areas other
than the eyes by irrigation, tweezers, cotton swabs
or other simple means
Any
treatment not on this list is considered medical treatment.
See
Mandatory Appendix B of 29 CFR Part 1904 for a complete
listing of additional recordable conditions.
Specific
Instructions
Employer
Identification
Industry
Description: Enter a brief description of the establishment's
primary activity, determined by the principal product
manufactured or sold, or service rendered. For example,
wholesale trade of enamel paints or automotive body
shop. Also enter the Standard Industrial Classification
(SIC) number if known. For example, SIC 7532.
Employee
Identification
A.
Enter the employee's last name, first name and middle
initial.
Case
Identification
B.
Enter unique numbers. For example: 1991-1, 1991-2,
... or 1, 2, ... This number must also be entered
on the corresponding Incident Record (OSHA Form 301)
C.
For injuries, enter the date (month/day) the employee
was injured. For illnesses, enter the date the illness
was recognized. If there is no definite date of recognition,
enter the date the illness was clinically diagnosed.
D.
Enter the department and location where the event
occurred. For example: maintenance tool room. If the
event did not occur at the employer's establishment,
enter the specific address or location. For example:
client's office at 452 Monroe Street, Washington,
DC.
E.
Enter the employee's regular job title, not the specific
task he/she was performing at the time of the injury
or illness.
Case
Description
F.
Enter a detailed description of the injury or illness,
indicating the part(s) of the body affected and the
object/substance which directly injured or made the
employee ill. For example: cut left index finger with
hack saw or carpal tunnel syndrome of the left wrist
from using price scanning equipment.
Case
Classification Each recordable case must only have
one entry in either column G, H. or I.
G.
Enter a check if the case resulted in death.
H.
Enter a check if the case did result in days away
from work. Enter the total number of such days. Enter
only whole numbers. Do not count the day the employee
was injured or the day the employee become ill.
L.
Enter a check in the appropriate box if the case resulted
in restricted work activity or met the other recording
criteria but did not involve days away form work.
NOTE:
If a case ends in a permanent work restriction/job
transfer, or the employee is terminated after the
injury or illness occurred, an asterisk must be entered
next to the case number in column b. If the description
or outcome of a case changes, remove the original
entry, and enter the new information to reflect the
more severe consequence. For example: if a case is
originally recorded without days away and later results
in days away from work, remove or line out the entry
in column I, and enter the information in column H.
Other
J.
This column is optional and reserved for employer
use. The employer may enter additional information,
such as whether the case was compensable under Workers'
Compensation, etc.
Year
End Totals
To
prepare the summary, total the number of checks and
the number of days for columns G, H, and I for the
calendar year. These totals are entered in the "Year-end
totals" line of this section. If there were no
recordable injuries or illnesses, enter zeroes in
the spaces provided.
Annual
average number of employees: Enter the average number
of employees (full and part-time) who worked during
the calendar year. Annual average employment should
be computed by summing the employment from all pay
periods during the year and then dividing the sum
by the total number of pay periods, including periods
with no employment.
Total
hours worked by all employees: Enter the total number
of hours actually worked by all employees during the
calendar year. If hours worked are not separately
maintained, please enter an estimate based upon total
number of employees and average hours worked.
Certified
by: An owner of the company, an officer of the corporation,
the highest ranking company official working at the
establishment, or his or her supervisor must sign
and enter title, phone number and the date of completion.
OMB
Disclosure Statement
Public
reporting burden for this collection of information
is estimated to vary from 4 minutes to 30 minutes
per line entry with an average of 10 minutes per line
entry including time for reviewing instruction, searching
existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection
of information. It is estimated the average firm will
require 1 hour and 56 minutes to complete the entire
form. If you have any comments regarding this estimate
or any other aspect of this collection information,
including suggestions for reducing this burden, please
send them to the OSHA Office of Statistics and/or
the Office of IRM Policy, Department of Labor, 200
Constitution Avenue, NW, Washington, DC 20210. Do
not send the completed form to either of these offices.
OSHA
Injury and Illness Incident Record [PDF - 71k]
General
Instructions OSHA Form 301
The
OSHA regulation, Recording and Reporting Occupational
Injuries and Illnesses (29 CFR Part 1904) provides
comprehensive instructions and definitions necessary
to find out if you need to keep these records, for
completing the forms, as well as other detailed recording
and reporting requirements. The instructions on this
form are intended to supplement the instructions in
the regulation. To obtain the regulation and related
guidance, contact your local OSHA office.
Establishments
which must maintain the OSHA injury and Illness Log
and Summary (OSHA Form 300) must also complete this
form for each case required to be recorded on the
OSHA Form 300. This form must be completed within
seven calendar days of receiving information that
a recordable injury or illness has occurred. Some
state workers' compensation, insurance or other reports
may be acceptable substitutes. Any substitute form
must contain all of the information requested on this
form, with questions 16 through 18 being identical
in content and order presented to be considered an
equivalent. If the alternate form does not contain
all of the required information, you must attach an
OSHA Form 301 to it and provide all missing information.
The
records must be kept for three years following the
end of the calendar year to which they relate. For
example, a 1990 incident record must be saved until
January, 1994.
Specific
Instructions
Case
Number
Enter
the corresponding case number from the OSHA Form 300.
Employee
5
Enter the date the employee was hired by the employer.
Health
Care Provider
6
Enter name of primary health care provider (e.g, physician,
nurse, etc.) who rendered medical treatment.
7
If the employee received medical treatment off-site,
indicate: Health care facility name and address.
8
If employee was treated at a hospital, check whether
he/she was admitted as an in-patient. Check no if
the employee received emergency room treatment only.
Employer
Use (Optional)
This
section is optional. The employer may enter additional
information, such as whether the case was compensable
under Workers' Compensation, etc.
Injury
or Illness
Each
data element in this section should provide specific
information about the event which resulted in the
injury or illness and the subsequent outcome. Include
as much detail as possible.
9
Describe the injury or illness. Be specific, for example:
Two inch laceration, carpel tunnel syndrome, or 15
dB shift in hearing threshold.
10
Enter the body part(s) affected. Be specific, for
example: Right index finger, left wrist, right ear.
11
Date of injury or illness (month/day/year): For injuries,
enter the date the employee was injured. For illness,
enter the date the illness was recognized. If there
is no definite date of recognition, enter the date
of the clinical diagnosis.
12
If the employee died, enter the date of death (month/day/year).
13
If the case involved one or more days away from work
beyond the day of injury or the diagnosis of an illness,
or restricted work activity, enter the date the employee
returned to work at full capacity.
14
Enter the time of the event which resulted in the
injury or illness. Indicate a.m. or p.m. Enter "NA"
if no specific time can be determined.
15
Enter the time the employee arrived at his/her initial
worksite. Indicate a.m. or p.m.
16
List all of the equipment, materials and chemicals
the employee was using, applying, handling or operating
when the injury or illness occurred. Be specific,
for example: decorator's scaffolding, electric sander,
paintbrush, and paint. Enter "NA" for not
applicable if no equipment, materials or chemicals
were being used. NOTE: The items listed do not have
to be directly involved in the employee's injury or
illness.
17
Describe the specific activity the employee was engaged
in when the event occurred, such as sanding ceiling
woodwork in preparation for painting.
18
Describe how the injury or illness occurred. Include
the sequence of events and name any objects or substances
that directly injured the employee or made the employee
ill. For example: Worker stepped to the edge of the
scaffolding to inspect work, lost balance and fell
six feet to the floor. The worker's right wrist was
broken in the fall.
Completed
By
Enter
the name of the person who completed the form; title;
phone number; and date of completion.
OMB
Disclosure Statement
Public
reporting burden for this collection of information
is estimated to average 17 minutes per response including
time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed,
and completing and reviewing the collection of information.
If you have any comments regarding this estimate or
any other aspect of this collection of information,
including suggestions for reducing this burden, please
send them to the OSHA Office of Statistics and/or
the Office of IRM Policy, Department of Labor, 200
Constitution Avenue, NW, Washington, DC 20210. Do
not send the completed form to either of these offices.
V.
Legal Authority
The
primary purpose of the Occupational Safety and Health
Act (the Act), 29 U.S.C. 651 et seq., is to assure
so far as possible, safe and healthful working conditions
for every American worker over the period of his or
her working lifetime. The Secretary's responsibilities
under the Act are defined largely by its enumerated
purposes, which include:
Encouraging
employers and employees in their efforts to reduce
the number of occupational safety and health hazards
at their places of employment, and to stimulate employers
and employees to institute new and to perfect existing
programs for providing safe and healthful working
conditions. [29 U.S.C. 651(b)(1)] Building upon advances
already made through employer and employee initiative
for providing safe and healthful working conditions.
[29 U.S.C. 651(b)(4)] Providing for research in the
field of occupational safety and health * * * developing
innovative methods, techniques, and approaches for
dealing with occupational safety and health problems.
[29 U.S.C. 651(b)(5)] Exploring ways to discover latent
diseases, establishing causal connections between
diseases and work in environmental conditions, and
conducting other research relating to health problems
* * * [29 U.S.C. 651(b)6)] Providing medical criteria
which will assure insofar as practicable that no employee
will suffer diminished health, functional capacity,
or life expectancy as a result of his [or her] work
experience. [29 U.S.C. 651(b)(7)] Providing for appropriate
reporting procedures with respect to occupational
safety and health which will help achieve the objectives
of this Act and accurately describe the nature of
the occupational safety and health problems. [29 U.S.C.
651(b)(12)] Encouraging joint labor-management efforts
to reduce injuries and disease arising out of employment.
[29 U.S.C. 651(b)(13)] Several sections of the Act
provide legal authority for promulgation and enforcement
of this regulation. A summary of relevant sections
is provided below:
Section
8(c)(1) of the Act, requires each employer to "make,
keep and preserve, and make available to the Secretary
[of Labor] or the Secretary of Health and Human Services,
such records regarding his activities relating to
this Act as the Secretary, in cooperation with the
Secretary of Health and Human Services, may prescribe
by regulation as necessary or appropriate for the
enforcement of this Act or for developing information
regarding the causes and prevention of occupational
accidents and illnesses." Section 8(c)(2) further
provides that the "Secretary, in cooperation
with the Secretary of Health and Human Services, shall
prescribe regulations requiring employers to maintain
accurate records of, and to make periodic reports
on, work-related deaths, injuries and illnesses other
than minor injuries requiring only first aid treatment
and which do not involve medical treatment, loss of
consciousness, restriction of work or motion, or transfer
to another job." Section 8(c)(3) empowers the
Secretary to require employers to make, keep, and
preserve records regarding activities related to the
Act. In particular, section 8(c)(3) gives the Secretary
authority to require employers to "maintain accurate
records of employee exposures to potentially toxic
materials or harmful physical agents which are required
to be monitored or measured under Section 6."
[29 U.S.C. 657(c)] Section 8(g)(1) authorizes the
Secretary "to compile, analyze, and publish,
either in summary or detailed form, all reports or
information obtained under this section." Section
8(g)(2) of the Act empowers the Secretary "to
prescribe such rules and regulations as he may deem
necessary to carry out his responsibilities under
the Act." [29 U.S.C. 657(g)] Section 9 empowers
the Secretary to issue a citation to an employer who
the Secretary believes "has violated a requirement
* * * of any regulations prescribed pursuant to this
Act" and may, pursuant to Section 10, assess
a penalty under Section 17. [29 U.S.C. 658 and 659]
Section 20 empowers the Secretary of Labor and the
Secretary of Health and Human Services to consult
on research and related activities, "including
studies of psychological factors involved, and relating
to innovative methods, techniques, and approaches
for dealing with occupational safety and health problems."
The Secretary of HHS, on the basis of such research,
"* * * and other information available to him,
shall develop criteria dealing with toxic materials
and harmful physical agents and substances which will
describe exposure levels that are safe for various
periods of employment, including but not limited to
the exposure levels at which no employee will suffer
impaired health or functional capacities or diminished
life expectancy as a result of his work experience."
Also, the Secretary of HHS shall conduct research
"to explore new problems, including those created
by new technology in occupational safety and health,
which may require ameliorative action beyond that
which is otherwise provided for in the operating provisions
of this Act." Section 20 empowers the Secretary
of Labor to disseminate information obtained by the
Secretaries of Labor and HHS under this section to
employers, employees, and organizations thereof. [29
U.S.C. 669] Section 24 requires the Secretary to "develop
and maintain an effective program of collection, compilation,
and analysis of occupational safety and health statistics
* * * The Secretary shall compile accurate statistics
on work injuries and illnesses which shall include
all disabling, serious, or significant injuries and
illnesses, whether or not involving loss of time from
work, other than minor injuries requiring only first
aid treatment and which do not involve medical treatment,
loss of consciousness, restriction of work or motion,
or transfer to another job." Section 24 also
empowers the Secretary to "promote, encourage,
or directly engage in programs of studies, information
and communication concerning occupational safety and
health statistics." Finally, Section 24 requires
employers to "file such reports with the Secretary
as he shall prescribe by regulation, as necessary
to carry out his functions under this chapter."
[29 U.S.C. 673]
VI.
State Plans
The
25 States and territories with their own OSHA approved
occupational safety and health plans must adopt a
comparable rule. These 25 States are: 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; and Connecticut and New York (for State and
local Government employees only). The current 29 CFR
1952.4 requires that such States with approved State
plans under section 18 of the OSH Act (29 U.S.C. 667),
must adopt recordkeeping and reporting regulations
which are "substantially identical" to those
set forth in 29 CFR Part 1904. Therefore, the definitions
used must be identical to ensure the uniformity of
collected information. In addition, Sec. 1952.4 provides
that employer variances or exceptions to State recordkeeping
or reporting requirements in a State plan State must
be approved by the Bureau of Labor Statistics. Similarly,
a State is permitted to require supplemental reporting
or recordkeeping data, but that State must obtain
approval from the Bureau of Labor Statistics to insure
that the additional data will not interfere with "the
primary uniform reporting objectives." The proposed
revision of 29 CFR 1952.4 keeps the same substantive
requirements for the State Plan States, but reflects
the organizational shift of some responsibilities
of the Bureau of Labor Statistics to OSHA. See also
the memorandum of understanding between OSHA and BLS
effective January 1, 1991 (ex. 6).
VII.
Regulatory Impact Assessment
The
average establishment affected by the proposed changes
to the recordkeeping requirements would incur a net
reduction in recordkeeping costs. Thus the proposed
rule will not impose adverse economic impacts on firms
in the regulated community. The proposed exemption
from the regulation of all non-construction establishments
with fewer than 20 employees will mean that most small
entities will experience an even larger cost savings.
Nor is any significant international effect expected.
VIII.
Regulatory Flexibility Certification
Pursuant
to the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Assistant Secretary certifies that the
proposed rule will not have a significant adverse
impact on a substantial number of small entities.
The proposed rule exempts construction employers with
less than eleven employees and non-construction employers
with less than twenty employees from most of the requirements,
and would not have a differential impact on small
businesses.
IX.
Environmental Impact Assessment
In
accordance with the requirements of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), Council
on Environmental Quality NEPA regulations (40 CFR
Part 1500 et seq.), and the Department of Labor's
NEPA regulations (29 CFR Part 11), the Assistant Secretary
has determined that this proposed rule will not have
a significant impact on the external environment.
X.
Federalism
This
proposed rule has been reviewed in accordance with
Executive Order 12612 (52 FR 41685), regarding Federalism.
Because this rulemaking action involves a "regulation"
issued under section 8 of the OSH Act, and not a "standard"
issued under section 6 of the Act, the rule does not
preempt State law, see 29 U.S.C. Sec. 667 (a). The
effect of the proposed rule on States is discussed
above in Section VI, State Plans.
XI.
Public Participation
Interested
persons are requested to submit written comments on
the issues raised in this proposal. Responses to the
questions raised in the proposal are also encouraged.
Whenever possible, solutions should be included where
the comments are of a critical nature. Written submissions
must clearly identify the provisions of the proposal
which are addressed and the position taken on each
issue.
These
comments must be postmarked by May 2, 1996. Comments
are to be submitted in writing in quadruplicate, or
1 original (hard copy) and 1 disk (5 1/4 or 3 1/2)
in WP 5.0, 5.1, 5.2, 6.0 or ascii. Note: Any information
not contained on disk; e.g., studies, articles, etc.
must be submitted in quadruplicate. Comments of 10
pages or less may be transmitted by facsimile to (202)
219-5046 provided the original and 4 copies of the
comment are sent to the Docket Officer thereafter.
All comments shall be submitted to: Docket Officer,
Docket No. R-02, Occupational Safety and Health Administration,
Room N-2625, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, telephone (202)
219-7894.
All
written comments received within the specified comment
period will be made a part of the record and will
be available for inspection and copying at the above
Docket Office address.
A
public meeting will be held in Washington, D.C. in
the U.S. Department of Labor auditorium at 200 Constitution
Avenue, N.W. beginning at 8:30 AM on March 26, 1996
and extending through March 28th, if necessary. The
purpose of the meeting is to give the public an opportunity
to provide information to OSHA concerning the proposed
rule. Notices of intention to appear at the public
meeting should identify person and organization, the
amount of time requested for presenting views, the
subject matter, and a brief summary of the intended
presentation. The amount of time available for each
presenter may be limited by OSHA, if necessary. Notices
to appear must be postmarked on or before March 5,
1996. Notice of intention to appear at the meeting
is to be sent to Mr. Tom Hall, OSHA Division of Consumer
Affairs, Docket No. R-02, Room N-3647, U.S. Department
of Labor, 200 Constitution Avenue, N.W., Washington,
D.C., 20210.
XII.
Paperwork Reduction Act of 1995
The
proposed regulation contains information collections
which are subject to review by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act
of 1995. The title, summary, description of need,
respondent description and estimated reporting and
recordkeeping burden are shown below. Included in
the estimate of burden is the time and effort for
reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, completing
and reviewing the collection of information, and financial
resources expended for developing, acquiring, installing,
and utilizing technology and systems to meet the information
collection requirements.
Title:
Recording and Reporting Occupational Injuries and
Illnesses.
Summary:
OSHA is revising 29 CFR 1904 and the associated Forms
(OSHA No. 200 and OSHA No. 101), and in addition to
providing numerous clarifications and minor modifications,
this revision makes several major changes as follows:
Concept
Change/requirement
Exemptions Expand the Small Employer exemption and
modify the Low Hazard Industry (SIC) exemption
Injury and Illness Records for construction subcontractors
Require site controlling employers in the construction
industry to maintain additional records on workers
other then their own employees
Computerization Allow employers to maintain their
OSHA injury and illness records on computer file without
corresponding hard copies
Injury vs Illness Eliminate the employer responsibility
to distinguish between injuries and illnesses
Recordable condition Redefine the criteria outlining
what is a recordable occupational injury or illness
Forms The forms will be requesting modified information
and will be renumbered as the OSHA Form 300 (OSHA
Injury and Illness Log and Summary) and the OSHA Form
301 (OSHA Injury and Illness Incident Record)
Description
of need: The OSHA Form 300, Log and Summary; the OSHA
Form 301, Incident Record; and the recordkeeping regulations
will provide employers with the means and specific
instructions needed to maintain records of work-related
injuries and illnesses.
Accurate
records are necessary for the optimal prioritization
of OSHA's scarce resources. For example, inspection
priorities are largely based on estimates of occupational
injury and illness data collected from employers.
The data also play an important part in the administrative
procedures mandated by the Supreme Court that allow
OSHA to obtain search warrants to conduct safety and
health inspections. Others using the data include
State and local government agencies, academia, employers,
trade associations, labor, and the general public.
Efforts
to the fulfill the Congressional mandate that the
Federal government protect employees from safety and
health dangers on the job would be severely hampered
by incomplete, inconsistent, and inaccurate data.
The revision of the recordkeeping requirements is
an attempt to improve the accuracy, completeness and
consistency of these records, while reducing the paperwork
burden to the regulated community.
Respondent
description: Approximately 620,000 private sector
employer establishments will be required to maintain
the OSHA Injury and Illness Log and Summary and Incident
Records, though a small number of them will not have
a recordable case in any given year and will only
have to post the summary part of the OSHA Form 300.
Estimated
Burden:
Employers'
Burden for the Proposed Revised Requirements
Actions
Number of cases Unit hours per case Total burden hours
Complete OSHA 301 (Includes research of instructions
and case details to complete the form)
508,895
Forms .28 (17 min/60 min) 142,490
Complete OSHA 300 (Includes research of instructions
and case details to complete the form)
5,088,948
Line entries .166 (10 min/60 min) 844,765
Injury and illness records for construction subcontract
workers
74,822
Line entries .166 (10 min/60 min) 12,420
Fixed burden (Set-up, Summary, and Posting of OSHA
300)
620,879
Establishments .30 (18 min/60 min) 186,264
Learning System -- Turnover 124,176
Establishments
.42 (25 min/60 min) 52,153
Disclosure burden * 444,222
employee requests
.016 (1 min/60 min) 7,107
40,000
Inspections
.033 (2 min/60 min) 1,320
Total Annual Burden Hours
1,246,519
Learning New System Implementation year only
458,518
Establishments .25 (15 min/60 min) 114,629
162,361
Establishments
.42 (25 min/60 min) 68,192
Total Burden Hours for Implementation Year Only
1,429,340
Footnote(*)
Based on estimates of OSHA compliance inspections
conducted during 1993.
This
is an annual decrease in burden of 246,191 hours from
the estimate of the current injury and illness recordkeeping
requirements, after a smaller decrease of 63,370 hours
in the initial year of implementation due to time
required to learn the new system. The decrease in
hours is primarily due to the simplification of definitions
and the reduction of information required on the OSHA
Log and supplementary forms.
The
agency has submitted a copy of the proposed rule to
OMB in accordance with 44 U.S.C. Sec. 3507(d) of the
Paperwork Reduction Act for its review of these information
collections. Interested persons are invited to send
comments regarding this burden estimate or any other
aspect of this collection of information, including
(1) an evaluation of whether the proposed collection
of information ensures that the collection of information
is necessary for the proper performance of the functions
of the agency, including whether the information will
have practical utility; (2) an evaluation of the accuracy
of the agency's estimate of burden of the proposed
collection of information, including the validity
of the methodology and assumptions used; (3) ways
to enhance the quality, utility, and clarity of the
information to be collected; and (4) how to minimize
the burden of the collection of information, including
through the use of appropriate automated, electronic,
mechanical or other technological collection techniques
or other forms of information technology, e.g. permitting
electronic submission of responses. In addition, OSHA
requests comment on the nature and extent of any cost
burdens, (i.e., monetary costs) that employers would
incur due to changes in paperwork requirements that
would be necessitated by this proposal. Comments should
be sent to OSHA Office of Statistics, 200 Constitution
Avenue, N.W., Washington, DC 20210 and to the Office
of Information and Regulatory Affairs, OMB, Room 10235,
New Executive Office Building, Washington, DC 20503,
Attn. Desk Officer for OSHA. Comments on the issues
covered by the Paperwork Reduction Act are most useful
to OMB if received within 30 days of publication of
the Notice of Proposed Rulemaking, and no later than
within 60 days of publication.
List
of Subjects
29
CFR Part 1904
Recording
and reporting of occupational injuries and illnesses,
statistical surveys of occupational injuries and illnesses,
occupational safety and health, State plans.
29
CFR Part 1952
Recording
and reporting of occupational injuries and illnesses,
variances to State recording and reporting requirements,
injury and illness statistics, State plans.
XIII.
Authority
This
document was prepared under the direction of Joseph
A. Dear, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210.
Accordingly,
pursuant to sections 8(c), 8(g), 20 and 24 of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
657, 673), Secretary of Labor's Order No. 1-90 (55
FR 9033), and 5 U.S.C. 553, it is proposed to revise
29 CFR Part 1904 and to amend part 1952 as set forth
below.
Signed
in Washington, DC., this 26 day of January, 1996.
Joseph
A. Dear,
Assistant
Secretary of Labor.
PART
1904 -- [AMENDED]
1.
29 CFR Part 1904 would be revised to read as follows:
PART
1904 -- RECORDING AND REPORTING OCCUPATIONAL INJURIES
AND ILLNESSES
1904.1
Purpose. 1904.2 Coverage and exemptions. 1904.3 Definitions.
1904.4 OSHA Injury and Illness Log and Summary (OSHA
Form 300 or Equivalent).
1904.5
OSHA Injury and Illness Incident Record (OSHA Form
301 or
Equivalent).
1904.6 Preparation, certification and posting of the
year-end summary.
1904.7
Location of records. 1904.8 Period covered. 1904.9
Retention and updating of occupational injury and
illness records.
1904.10
Change of ownership. 1904.11 Access to records. 1904.12
Reporting of fatality or multiple hospitalization
incidents.
1904.13
Reports by employers. 1904.14 Recordkeeping under
approved State plans. 1904.15 Petitions for recordkeeping
exceptions. 1904.16 Falsification of, or failure to
keep records or provide reports.
1904.17
Subcontractor records for major construction projects.
Appendix A to Part 1904 -- Work-Relatedness. Appendix
B to Part 1904 -- Recording of Specific Conditions.
Appendix C to Part 1904 -- Decision Tree for Recording
Occupational Injuries and Illnesses.
Authority:
29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary
of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C.
553.
1904.1
Purpose.
(a)
The purpose of this Part is to require employers to
record and report work-related injuries, illnesses
and fatalities. The records: assist employers and
employees in their efforts to discover, evaluate and
address workplace hazards; assist occupational safety
and health officials in carrying out enforcement and
consultation programs; aid in the development and
evaluation of safety and health standards; are used
to develop information and conduct research regarding
the causes and prevention of occupational injuries
and illnesses; and accurately describe the nature
of occupational safety and health problems for the
Nation, State or establishment.
(b)
The records required in this Part provide descriptive
information concerning the incidence of occupational
injuries and illnesses, regardless of fault or preventability.
Recording an injury or illness does not necessarily
mean that the employer or employee was at fault, that
an OSHA standard was violated, or that the employee
is eligible for workers' compensation or other insurance
benefits. Recordable workplace injuries and illnesses
result from a variety of workplace events or exposures,
including but not limited to: accidents, exposure
to toxic materials or harmful physical agents, intentional
acts of violence, or naturally occurring events such
as a tornado or earthquake.
(c)
The regulations in this Part were promulgated in consultation
with the Secretary of Health and Human Services.
1904.2
Coverage and exemptions.
Coverage
and exemptions are summarized below and specified
in the following table. See table to determine coverage
and exemptions.
(a)
Coverage. (1) All employers covered by the Act, regardless
of size or Standard Industrial Classification (SIC),
are required to:
(i)
Comply with the reporting requirements of Sec. 1904.12
of this Part, concerning fatalities or multiple hospitalizations;
and
(ii)
Upon being notified in writing by an authorized government
agency, maintain an OSHA Injury and Illness Log and
Summary and make reports under Sec. 1904.13 of this
Part.
(2)
Additionally, employers in specific industries listed
in columns A and B on the following table are required
to comply with other regulations in this Part 1904,
except as provided in paragraph (b) of this section.
(b)
Exemptions. Exemptions from coverage are based upon
size and the Standard Industrial Classification (SIC)
of the employer:
(1)
Size. (i) Construction employers with 10 or fewer
employees for the entire previous calendar year are
exempt from the regulations of this Part 1904, except
as noted in paragraph (a)(1) of this section. See
column D of the Coverage and Exemption Table in paragraph
(b)(2) of this section.
(ii)
Employers in industries other than construction with
19 or fewer employees for the entire previous calendar
year are exempt from the regulations of this Part
1904, except as noted in paragraph (a)(1) of this
section. See column D of the Coverage and Exemption
Table in paragraph (b)(2) of this section.
(2)
Standard Industrial Classification (SIC) code. Within
the covered industries (column B), certain specific
industries (at the 3-digit SIC level) are exempt from
the regulations of this Part 1904, except as noted
in paragraph (a)(1) of this section. See column C
for the list of exempt SICs.
Note
to paragraph (b)(2): Standard Industrial Classification
(SIC) shall be determined using the Standard Industrial
Classification Manual, Executive Office of the President,
Office of Management and Budget. All size thresholds
or exemptions are based on the number of employees
of the entire firm or corporation, not the number
of employees in an individual establishment.
Coverage
and Exemption Table
Note
1 to Coverage and Exemption Table: All employers covered
by the OSH Act, regardless of size or SIC code are
required to comply with Secs. 1904.12 and 1904.13.
The following table refers to coverage and exemptions
to the other requirements of Part 1904.
Covered
employers Exemptions to
employers listed in column B
(A)
Industry
division (B)
Specific
industry (C)
By SIC (D)
By size
Construction All Industries
(SIC 15-17) 10 or fewer employees for the entire previous
calendar year
Mining All Industries not covered by MSHA 19 or fewer
employees for the entire previous calendar year
Agriculture All Industries
(SIC 01-09)
Manufacturing All Industries
(SIC 20-39)
Transportation & Utilities All Industries
(SIC 40-49)
Wholesale All Industries
(SIC 50-51)
Retail SIC 52 Building Materials, Hardware Garden
Supply and Mobile Home Dealers
SIC
53 General Merchandise Stores,
SIC
54 Food Stores,
SIC
553 Auto and Home Supply Stores,
SIC
555 Boat Dealers,
SIC
571 Home Furniture and Furnishings Stores,
SIC
58 Eating and Drinking Places,
SIC
596 Nonstore Retailers,
SIC
598 Fuel Dealers
SIC 525 Hardware Stores
Finance, Insurance & Real Estate SIC 651 Real
Estate Operators and Lessors and SIC 655 Land Subdividers
and Developers
Services SIC 70 Hotels, Rooming Houses, Camps and
Other Lodging Places
SIC
721 Laundry, Cleaning, and Garment Services
SIC 734 Services to Dwellings and Other Buildings
SIC
735 Miscellaneous Equipment Rental and Leasing
SIC
736 Personnel Supply Services
SIC 75 Automotive Repair, Services, and Parking
SIC
76 Miscellaneous Repair Services;
SIC
79 Amusement and Recreation Services;
SIC
80 Health Services;
SIC
833 Job Training and Vocational Rehabilitation Services;
SIC
836 Residential Care;
SIC
842 Arboreta and Botanical or Zoological Gardens;
and
SIC
869 Membership Organizations Not Elsewhere Classified
SIC 752 Automobile Parking;
SIC
764 Reupholstery and Furniture Repair;
SIC
793 Bowling Centers;
SIC 801 Offices and Clinics of Doctors of Medicine;
SIC
807 Medical and Dental Laboratories; and
SIC
809 Miscellaneous Health and Allied Services, Not
Elsewhere Classified
Note
2 to Coverage and Exemption Table: Some States with
their own occupational safety and health programs
do not recognize the Federal recordkeeping exemptions.
Contact your nearest OSHA office or State agency to
find out if State requirements differ.
Note
3 to Coverage and Exemption Table: SICs are from the
Standard Industrial Classification Manual, 1987: U.S.
Office of Management and Budget. Contact your nearest
OSHA office or State agency for help in determining
your SIC.
Note
4 to Coverage and Exemption Table: The size exemption
is based on the employment of the entire firm, not
of an individual establishment. Employees include
part-time workers and corporate officers.
Note
5 to Coverage and Exemption Table: Employers normally
exempt from the recordkeeping requirements must still
comply with the following:
(1)
Report any occupational fatality or event resulting
in the hospitalization of 3 or more employees as required
by Section 1904.12; and
(2)
Maintain an OSHA Injury and Illness log and Summary
and submit reports if directed in writing to do so
by an authorized government agency as required by
Section 1904.13.
Note
6 to Coverage and Exemption Table: Example of how
to read the Coverage and Exemption Table: Employers
in SIC 52 (Building Materials, Hardware Garden Supply
and Mobile Home Dealers) are covered by the regulation
except for employers with 19 or fewer employees in
the previous calendar year and Hardware Stores (SIC
525) of any size.
1904.3
Definitions.
The
following definitions apply to employer recording
and reporting of occupational fatalities, injuries
and illnesses.
Act
means the Occupational Safety and Health Act of 1970
(84 Stat. 1590 et seq., 29 U.S. 651 et seq.). The
definitions contained in section (3) of the Act and
related interpretations shall be applicable to such
terms when used in this Part 1904.
Days
away from work means the number of days the employee
would have worked but could not because of an occupational
injury or illness. Days away from work do not include
the day the employee was injured or became ill and
days on which the employee would not have worked even
though able to work (e.g. weekends, holidays, pre-scheduled
vacation days, etc.). The count of days away from
work ceases with the termination of employment if
the termination is completely unrelated to the employee's
injury or illness. If the termination is related to
the employee's injury or illness, the employer must
enter an estimate of the number of days that would
have been missed had the employee not been terminated.
For extended cases that result in 180 or more days
away from work, an entry of "180" or "180+"
in the days away from work column shall be considered
an accurate count.
Employee
as defined in section 3 of the Act, means an employee
of an employer who is employed in a business of his
or her employer which affects commerce.
Note
to definition of "Employee": There are a
variety of circumstances which result in an employee/employer
relationship for OSHA recordkeeping purposes. The
following is meant to be illustrative only, and not
meant to be an exhaustive list. Employees include
corporate officers as well as full-time, part-time,
temporary and limited service workers who receive
any form of compensation for their services. Employees
include persons who may be labeled "independent
contractors", or migrant workers, and persons
who are provided by a temporary help service or personnel
leasing agent when they are supervised on a day-to-day
basis by the employer utilizing their services. 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. Employees do not include sole
proprietors, partners, family members of farm employers
or domestic household workers when employed in the
home (baby sitters, housekeepers, gardeners, etc.).
Establishment
means:
(1)
A single physical location that is in operation for
60 calendar days or longer where business is conducted
or where services or industrial operations are performed.
(For example: A factory, mill, grocery store, construction
site, hotel, farm, ranch, hospital, central administrative
office, or warehouse.) The establishment includes
the primary work facility and other areas such as
recreational and storage facilities, restrooms, hallways,
etc. The establishment does not include company parking
lots.
(2)
When distinct and separate economic activities are
performed at a single physical location, each activity
may represent a separate establishment. For example,
contract construction activities conducted at the
same physical location as a lumber yard may be treated
as separate establishments. According to the Standard
Industrial Classification (SIC) Manual, Executive
Office of the President, Office of Management and
Budget, (1987) each distinct and separate activity
should be considered an establishment when no one
industry description from the SIC manual includes
such combined activities, and the employment in each
such economic activity is significant, and separate
reports can be prepared on the number of employees,
their wages and salaries, sales or receipts, or other
types of establishment information.
First
aid means the following treatments for work-related
injuries and illnesses. This list is a comprehensive
list of all treatments considered first aid for recordkeeping
purposes. These treatments are considered "first
aid", regardless of the provider, thus they may
be provided by a physician, nurse, or other health
care provider and are still considered first aid.
(1)
Visit(s) to a health care provider limited to observation
(2) Diagnostic procedures, including the use of prescription
medications solely for diagnostic purposes (e.g. eye
drops to dilate pupils) (3) Use of nonprescription
medications, including antiseptics (4) Simple administration
of oxygen (5) Administration of tetanus or diphtheria
shot(s) or booster(s) (6) Cleaning, flushing or soaking
wounds on skin surface (7) Use of wound coverings
such as bandages, gauze pads, etc. (8) Use of any
hot/cold therapy (e.g. compresses, soaking, whirlpools,
non-prescription skin creams/lotions for local relief,
etc.) except for musculoskeletal disorders (See Mandatory
Appendix B) (9) Use of any totally non-rigid, non-immobilizing
means of support (e.g. elastic bandages) (10) Drilling
of a nail to relieve pressure for subungual hematoma
(11) Use of eye patches (12) Removal of foreign bodies
not embedded in the eye if only irrigation or removal
with a cotton swab is required (13) Removal of splinters
or foreign material from areas other than the eyes
by irrigation, tweezers, cotton swabs or other simple
means Health care provider is a person operating within
the scope of his or her license, registration or certification
in health care.
Injury
or illness is any sign, symptom, or laboratory abnormality
which indicates an adverse change in an employee's
anatomical, biochemical, physiological, functional,
or psychological condition.
Medical
treatment includes any medical care or treatment beyond
"first aid".
Responsible
Company Official is the person accountable for certifying
the accuracy and completeness of the entries on the
OSHA Injury and Illness Log and Summary. This person
must be either an owner of the company, an officer
of the corporation, the highest ranking company official
working at the establishment, or the immediate supervisor
of the highest ranking company official working at
the establishment.
Restricted
work activity means the employee is not capable of
performing at full capacity for a full shift:
(1)
The task he or she was engaged in at the time of injury
or onset of illness (the task includes all facets
of the assignment the employee was performing); OR
(2) His or her daily work activity (daily work activity
includes all assignments the employee was expected
to perform on the day of injury or onset of illness).
Site
controlling employer is an employer in the construction
industry (SIC codes 15, 16 and 17) with contractual,
legal and/or practical control over the performance,
timing, or coordination of other employers' work on
a construction project with an initial total contract
value of one million dollars ($1,000,000) or more.
An employer (such as a general contractor) that retains
another employer to work on the project is presumed
to have sufficient control over the subcontractor's
performance to be considered a site controlling employer.
In addition, an employer (such as a construction manager)
is a site controlling employer if it has managerial
or supervisory authority with respect to employers
engaged on the project, regardless of whether it has
a contractual relationship with those employers.
Subcontractor
employees are employees of construction firms (in
SICs 15, 16, and 17) who are present at a construction
project in connection with their job(s) who are not
employees of the site controlling employer at that
construction project.
Work
environment means the establishment and other locations
where employees are engaged in work or are present
as a condition of their employment.
Work-related.
An injury or illness is work-related if an event or
exposure in the work environment either caused or
contributed to the resulting condition, or aggravated
a pre-existing condition. Work-relatedness is presumed
for injuries and illnesses resulting from eventsor
exposures occurring at the employer's establishment.
Work-relatedness is not presumed for injuries and
illnesses resulting from events or exposures away
from the employer's establishment; they are considered
work-related only if the worker is engaged in a work
activity or is present as a condition of employment.
See Mandatory Appendix A to part 1904 for a discussion
of work-relatedness and criteria for rebutting the
presumption of work-relatedness.
1904.4
OSHA Injury and Illness Log and Summary (OSHA Form
300 or Equivalent).
(a)
Each employer shall maintain for each establishment
an OSHA Injury and Illness Log and Summary [OSHA Form
300 (formerly OSHA No. 200)] or equivalent form for
recordable injuries and illnesses experienced by his
or her employees. Employers with multiple establishments
may maintain a consolidated log for establishments
employing no more than 20 employees. Employers who
exercise this option must enter the address of the
affected employee's establishment in the department
column for each recorded injury or illness.
(b)
Each employer shall enter every recordable injury
and illness within 7 calendar days of receiving information
that a recordable injury or illness has occurred.
A recordable injury or illness is one which meets
all of the following four criteria:
(1)
An injury or illness exists (see the definition of
injury or illness for additional information); and
(2)
The injury or illness is work-related (see the definition
of work-related and Appendix A to part 1904 for additional
information); and
(3)
The injury or illness is new. A new injury or illness
does not result from the recurrence of a pre-existing
condition if no new or additional workplace incident
or exposure occurs. A recurrence of a previous work
related injury or illness is presumed to be a new
case when it either (1) results from a new work event
or exposure, or (2) 45 days have elapsed since medical
treatment, restricted work or days away from work
were discontinued and the last signs or symptoms were
experienced;
(Note:
This presumption is rebuttable by medical evidence
indicating that the prior case had not been resolved.)
and (4) The injury or illness meets one or more of
the following: (i) results in death or loss of consciousness,
(ii) results in day(s) away from work, restricted
work activity or job transfer, (iii) requires medical
treatment beyond first aid, or (iv) is a recordable
condition listed in the Mandatory Appendix B to part
1904.
(5)
See Appendix C to part 1904 for a decision tree for
recording occupational injuries and illnesses.
(c)
Any employer may maintain the OSHA Injury and Illness
Log and Summary (OSHA Form 300) on an equivalent form,
by means of data processing equipment, or both, when
all of the following conditions are met:
(1)
The equivalent form or computer printout is as readable
and understandable as the OSHA Form 300 to a person
familiar with the OSHA Form 300.
(2)
The equivalent form or computer printout must contain,
at a minimum, the same information as found on the
OSHA Form 300.
1904.5
OSHA Injury and Illness Incident Record (OSHA Form
301 or Equivalent).
(a)
In addition to the OSHA Injury and Illness Log and
Summary (OSHA Form 300) provided for under Section
Sec. 1904.4(a) of this Part, each employer, shall
complete an OSHA Injury and Illness Incident Record
[OSHA Form 301 (formerly OSHA Form 101)] for each
recordable injury or illness experienced by employees
of that establishment, within 7 calendar days of receiving
information that a recordable injury or illness has
occurred. Each OSHA Form 301 must contain the unique
case or file number relating it to the corresponding
case entry on the OSHA Form 300.
(b)
An employer may maintain the OSHA Form(s) 301 on an
equivalent form(s), by means of data processing equipment,
or both, when all of the following conditions are
met:
(1)
The equivalent form or computer printout is as readable
and understandable as the OSHA Form 301 to a person
familiar with the OSHA Form 301.
(2)
The equivalent form or computer printout must contain,
all of the information found on the OSHA Form 301,
or must be supplemented by an OSHA Form 301 containing
the missing information. The detailed information
concerning the injury or illness (questions 16, 17
and 18) must be asked in the same order and using
identical language from the Form 301. All other questions
may be asked in any manner and in any order.
1904.6
Preparation, certification and posting of the year-end
summary.
(a)
Each employer shall post a year-end summary of occupational
injuries and illnesses for each establishment. This
summary shall consist of the year's injury and illness
totals from the OSHA Form 300 or equivalent, calendar
year covered, company name, establishment name, establishment
address, annual average number of employees, the total
hours worked by all employees, and the employee access
and employer penalty statements as found on the OSHA
Form 300. If no injuries or illnesses occurred during
the year: Zeroes must be entered on the totals line;
annual average number of employees and total hours
worked by all employees must be entered; and the form
shall be posted. Note: The OSHA 300 Log may be used
for the summary. The posting requirement may be met
by simply copying and posting the portion of the 300
Log to the right of column A.
(b)
A responsible company official (see the definition
of responsible company official for further information)
shall sign the summary of occupational injuries and
illnesses to certify that he or she has examined the
OSHA Injury and Illness Log and Summary and that the
entries on the form and the year-end summary are true,
accurate and complete.
(c)(1)
Each employer shall post a copy of the establishment's
year-end summary in each establishment in the same
manner that notices are required to be posted under
29 CFR 1903.2(a)(1). The summary shall be completed
and posted no later than February 1 of the year following
the calendar year covered by the summarized records,
and shall remain in place until January 31 of the
following year.
(2)
For employees who do not primarily report to or work
at a single establishment, employers shall satisfy
this posting requirement by presenting or mailing
a copy of the summary to each employee who is on the
payroll at any time during the month of January following
the calendar year covered by the year-end summary.
(3)
For employers who maintain a consolidated log of small
establishments under Sec. 1904.4(a), employers shall
satisfy this posting requirement by posting a year-end
summary based on the consolidated log in each establishment.
(4)
Multi-establishment employers do not have to post
year-end summaries for establishments that have permanently
closed during the calendar year.
1904.7
Location of records.
(a)
The records required by Secs. 1904.4, 1904.5, 1904.6
and 1904.17 for employees and "subcontractor
employees" who report to or work at a single
establishment, such as a factory, construction site,
grocery store, hospital, warehouse, central administrative
office, etc. shall be kept at the establishment.
(b)
Records for employees who report to a particular establishment
but work elsewhere shall be kept at the establishment
where the employees report each day.
(c)
For employees who normally report to one establishment
but are injured or become ill at another establishment
within the same company, a recordable injury or illness
shall be entered on the Log of the establishment in
which they were injured or became ill.
(d)
Records for employees who do not report to any establishment
on a regular basis may be kept at the transient work
site(s) for each operation or group of operations
or they may be kept at an established central location
by:
(1)
Having the address and telephone number of the central
location available at each worksite; and
(2)
Having personnel available at the central location
during normal business hours to provide information
from the records kept there.
(e)
Any employer may keep the OSHA Form 300 or OSHA Form(s)
301 at a location other than the establishment, as
long as the information is retrievable in accordance
with the provisions defined in Sec. 1904.11, Access
to records.
1904.8
Period covered.
Records
shall be kept on a calendar year basis.
1904.9
Retention and updating of work-related injury and
illness records.
(a)
Retention. OSHA Forms 300 and 301 or equivalents,
year-end summaries, and injury and illness records
for "subcontractor employees" as required
under Sec. 1904.17 of this Part shall be retained
for 3 years following the end of the year to which
they relate.
(b)
Updating. During the retention period, employers must
revise the OSHA Form 300 or equivalent to include
newly discovered recordable injuries or illnesses.
Employers must revise the OSHA Form 300 to reflect
changes which occur in previously recorded injuries
and illnesses. If the description or outcome of a
case changes, remove the original entry and enter
the new information to reflect the more severe consequence.
Employers must revise the year-end summary at least
quarterly if such changes have occurred.
Note
to Sec. 1904.9: Employers are not required to update
OSHA Form 301 to reflect changes in previously recorded
cases.
1904.10
Change of ownership.
Where
an establishment has changed ownership, each employer
shall be responsible for recording and reporting occupational
injuries and illnesses only for that period of the
year during which he or she owned such establishment,
but the new owner shall retain all records of the
establishment kept by the prior owner, as required
by Sec. 1904.9(a) of this Part.
1904.11
Access to records.
(a)
Government Representatives. Each employer shall provide,
upon a request made in person or in writing, copies
of the OSHA Forms 300 and 301 or equivalents, and
year-end summaries for their own employees, and injury
and illness records for "subcontractor employees"
as required under this Part to any authorized representative
of the Secretary of Labor or Secretary of Health and
Human Services or to any authorized representative
of a State accorded jurisdiction for occupational
safety and health for the purposes of carrying out
the Act.
(1)
When the request is made in person, the information
must be provided in hard copy (paper printout) within
4 hours. If the information is being transmitted to
the establishment from some other location, using
telefax or other electronic transmission, the employer
may provide a copy to the government representative
present at the establishment or to the government
representative's office.
(2)
When the request is made in writing, the information
must be provided within 21 days of receipt of the
written request, unless the Secretary requests otherwise.
(b)
Employee(s), former employee(s) and/or their designated
representative(s). (1) Upon request, the employer
shall make the OSHA Form 300 or equivalent available
for viewing by an employee(s), former employee(s),
and/or their designated representative(s) by the close
of business on the next scheduled work day. The employee,
former employee, and/or their designated representative(s)
shall have access to the entire OSHA Form 300 (Log),
including personal identifiers, for any establishment
in which the employee is or has been employed. This
includes access to the current Log and all Logs retained
and maintained pursuant to Sec. 1904.9.
(2)
Upon request, the employer shall make available to
an employee(s) or former employee(s) for viewing his
or her OSHA Form(s) 301 or equivalent for his or her
own recordable injury or illness by the close of business
on the next scheduled workday.
(3)
The employer shall also make copies available within
7 calendar days whenever an individual who has a right
to view a record(s) listed in paragraphs (b) (1) and
(2) of this section requests a copy, either in person
or in writing. The employer shall not, in writing
or otherwise, attempt to restrict the employees' use
of such copies. The employer shall assure that either:
(i)
A copy of the record(s) is provided without cost to
the individual;
(ii)
The necessary copying facilities (e.g., photocopying)
are made available without cost to the individual
for copying the record(s); or (iii) The record(s)
is loaned to the individual for a reasonable time
to enable a copy to be made.
(4)
Whenever a record has been previously provided without
cost to an employee(s), former employee(s) and/or
their designated representative(s), the employer may
charge reasonable, non-discriminatory administrative
costs (i.e. search and copying expenses but not including
overhead expenses) for a request by the same person
for additional copies of the record, except that an
employer shall not charge for an initial request of
a copy of an updated or corrected record.
(5)
Upon request, the employer shall make available to
an employee(s), former employee(s) or his or her designated
representative access to all OSHA Form(s) 301 or equivalent.
Access shall be provided in a reasonable time. The
employer may charge a reasonable fee for searching
and copying expenses.
(c)
Nothing in this section shall be deemed to preclude
employees and their designated representatives from
collectively bargaining to obtain access to information
relating to occupational injuries and illnesses in
addition to the information made available under this
section.
(d)
In the case of a deceased or legally incapacitated
employee, the employee's legal representative(s) may
directly exercise all the employee's rights under
this section.
1904.12
Reporting of fatality or multiple hospitalization
incidents.
(a)
Within 8 hours after the death of any employee from
a work-related incident or the in-patient hospitalization
of three or more employees as a result of a work-related
incident, the employer(s) of each employee so affected
shall, report the fatality/multiple hospitalization
by telephone or in person to the Area Office of the
Occupational Safety and Health Administration (OSHA),
U.S. Department of Labor, that is nearest to the site
of the incident during regular business hours, or
by using the OSHA emergency toll-free central telephone
number (1-800-321-OSHA [6742]) during non business
hours. Note: The site controlling employer or designee
will be responsible for making the report if no more
than two employees of a single employer were hospitalized
but, collectively, three or more workers were hospitalized
as in-patients.
(b)
This requirement applies to each such fatality or
hospitalization of three or more employees which occurs
within thirty (30) days of an incident.
(c)
Exception: If the employer does not learn of a reportable
incident at the time it occurs and the incident would
otherwise be reportable under paragraphs (a) and (b)
of this section, the employer shall make the report
within 8 hours of the time the incident is reported
to any agent or employee of the employer.
(d)
Each report required by this section shall relate
the following information: establishment name, location
of incident, time of the incident, number of fatalities
or hospitalized employees, contact person, phone number,
and a brief description of the incident.
1904.13
Reports by employers.
(a)
Section 24 of the Act, 29 U.S.C. 673, directs the
Secretary of Labor, in consultation with the Secretary
of Health and Human Services, to develop and maintain
a program of collection, compilation, and analysis
of occupational safety and health statistics. Section
24 also requires employers to file reports with the
Secretary on "the basis of records made and kept
pursuant to Section 8(c) of this Act." Section
8(c), 29 U.S.C. 657(c), requires each employer to
"make, keep and preserve, and make available
to the Secretary or the Secretary of Health and Human
Services, such records regarding his activities relating
to this Act" as prescribed by regulation for
enforcement of the Act or "for developing information
regarding the causes and prevention of occupational
accidents and illnesses." Section 8(c) also directs
the Secretary of Labor, in cooperation with the Secretary
of Health and Human Services, to prescribe regulations
requiring employers to maintain accurate records of,
and to make periodic reports on work-related deaths,
injuries, and illnesses.
(b)
Pursuant to the statutory authority described above,
the Secretary of Labor and Secretary of Health and
Human Services may request reports from employers
regarding the employers' activities relating to the
Act. These requests for reports shall be in writing,
shall describe what information must be reported,
and may include a request for copies of records kept
pursuant to 29 CFR Part 1904, information that the
employer is required to maintain by regulations or
standards promulgated pursuant to the Act, information
required to participate in periodic surveys of occupational
injuries and illnesses, and/or information necessary
to determine rates of injury, illness or exposure,
such as employment and hours of work. Note: Employers
who are otherwise exempted under Sec. 1904.2 of this
Part, shall upon notification by the Secretary of
Labor or Secretary of Health and Human Services, maintain
the OSHA Log and Summary on Injuries and Illnesses
for any year in which they are notified that they
have been selected for participation in a data collection
program of occupational injuries and illnesses.
(c)
The employer shall file the requested reports with
the Secretary within 21 calendar days of receipt of
the request, unless the Secretary requests otherwise.
(d)
Nothing in any State plan approved under section 18(c)
of the Act shall affect the duties of employers to
submit required reports.
1904.14
Recordkeeping under approved State plans.
(a)
Recordkeeping and reporting requirements promulgated
by State plans are required to be substantially identical
to this Part (see 29 CFR 1902.3(k) and 29 CFR 1952.4).
State plans shall promulgate recordkeeping and reporting
requirements that are identical to the Federal requirements
for determining the types of injuries and illnesses
that will be entered into the records and the manner
in which they are entered. All other recordkeeping
and reporting requirements that are promulgated by
State plans shall be at least as effective as the
Federal requirements.
(b)
Records maintained by an employer and reports submitted,
pursuant to and in accordance with the requirements
of an approved State plan under section 18 of the
Act, shall be regarded as compliance with this Part.
(c)
State and local government agencies are exempt from
Federal OSHA recordkeeping in States under the jurisdiction
of Federal OSHA. However, in States with their own
OSHA approved safety and health programs, State and
local government agencies must keep injury and illness
records in accordance with State law and 29 CFR 1952.4.
1904.15
Petitions for recordkeeping exceptions.
All
requests or variances for recordkeeping exceptions
shall be made in accordance with the procedures set
forth in 29 CFR 1905. Any exception granted prior
to [Effective date of final rule] is null and void.
1904.16
Falsification of, or failure to keep records or provide
reports.
(a)
Section 17(g) of the Act provides that "Whoever
knowingly makes any false statement, representation,
or certification in any application, record, report,
plan or other document filed or required to be maintained
pursuant to this Act shall, upon conviction, be punished
by a fine of not more than $10,000, or by imprisonment,
for not more than 6 months or both."
(b)
Failure to maintain records or file reports as required
by Part 1904, or as required by the forms and instructions
issued under Part 1904, may result in the issuance
of citations and assessment of penalties as provided
for in sections 9, 10, and 17 of the Act.
(c)
An employee who is subject to retaliatory discrimination
by his or her employer for filing a report of a work-related
injury or illness is protected by Section 11(c) of
the OSH Act and 29 CFR 1977 Discrimination Against
Employees Exercising Rights Under the Williams-Steiger
Occupational Safety and Health Act of 1970. An employer
who violates section 11(c) may be required to reinstate
or rehire a fired employee with back pay.
1904.17
Subcontractor records for major construction projects.
(a)
Any site controlling employer in the construction
industry (SICs 15, 16 and 17), for construction projects
with an initial total contract value of one million
dollars ($1,000,000) or more, shall maintain a separate
occupational injury and illness record (subcontractor
record) for recordable injuries and illnesses sustained
by "subcontractor employees" (not considered
employees of the site controlling employer) while
working at the construction project. On the subcontractor
record, the site controlling employer is only required
to record occupational injuries and illnesses of "subcontractor
employees" who are employed by a construction
firm who had eleven (11) or more full and/or part-time
employees at any one time during the calendar year
immediately preceding the current calendar year. (Note:
The size threshold is based on the number of employees
of the entire firm or corporation, not of an individual
establishment.) (b) The site controlling employer
shall comply with the requirements of Sec. 1904.4(b)
in determining which injuries and illnesses are recordable
on the subcontractor record, and when to record them.
The injury and illness information for each recordable
case occurring to "subcontractor employees"
shall include the person's name, company, date of
the event which resulted in the injury or illness,
and a brief description of the injury or illness.
The site controlling employer shall also include the
location of the site and the period of time covered
on the record. The site controlling employer shall
maintain all subcontractor records pertaining to one
construction site in a consolidated file by calendar
year. The site controlling employer has the option
of using a separate OSHA Form 300, an equivalent form,
or a collection of records to satisfy this requirement.
Note: The employer of the "subcontractor employee"
is not relieved of the responsibility of completing
the OSHA Form 300 or equivalent as required by Sec.
1904.4(a).
(c)
For those construction projects where there is more
than one site controlling employer, those employers
may agree to assign the responsibility for maintaining
the subcontractor records to one of the site controlling
employers by means of a written agreement. When such
a written agreement exists, the other site controlling
employers on the project are not required to maintain
the subcontractor record regardless of whether they
may be deemed to be site controlling employers.
(d)
The site controlling employer is not required to complete
an OSHA Form 301 for injuries or illnesses experienced
by "subcontractor employees". Note: The
employer of the "subcontractor employee"
is not relieved of the responsibility of completing
the OSHA Form 301 or equivalent as required by Sec.
1904.5(a).
(e)
The site controlling employer is not required to prepare
a year-end summary for injuries and illnesses experienced
by "subcontractor employees". Note: The
employer of the "subcontractor employee"
is not relieved of the responsibility of completing
the year-end summary as required by Sec. 1904.6(a).)
(f) The site controlling employer is not required
to update the injury and illness records for "subcontractor
employees". Note: The employer of the "subcontractor
employee" is not relieved of the responsibilities
to update the injury and illness records as required
by Sec. 1904.9(a).
Appendix
A to Part 1904 -- Work-Relatedness (Mandatory)
If
an event or exposure in the work environment either
caused or contributed to an injury or illness, or
aggravated a pre-existing condition, then the case
is considered work-related. Work-relatedness is presumed
for injuries and illnesses resulting from events or
exposures occurring at the employer's establishment.
Injuries or illnesses occurring away from the establishment
are considered work-related only if the worker is
engaged in a work activity or is present as a condition
of his or her employment.
A.
Work-Related Injuries and Illnesses -- Special Situations:
Injuries or illnesses are considered to be work-related
if they occur in the following situations:
1.
While the employee is engaged in work activity or
apprenticeship/vocational training required by the
employer.
2.
While the employee is on break, in the rest room or
in storage areas when located on the employer's premises.
3.
While the employee is performing work for pay or compensation
at home, if the injury or illness is directly related
to the performance of work rather than the general
home environment or setting.
4.
While the employee is traveling on business, including
to and from customer contacts.
5.
While the employee is engaged in work activity where
a vehicle is considered the work environment (e.g.
truck, taxi, etc.).
B.
Non Work-Related Injuries and Illnesses. The following
injuries and illnesses are not considered work-related.
Only the following may be used to rebut the presumption
of work-relatedness that applies to injuries and illnesses
occurring at the employers' establishment:
1.
Injuries or illnesses will not be considered work-related
if they occur to individuals present at their employer's
establishment as a member of the general public rather
than as a worker.
2.
Injuries or illnesses will not be considered work-related
if they involve symptoms that surface at work but
solely result from a non-work-related event or exposure
outside of the work environment 3. Injuries or illnesses
will not be considered work-related if they result
solely from voluntary participation in wellness programs,
medical, fitness and recreational activities (e.g.
exercise classes, blood donations, physicals, flu
shots, racquetball, baseball, etc.).
4.
Injuries or illnesses will not be considered work-related
if they solely result from a worker eating, drinking
or preparing his or her own food when unrelated to
occupational factors.
5.
Injuries or illnesses will not be considered work-related
if they are solely the result of workers doing personal
tasks (unrelated to their employment) at the establishment
outside of normal working hours.
6.
Cases will not be considered work-related if they
result solely from acts of violence committed by one's
family or exspouse when unrelated to the worker's
employment, including intentionally self-inflicted
injuries.
7.
Injuries or illnesses will not be considered work-related
if they occur on company parking lots and access roads
while employees are arriving at or leaving work.
8.
An injury or illness will not be considered work-related
if the worker was never engaged in any duty at work
that could have placed stress on the affected body
part or was never exposed to any chemical or physical
agent at work that could be associated with the observed
injury or illness.
9.
An injury or illness will not be considered work-related
if the case results solely from activity in voluntary
community or civic projects away from the employer's
establishment.
10.
An injury or illness will not be considered work-related
if the case results solely from normal body movements,
i.e. walking unencumbered, talking, tying a shoe,
sneezing, coughing, provided the activity does not
involve a job-related motion and the work environment
does not contribute to the injury or illness.
11.
Mental illness will not be considered work-related,
except mental illnesses associated with post-traumatic
stress.
C.
Travel Status. 1. Employees in travel status (i.e.
traveling on company business) should be considered
engaged in work-related activities during all of their
time spent in the "interest of their company".
This includes, but is not limited to, travel to and
from customer contacts, conducting job tasks, and
entertaining or being entertained for the purpose
of transacting, discussing, or promoting business.
2.
When traveling employees check into a hotel, motel
or other lodging, they establish a "home away
from home". Thereafter, their activities are
evaluated in the same manner as for non-traveling
employees. For example, injuries sustained when commuting
from a hotel to a temporary work site are not work-related,
just as injuries sustained during an employee's normal
commute from a permanent residence to an office would
not be considered work-related.
3.
While an employee is in travel status, the following
situations are not considered work-related:
i.
Normal commuting between the employee's temporary
residence and his or her job; and
ii.
Situations where the employee departs from a reasonably
direct route of work-related travel for personal reasons
(e.g., a side trip for a vacation).
D.
Employees who work in their own home. An injury or
illness will be considered work-related if it occurs
while the employee is performing work for pay or compensation
in the home, if the injury or illness is directly
related to the performance of work rather than the
general home environment or setting.
E.
Employees who live at the employer's establishment.
1. Some workplaces provide living quarters for employees.
Off-shore oil rigs, ships and construction sites at
remote locations commonly provide their employees
with living accommodations.
2.
In these workplaces, injuries or illnesses are presumed
to be work-related if the employee is on-duty or engaged
in a work activity. The injury or illness is also
considered work-related if the employee was harmed
as a result of a serious workplace accident such as
a chemical release, fire, explosion, shipwreck, steam
release, or building collapse.
3.
All other injuries and illnesses occurring during
off-duty hours are considered non-work-related.
Appendix
B to Part 1904 -- Recording of Specific Conditions
(Mandatory)
The
purpose of this appendix is to provide information
for the recording of specific conditions which may
not be captured by the other recordability criteria.
For purposes of OSHA-mandated recordkeeping, the conditions
listed in this appendix are considered Recordable
Injuries and Illnesses when the condition listed is
work-related. The employer shall evaluate, for OSHA
injury and illness recordkeeping purposes, all information
received as a result of medical surveillance required
by an OSHA standard.
Conditions
not included in this Appendix that otherwise meet
the criteria in the Sec. 1904.4.(c) must be recorded.
Table
Of Specific Conditions
System
Condition Recording criteria
Multisystem Carbon monoxide poisoning Elevated carboxyhemoglobin
levels and/or diagnosis by a health care provider
Mercury 15 micrograms or greater per liter (ug/L)
of whole blood or 35 micrograms or greater per gram
(ug/g) creatinine in urine and/or diagnosis of mercury
poisoning by a health care provider
Lead 40 micrograms or greater per 100 grams (ug/100g)
of whole blood and/or diagnosis of lead poisoning
by a health care provider
Cadmium -- 3 micrograms or greater per gram (ug/g)
creatinine in urine; or
--
B2-microglobulin 300 micrograms or greater per gram
(ug/g) creatinine in urine; or
--
5 micrograms of cadmium or greater per liter (ug/L)
of whole blood
Benzene Phenol level of 75 milligrams or greater per
liter (mg/L) of urine or abnormal blood counts
Musculoskeletal
system Fractures of the bones or teeth Positive X-ray
and/or diagnosis by a health care provider
Musculoskeletal disorders Diagnosis by a health care
provider and/or objective finding(s) (e.g. positive
Tinel's, Phalen's or Finkelstein's test; or swelling,
redness indicative of inflammation, deformity, loss
of motion, etc.) Musculoskeletal disorders may occur
in the neck, back, shoulder, arm, hand, fingers, leg
and/or foot Examples of musculoskeletal disorders
include but are not limited to carpal tunnel syndrome,
tendinitis, epicondylitis, synovitis, thoracic root
lesions, Raynaud's syndrome, and tarsal tunnel syndrome
For
musculoskeletal disorders only, medical treatment
shall include two or more applications of hot/cold
therapy as directed by a health care provider
Sensory organs UV burning of the cornea or retina
Recognition/diagnosis of welder's flash or flashburn
Hearing loss An average shift of 15 decibels (dB)
or more at 2000, 3000, and 4000 hertz in one or both
ears. The change in hearing may be adjusted for presbycusis
(age related hearing loss). The record of the injury
or illness may be deleted if a retest performed with
30 days disproves the original shift. Once a 15 dB
shift has occurred, the baseline (for recordkeeping
purposes) should be adjusted to reflect this result.
A subsequent test revealing an additional 15 dB shift
from this new or revised baseline value is a new injury
or illness. Work-relationship is presumed if an employee
is exposed to an 8 hour time weighted average sound
level of noise equaling or exceeding 85 dB(A)
Skin Burns (heat, chemical and radiation burns) Third
degree burns (and first and second degree burns requiring
medical treatment beyond first aid, restricted work
activity, days away from work, loss of consciousness
or death)
Skin disorders Lasting beyond 48 hours, including
>but not limited to allergic or irritant contact
dermatitis
Lacerations Requiring closure including but not limited
to the use of sutures, adhesive closures and staples
Respiratory system Asthma and other obstructive airway
diseases -- Initial episode, regardless of duration,
diagnosed by a health care provider. Or
--
Any recurrent episode, regardless of duration, that
results in the administration of prescription drugs
and/or diagnosis by a health care provider
Note:
Obstructive airway diseases include but are not limited
to reactive airways dysfunction syndrome (RADS), chronic
obstructive pulmonary disease (COPD), and chronic
obstructive< bronchitis
Pneumoconiosis (e.g asbestosis, silicosis, coal worker's
pneumoconiosis, beryllium disease, etc.)
Diagnosis by a health care provider, radiography profusion
category of 1/1 or greater by the International Labor
Organization (ILO) classification system
Mesothelioma Diagnosis by a health care provider,
pleural plaques and/or pleural thickening
Byssinosis Diminished pulmonary function (an FEV1
of less than 80% of the predicted value)and/or diagnosis
by a health care provider when worker has been exposed
to dust from cotton or flax which has not undergone
wet treatments
Tuberculosis infection or disease First positive tuberculin
skin test reaction indicative of new infection, except
pre-placement; Or Diagnosis of active tuberculosis
by a health care provider. A case of tuberculosis
disease or tuberculosis infection is presumed to be
work-related in the following industries: correctional
facilities; health care facilities; homeless shelters;
long-term care facilities for the elderly; and drug
treatment centers. The employer may rebut this presumption
of work relationship by providing evidence that the
employee is known to have had a non-work exposure
to active TB. Examples include situations in which
(1) An employee is living in a household with a person
diagnosed with active TB or (2) the Public Health
Department lists the employee as a contact to a case
of active TB
For
all other industries a case would be considered work-related
under the following circumstance: An employee tests
positive for tuberculosis infection after being exposed
to a person within the work environment known to have
tuberculosis disease. The case of the person with
TB disease, however, would not be presumed work-related
if there was no known exposure within the work environment
Respiratory system Hypersensitivity pneumonitis (non-asthmatic
allergic breathing disorders caused by organic dust
and other antigenic aerosols)
Diagnosis by a health care provider of woodworker's
lung, farmer's lung, malt worker's lung, mushroom
worker's lung, cheese washer's lung, miller's lung,
etc. when the worker has been exposed to the relevant
substance
Toxic inhalation injury -- breathing disorders (such
as Metal Fume Fever)due to inhaling chemicals
Diagnosis by a health care provider and/or respiratory
distress requiring overnight hospitalization
Miscellaneous Bloodborne pathogen diseases Any workplace
bloodborne pathogen exposure incident (as defined
in 1910.1030(b)) that results in a positive blood
test or diagnosis by a health care provider indicating
AIDS, HIV seroconversion, hepatitis B or hepatitis
C; Or
Any
laceration or puncture wound that involves contact
with another person's blood or other potentially infectious
materials
Note:
to protect employee confidentiality, employers shall
record occupationally acquired bloodborne pathogen
diseases, such as hepatitis B, simply as the initial
bloodborne exposure incident and note the exposure
type (e.g. needlestick). Seroconversion and specific
type of bloodborne disease shall not be recorded
Hepatitis (toxic or infectious) Positive blood test
and/or diagnosis by a health care provider
Work-related
injuries and illnesses are recorded if they result
in death, loss of consciousness, days away from work,
restricted work activity, medical treatment beyond
first aid, or the criteria in this table.
Appendix
C to Part 1904 -- Decision Tree for Recording Occupational
Injuries and Illnesses
Appendix
C to Part 1904
Decision
Tree for Recording Occupational Injuries and Illnesses
Appendix
C to Part 1904 [PDF - 35k]
PART
1952 -- [AMENDED]
2.
The authority citation for Part 1952 continues to
read as follows:
Authority:
29 U.S.C. 667; 29 CFR Part 1902, Secretary of Labor's
Order No. 1-90 (55 FR 9033).
3.
Section 1952.4 would be revised to read as follows:
1952.4
Injury and illness recordkeeping and reporting requirements.
(a)
Injury and illness recordkeeping and reporting requirements
promulgated by State plans are required to be substantially
identical to 29 CFR Part 1904. State plans shall promulgate
recordkeeping and reporting requirements that are
identical to the Federal requirements for determining
the types of injuries and illnesses that will be entered
into the records and the manner in which they are
entered. All other recordkeeping and reporting requirements
that are promulgated by State plans shall be at least
as effective as the Federal requirements.
(b)
A State is not prohibited from requiring supplementary
reporting or recordkeeping data, but such additional
data must be approved by the Occupational Safety and
Health Administration to insure that there will be
no interference with the uniform reporting objectives.
(c)
Variances to State injury and illness recordkeeping
and reporting requirements under an approved plan
must be obtained from the Occupational Safety and
Health Administration of the U.S. Department of Labor.
Therefore, a State may not grant a variance to recordkeeping
and reporting requirements under their own procedures.
(d)
In order to insure the uniformity of the injury and
illness statistics, a State must recognize all variances
granted by the Occupational Safety and Health Administration.
[FR
Doc. 96-1942 Filed 2-1-96; 8:45 am]
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