[Federal Register: January 19, 2001 (Volume 66, Number 13)]
[Rules and Regulations]
[Page 5915-5964]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja01-21]
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Part IV
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1904 and 1952
Occupational Injury and Illness Recording and Reporting Requirements;
Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904 and 1952
[Docket No. R-02]
RIN 1218-AB24
Occupational Injury and Illness Recording and Reporting
Requirements
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
revising its rule addressing the recording and reporting of
occupational injuries and illnesses (29 CFR parts 1904 and 1952),
including the forms employers use to record those injuries and
illnesses. The revisions to the final rule will produce more useful
injury and illness records, collect better information about the
incidence of occupational injuries and illnesses on a national basis,
promote improved employee awareness and involvement in the recording
and reporting of job-related injuries and illnesses, simplify the
injury and illness recordkeeping system for employers, and permit
increased use of computers and telecommunications technology for OSHA
recordkeeping purposes.
This rulemaking completes a larger overall effort to revise Part
1904 of Title 29 of the Code of Federal Regulations. Two sections of
Part 1904 have already been revised in earlier rulemakings. A rule
titled Reporting fatalities and multiple hospitalization incidents to
OSHA, became effective May 2, 1994 and has been incorporated into this
final rule as Sec. 1904.39. A second rule entitled Annual OSHA injury
and illness survey of ten or more employers became effective on March
13, 1997 and has been incorporated into this final rule as
Sec. 1904.41.
The final rule being published today also revises 29 CFR 1952.4,
Injury and Illness Recording and Reporting Requirements, which
prescribes the recordkeeping and reporting requirements for States that
have an occupational safety and health program approved by OSHA under
Sec. 18 of the Occupational Safety and Health Act (the ``Act'' or ``OSH
Act'').
DATES: This final rule becomes effective January 1, 2002.
FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and
Health Administration, U.S. Department of Labor, Directorate of Safety
Standards Programs, Room N-3609, 200 Constitution Ave., NW, Washington,
DC 20210. Telephone (202) 693-2222.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
The following is a table of contents for this preamble. The
regulatory text and appendices follow the preamble. Documents and
testimony submitted to the docket (Docket R-02) of this rulemaking
are cited throughout this preamble by the number that has been
assigned to each such docket entry, preceded by the abbreviation
``Ex.,'' for exhibit.
II. The Occupational Safety and Health Act and the Functions of the
Recordkeeping System
III. Overview of the Former OSHA Recordkeeping System
IV. OSHA's Reasons for Revising the Recordkeeping Rule
V. The Present Rulemaking
VI. Legal Authority
VII. Summary and Explanation of the Final Rule
A. Subpart A. Purpose
B. Subpart B. Scope
C. Subpart C. Recordkeeping Forms and Recording Criteria
D. Subpart D. Other OSHA Injury and Illness Recordkeeping
Requirements
E. Subpart E. Reporting Fatality, Injury and Illness Information to
the Government.
F. Subpart F. Transition From the Former Rule
G. Subpart G. Definitions
VIII. Forms
A. OSHA 300
B. OSHA 300 A
C. OSHA 301
IX. State Plans
X. Final Economic Analysis
XI. Regulatory Flexibility Certification
XII. Environmental Impact Assessment
XIII. Federalism
XIV. Paperwork Reduction Act of 1995
XV. Authority
Regulatory Text of 29 CFR Part 1904 and 29 CFR Section 1952.4
II. The Occupational Safety and Health Act and the Functions of the
Recordkeeping System
Statutory Background
The Occupational Safety and Health Act (the ``OSH Act'' or ``Act'')
requires the Secretary of Labor to adopt regulations pertaining to two
areas of recordkeeping. First, section 8(c)(2) of the Act requires the
Secretary to issue 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)(1) of the Act also authorizes the Secretary of
Labor to develop regulations requiring employers to keep and maintain
records regarding the causes and prevention of occupational injuries
and illnesses. Section (2)(b)(12) of the Act states Congress' findings
with regard to achieving the goals of the Act and specifically notes
that appropriate reporting procedures will help achieve the objectives
of the Act.
Second, section 24(a) of the Act requires the Secretary to develop
and maintain an effective program of collection, compilation, and
analysis of occupational safety and health statistics. This section
also directs the Secretary to ``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.''
After passage of the Act, OSHA issued the required occupational
injury and illness recording and reporting regulations as 29 CFR part
1904. Since 1971, OSHA and the Bureau of Labor Statistics (BLS) have
operated the injury and illness recordkeeping system as a cooperative
effort. Under a Memorandum of Understanding dated July 11, 1990 (Ex.
6), BLS is now responsible for conducting the nationwide statistical
compilation of occupational illnesses and injuries (called the Annual
Survey of Occupational Injuries and Illnesses), while OSHA administers
the regulatory components of the recordkeeping system.
Functions of the Recordkeeping System
This revision of the Agency's recordkeeping rule is firmly rooted
in the statutory requirements of the OSH Act (see the Legal Authority
section of the preamble, below). OSHA's reasons for revising this
regulation to better achieve the goals of the Act are discussed in the
following paragraphs.
Occupational injury and illness records have several distinct
functions or uses. One use is to provide information to employers whose
employees are being injured or made ill by hazards in their workplace.
The information in OSHA records makes employers more aware of the kinds
of injuries and illnesses occurring in the workplace and the hazards
that cause or contribute to them. When employers analyze and review the
information in their records, they can identify and
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correct hazardous workplace conditions on their own. Injury and illness
records are also an essential tool to help employers manage their
company safety and health programs effectively.
Employees who have information about the occupational injuries and
illnesses occurring in their workplace are also better informed about
the hazards they face. They are therefore more likely to follow safe
work practices and to report workplace hazards to their employers. When
employees are aware of workplace hazards and participate in the
identification and control of those hazards, the overall level of
safety and health in the workplace improves.
The records required by the recordkeeping rule are also an
important source of information for OSHA. During the initial stages of
an inspection, an OSHA representative reviews the injury and illness
data for the establishment as an aid to focusing the inspection effort
on the safety and health hazards suggested by the injury and illness
records. OSHA also uses establishment-specific injury and illness
information to help target its intervention efforts on the most
dangerous worksites and the worst safety and health hazards. Injury and
illness statistics help OSHA identify the scope of occupational safety
and health problems and decide whether regulatory intervention,
compliance assistance, or other measures are warranted.
Finally, the injury and illness records required by the OSHA
recordkeeping rule are the source of the BLS-generated national
statistics on workplace injuries and illnesses, as well as on the
source, nature, and type of these injuries and illnesses. To obtain the
data to develop national statistics, the BLS and participating State
agencies conduct an annual survey of employers in almost all sectors of
private industry. The BLS makes the aggregate survey results available
both for research purposes and for public information. The BLS has
published occupational safety and health statistics since 1971. These
statistics chart the magnitude and nature of the occupational injury
and illness problem across the country. Congress, OSHA, and safety and
health policy makers in Federal, State and local governments use the
BLS statistics to make decisions concerning safety and health
legislation, programs, and standards. Employers and employees use them
to compare their own injury and illness experience with the performance
of other establishments within their industry and in other industries.
III. Overview of the Former OSHA Recordkeeping System
The OSH Act authorizes OSHA to require employers to keep records
and to report the recorded information to OSHA. However, the Agency
only requires some employers to create and maintain occupational injury
and illness records. Those employers who are required to keep records
must report on those records only when the government specifically asks
for the information, which occurs exclusively under limited
circumstances that are described below.
Employers covered by the recordkeeping regulations must keep
records of the occupational injuries and illnesses that occur among
their employees. To do so, covered employers must complete two forms.
First, the employer must maintain a summary form (OSHA Form 200,
commonly referred to as the ``OSHA Log,'' or an equivalent form) that
lists each injury and illness that occurred in each establishment
during the year. For each case on the Log, the employer also prepares a
supplementary record (OSHA Form 101, or an equivalent), that provides
additional details about the injury or illness. Most employers use a
workers' compensation First Report of Injury in place of the 101 form.
The Log is available to employees, former employees, and their
representatives. A Summary of the Log is posted in the workplace from
February 1 to March 1 of the year following the year to which the
records pertain. The Log and summary, as well as the more detailed
supplementary record, are available to OSHA inspectors who visit the
establishment.
The employer is only obligated to record work-related injuries and
illnesses that meet one or more of certain recording criteria. In
accordance with the OSH Act, OSHA does not require employers to record
cases that only involve ``minor'' injuries or illnesses, i.e., do not
involve death, loss of consciousness, days away from work, restriction
of work or motion, transfer to another job, medical treatment other
than first aid, or diagnosis of a significant injury or illness by a
physician or other licensed health care professional.
The language of the OSH Act also limits the recording requirements
to injuries or illnesses that are ``work-related.'' The Act uses, but
does not define, this term. OSHA has interpreted the Act to mean that
injuries and illnesses are work-related if events or exposures at work
either caused or contributed to the problem. Work-related injuries or
illnesses may (1) occur at the employer's premises, or (2) occur off
the employer's premises when the employee was engaged in a work
activity or was present as a condition of employment. Certain limited
exceptions to this overriding geographic presumption were permitted by
the former rule.
Although the Act gives OSHA the authority to require all employers
covered by the OSH Act to keep records, two major classes of employers
are not currently required regularly to keep records of the injuries
and illnesses of their employees: employers with no more than 10
employees at any time during the previous calendar year, and employers
in certain industries in the retail and service sectors.
Although the Act authorizes OSHA to require employers to submit
reports on any or all injuries and illnesses occurring to their
employees, there are currently only three situations where OSHA
requires an employer to report occupational injury and illness records
to the government. First, an employer must report to OSHA within eight
hours any case involving a work-related fatality or the in-patient
hospitalization of three or more employees as the result of a work-
related incident (former 29 CFR 1904.8, final rule 1904.39). These
provisions were revised in 1994 to reduce the reporting time for these
incidents from 48 hours to 8 hours and reduce the number of
hospitalized employees triggering a report from five workers to three
workers (59 FR 15594 (April 1, 1994)). Changes made to this section in
1994 have largely been carried forward in the final rule being
published today.
Second, an employer who receives an annual survey form from the
Bureau of Labor Statistics must submit its annual injury and illness
data to the BLS. The BLS conducts an annual survey of occupational
injuries and illnesses under 29 CFR 1904.20-22 of the former rule
(1904.41 of the final rule). Using a stratified sample, the BLS sends
survey forms to randomly selected employers, including employers who,
under Part 1904, would otherwise be exempt from the duty to keep the
OSHA Log and Summary. These otherwise exempt employers are required to
keep an annual record of the injuries and illnesses occurring among
their employees that are recordable under Part 1904 if the BLS contacts
them as part of the annual survey. At the end of the year, these
employers must send the results of recordkeeping to the BLS. The BLS
then tabulates the data and uses them to prepare national statistics on
occupational injuries and illnesses. The
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BLS survey thus ensures that the injury and illness experience of
employers otherwise exempted from the requirement to keep OSHA
records--such as employers with 10 or fewer employees in the previous
year and employers in certain Standard Industrial Classification (SIC)
codes--is reflected in the national statistics. In accordance with its
statistical confidentiality policy, the BLS does not make public the
identities of individual employers.
Finally, OSHA may require employers to send occupational injury and
illness data directly to OSHA under a regulation issued in 1997. That
section of this regulation is entitled Annual OSHA Injury and Illness
Survey of Ten or More Employers. It allows OSHA or the National
Institute for Occupational Safety and Health (NIOSH) to collect data
directly from employers. This section was published in the Federal
Register on February 11, 1997 (62 FR 6434) and became effective on
March 13, 1997. It has been included in this final rule as section
1904.41 without substantive change; however, this section has been
rewritten in plain language for consistency with the remainder of Part
1904.
IV. OSHA's Reasons for Revising the Recordkeeping Rule
OSHA had several interrelated reasons for revising its
recordkeeping rule. The overarching goal of this rulemaking has been to
improve the quality of workplace injury and illness records. The
records have several important purposes, and higher quality records
will better serve those purposes. OSHA also believes that an improved
recordkeeping system will raise employer awareness of workplace hazards
and help employers and employees use and analyze these records more
effectively. In revising its recordkeeping rule, the Agency also hopes
to reduce underreporting and to remove obstacles to complete and
accurate reporting by employers and employees.
A major goal of the revision has been to make the system simpler
and easier to use and understand and to update the data on which the
system is based. For example, OSHA has updated the list of partially
exempt industries to reflect the most recent data available. The
revisions to the final rule will also create more consistent statistics
from employer to employer. Further, by providing more details about the
system in the regulation itself and writing the rule in plain language,
fewer unintentional errors will be made and the records will be more
consistent. More consistent records will improve the quality of
analyses comparing the injury and illness experience of establishments
and companies with industry and national averages and of analyses
looking for trends over several years.
Another objective of the rulemaking has been to lessen the
recordkeeping burden on employers, reduce unnecessary paperwork, and
enhance the cost-effectiveness of the rule. The final rule achieves
this objective in several ways. It updates the partially exempt
industry list, reduces the requirement to keep track of lengthy
employee absences and work restrictions caused by work-related injuries
and illnesses and, above all, greatly simplifies the forms, regulatory
requirements, and instructions to make the system easier for employers
and employees to manage and use.
In this rulemaking, OSHA has also addressed some of the objections
employers have raised in the years since OSHA first implemented the
injury and illness recordkeeping system. For example, the final rule
includes a number of changes that will allow employers to exclude
certain cases, eliminate the recording of minor illness cases, and
allow employers maximum flexibility to use computer equipment to meet
their OSHA recordkeeping obligations.
OSHA is also complying with the President's Executive Memorandum on
plain language (issued June 1, 1998) by writing the rule's requirements
in plain language and using the question-and-answer format to speak
directly to the user. OSHA believes that employers, employees and
others who compile and maintain OSHA records will find that the plain
language of the final rule helps compliance and understanding.
Many of OSHA's goals and objectives in developing this final rule
work together and reinforce each other. For example, writing the
regulation in plain language makes the rule easier for employers and
employees to use and improves the quality of the records by reducing
the number of errors caused by ambiguity. In some cases, however, one
objective had to be balanced against another. For example, the enhanced
certification requirements in the final rule will improve the quality
of the records, but they also slightly increase employer burden.
Nevertheless, OSHA is confident that the final rule generally achieves
the Agency's goals and objectives for this rulemaking and will result
in a substantially strengthened and simplified recordkeeping and
reporting system.
The Need To Improve the Quality of the Records
The quality of the records OSHA requires employers to keep is of
crucial importance for anyone who uses the resulting data. Problems
with completeness, accuracy, or consistency can compromise the data and
reduce the quality of the decisions made on the basis of those data.
Several government studies, as well as OSHA's own enforcement history,
have revealed problems with employers' injury and illness recordkeeping
practices and with the validity of the data based on those records.
A study conducted by the National Institute for Occupational Safety
and Health (NIOSH) between 1981 and 1983 revealed that 25 percent of
the 4,185 employers surveyed did not keep OSHA injury and illness
records at all, although they were required by regulation to do so (Ex.
15:407-P).
A study of 192 employers in Massachusetts and Missouri conducted by
the BLS in 1987 reported that an estimated 10 percent of covered
employers did not maintain OSHA records at all, total injuries were
underrecorded by approximately 10 percent (even though both
overrecording and underrecording were discovered), lost workday
injuries were undercounted by 25 percent, and lost workdays were
undercounted by nearly 25 percent. Approximately half of the uncounted
lost workdays were days of restricted work activity, and the other half
were days away from work. Some of the underrecording was due to
employers entering lost time cases on their records as no-lost-time
cases (Exs. 72-1, 72-2).
Through its inspections of workplaces, OSHA has also discovered
that some employers seriously underrecord injuries and illnesses. In
cases where the inspector has found evidence that the employer
willfully understated the establishment's injury and illness
experience, OSHA has levied large penalties and fines under its special
citation policy for egregious violations. OSHA has issued 48 egregious
injury and illness recordkeeping citations since 1986 (Ex. 74).
As part of the OSHA Data Initiative (ODI), a survey allowing OSHA
to collect injury and illness data from employers to direct OSHA's
program activities, the Agency conducts Part 1904 records audits of 250
establishments each year. The following table shows the results of the
audits conducted to date.
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1996 Through 1998 OSHA Recordkeeping Audit Results *
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Data reference year (percent)
Error type --------------------------------
1996 1997 1998
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Cases not entered on employers Log............................................. 13.56 10.49 12.91
Lost workday cases recorded as non-lost workday cases.......................... 8.39 6.53 6.21
Non-lost workday cases recorded as lost workday cases.......................... (**) 2.10 1.94
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Total major recording errors............................................... 21.95 19.11 21.07
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Total cases recorded without major errors.................................. 78.05 80.89 78.93
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* The results were tabulated using unweighted data and should not be used to draw broad conclusions about the
recordkeeping universe.
** Data not calculated for 1996.
Source: OSHA Data Initiative Collection Quality Control: Analysis of Audits on 1996-1998 Employer Injury and
Illness Recordkeeping.
Explicit Rules Are Needed To Ensure Consistent Recording
When OSHA's recordkeeping regulation was first promulgated in 1971,
many 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 employers' recordkeeping obligations and
clarify several recordkeeping issues. The BLS 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 help
employers by providing detailed information on when and how to record
injury and illness cases on the recordkeeping forms. The supplemental
instructions clarified numerous aspects of the rule, including the
important recordability criteria that outline which injuries and
illnesses are work-related and thus recordable. This BLS Report was
revised and reissued in 1973, 1975, and 1978.
In response to requests from labor and industry, and after
publication in the Federal Register and a public comment period, the
BLS 412 report series was replaced in April of 1986 by the
Recordkeeping Guidelines For Occupational Injuries And Illnesses (the
Guidelines) (Ex. 2). The Guidelines contained an expanded question-and-
answer format similar to that of the BLS 412 report and provided
additional information on the legal basis for the requirements for
recordkeeping under Part 1904. The Guidelines provided clearer
definitions of the types of cases to be recorded and discussed employer
recordkeeping obligations in greater detail. The Guidelines also
introduced a number of exceptions to the general geographic presumption
that injuries and illnesses that occurred ``on-premises'' were work-
related to cover situations where the application of the geographic
presumption was considered inappropriate. Further, the Guidelines
updated the lists that distinguished medical treatment from first aid
and addressed new recordkeeping issues. The BLS also published a
shortened version of the Guidelines, entitled A Brief Guide to
Recordkeeping Requirements for Occupational Injuries and Illnesses (Ex.
7).
Although the 1986 edition of the Guidelines clarified many aspects
of the recordkeeping regulation, concerns persisted about the quality
and utility of the injury and illness data. In response to inquiries
from employers, unions, employees, BLS, and OSHA staff, the Agency
issued many letters of interpretation. These letters restated the
former rule's regulatory requirements, interpreted the rules as they
applied to specific injury and illness cases, and clarified the
application of those requirements. A number of these letters of
interpretation have been compiled and entered into the docket of this
rulemaking (Ex. 70). OSHA has incorporated many of the prior
interpretations directly into the implementation questions and answers
in the regulatory text of the final rule, so that all affected
employers will be aware of these provisions.
External Critiques of the Former Recordkeeping System
Because of concern about the injury and illness records and the
statistics derived from them, several organizations outside OSHA have
studied the recordkeeping system. The National Research Council (NRC),
the Keystone Center, and the General Accounting Office (GAO) each
published reports that evaluated the recordkeeping system and made
recommendations for improvements. OSHA has relied on these studies
extensively in developing this final rule.
The NRC Report
In response to concern over the underreporting of occupational
injuries and illnesses and inconsistencies in the national data
collected by the BLS, Congress appropriated funds in 1984 for the BLS
to conduct a quality assurance study of its Annual Survey of
Occupational Injuries and Illnesses. The BLS asked the National
Research Council (NRC) to convene an expert panel to analyze the
validity of employer records and the BLS annual survey, to address any
problems related to determining and reporting occupational diseases,
and to consider other issues related to the collection and use of data
on health and safety in the workplace.
In 1987, NRC issued its report, Counting Injuries and Illnesses in
the Workplace: Proposals for a Better System (Ex. 4). The report
contained 24 specific recommendations (Ex. 4, Ch. 8). In sum, the NRC
panel recommended that BLS take the following steps to improve the
recordkeeping system: (1) Modify the BLS Annual Survey to provide more
information about the injuries and illnesses recorded; (2) discontinue
the Supplementary Data System, replace it with a grant program for
States and individual researchers, and develop criteria for the detail
and quality of the data collected by the replacement system; (3)
conduct an ongoing quality assurance program for the Annual Survey to
identify underreporting by comparing the information on employers' logs
with data from independent sources; (4) implement a system of
surveillance for occupational disease, including the collection of data
on exposure to workplace hazards; (5) improve the collection of
national occupational fatality data; (6) implement an administrative
data system that would allow OSHA to obtain individual establishment
data to conduct an ``effective program for the prevention of
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workplace injuries and illnesses * * *''; and (7) thoroughly evaluate
recordkeeping practices in individual establishments, using additional
resources requested from Congress for that purpose to avoid diverting
resources from OSHA inspections of workplace hazards (Ex. 4, p. 10).
The Keystone Report
In 1987, The Keystone Center convened 46 representatives from labor
unions, corporations, the health professions, government agencies,
Congressional staff, and academia for a year-long dialogue to discuss
occupational injury and illness recordkeeping. Two years later,
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 Keystone report recommended that: (1) OSHA
and the BLS should revise various aspects of the recording criteria;
(2) OSHA should use injury and illness data to target enforcement
efforts; (3) the BLS should revise the Guidelines to make them easily
and uniformly understood; (4) the BLS should develop a national system
to collect and disseminate occupational injury and illness information;
and (5) OSHA and the BLS should broaden the type of information
collected concerning occupational illness and make the information
available to employees and government agencies for appropriate purposes
such as research and study.
The General Accounting Office (GAO) Study
An August 1990 report by the GAO, Options for Improving Safety and
Health in the Workplace (Ex. 3), discussed the importance of employer
injury and illness records. The GAO noted that these records have
several major uses. They help employers, employees and others
understand the nature and extent of occupational safety and health
problems. They help employers and employees identify safety and health
problems in their workplaces so that they can correct the problems.
They also enable 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 that there was ``possibly significant injury
and illness underrecording and subsequent underreporting'' (Ex. 3, p.
3). The GAO report gave three main reasons for inaccurate recording and
reporting: (1) Employers intentionally underrecord injuries and
illnesses in response to OSHA inspection policies or management safety
competitions; (2) employers unintentionally underrecord injuries and
illnesses because they do not understand the recording and reporting
system; and (3) employers record injuries and illnesses inaccurately
because they do not place a high priority on recordkeeping and do not
supervise their recordkeepers properly. The GAO report noted that
OSHA's revised enforcement procedures, which included increasing its
fines for recordkeeping violations and modifying its records-review
procedures, would likely help to improve the accuracy of recordkeeping.
The GAO recommended that the Department of Labor study the accuracy of
employers' records using independent data sources, evaluate how well
employers understand the revised Guidelines, and audit employers'
records in selected enforcement activities.
OSHA's Strategy for Improving the Quality of Records
OSHA has developed a four-part strategy to improve the quality of
the injury and illness records maintained by employers. The first
component is to provide information, outreach and training to employers
to make them more aware of the recordkeeping requirements, thereby
improving their compliance with these requirements. For example,
information on injury and illness recordkeeping is included in many of
OSHA's publications and pamphlets, on the OSHA CD-ROM, and on OSHA's
Internet site. OSHA personnel answer thousands of recordkeeping
questions each year in response to phone calls and letters. OSHA also
trains employers at the OSHA Training Institute in recordkeeping
procedures and provides speakers on this topic for numerous safety and
health events.
The second component is improved enforcement of the recordkeeping
requirements. OSHA continues to review employer records during many of
its workplace inspections. OSHA also audits the records of some
employers who submit data to OSHA under former section 1904.17
(recodified as section 1904.41 Requests from OSHA for Data in the final
rule). Although OSHA does not issue citations for minor reporting and
recording violations, the Agency does cite and fine employers when it
encounters serious or willful injury and illness recordkeeping
problems.
The third component of OSHA's overall plan is this revision of the
injury and illness recordkeeping rule. The revised final rule will
streamline the recordkeeping system by simplifying the forms and the
logic used to record an individual case. It will also consolidate the
instructions that were formerly contained in the rule itself, in the
Guidelines, and in many interpretative letters and memoranda. In
addition, the final rule will improve the quality of the injury and
illness records by changing several requirements to ensure that data
are entered correctly. OSHA has simplified and streamlined the
recordkeeping forms and processes to reduce errors. Other changes
include: (1) Simplifying and clarifying the definitions of terms such
as ``medical treatment,'' ``first aid,'' and ``restricted work'' to
reduce recording errors; (2) providing specific recordkeeping guidance
for specific types of injuries and illnesses; (3) including a detailed
discussion of the process of determining whether an injury or illness
is work-related; (4) giving employees greater involvement by improving
their access to records and providing a longer posting period for the
annual summary; (5) requiring higher level management officials to
certify the records; (6) adding a falsification/penalty statement to
the Summary; (7) adding a disclaimer to the Log to clarify that an
employer who records an injury or illness is not admitting fault,
negligence or liability for workers' compensation or insurance
purposes; and (8) requiring the employer to establish a process for
employees to report injuries and illnesses and to tell employees about
it, and explicitly prohibiting the employer from discriminating against
employees who report injuries and illnesses.
V. The Present Rulemaking
In 1995, the Keystone Center reassembled a group of business,
labor, and government representatives to discuss draft proposed changes
to the recordkeeping rule. OSHA shared its draft proposed revision of
the rule with the participants and the public. The draft was also
reprinted in several national safety and health publications. Written
comments generated by the on-going dialogue were used to help develop
the proposal and the final rule, and they are in the rulemaking record
(Ex. 12).
OSHA consulted with the Advisory Committee on Construction Safety
and Health (ACCSH) before issuing the
[[Page 5921]]
proposed rule. ACCSH made specific recommendations to OSHA for
improving the recordkeeping system as it applied to the construction
industry. OSHA gave the ACCSH recommendations careful consideration and
responded by modifying 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
also part of the public record (Ex. 10).
OSHA published a Notice of Proposed Rulemaking (NPRM) on February
2, 1996 (61 FR 23), giving formal notice that the Agency proposed to
revise the injury and illness recording and reporting regulations,
forms, and supplemental instructions (Ex. 14). The proposed rule
reflected a number of suggestions made by the Keystone participants and
ACCSH.
The NPRM invited all interested parties to submit comments on the
proposal to the docket by May 2, 1996. In response to requests from
members of the public, OSHA held two public meetings during the comment
period and extended the comment period to July 1, 1996.
OSHA received 449 written comments in response to the NPRM and
compiled 1200 pages of transcripts from 60 presentations made at the
public meeting. Comments and testimony were received from a broad range
of interested parties, including corporations, small business entities,
trade associations, unions, state and local governments, professional
associations, citizens groups, and safety and health organizations.
OSHA has carefully reviewed all of the comments and testimony in its
preparation of the final rule.
As described in greater detail below, the final rule revises OSHA's
regulation for the recording and reporting of work-related deaths,
injuries and illnesses. The rule is part of a comprehensive revision of
the OSHA injury and illness recordkeeping system.
The final rule becomes effective, on January 1, 2002. At that time,
the following recordkeeping actions will occur:
(1) 29 CFR Part 1904, entitled Recording and Reporting Occupational
Injuries and Illnesses, will be in effect.
(2) The State plan provisions in 29 CFR Part 1952, Section 1952.4,
entitled Injury and Illness Recording and Reporting Requirements will
be in effect.
(3) Three new recordkeeping forms will come into use:
(A) OSHA Form 300, OSHA Injury and Illness Log, and OSHA Form 300 A
Summary, which will replace the former OSHA Form 200, Log and Summary
of Occupational Injuries and Illnesses; and
(B) OSHA Form 301, OSHA Injury and Illness Incident Record, which
will replace the former OSHA Form 101, Supplementary Record of
Occupational Injuries and Illnesses.
(4) The following BLS/OSHA publications will be withdrawn:
(A) Recordkeeping Guidelines for Occupational Injuries and
Illnesses, 1986; and
(B) A Brief Guide to Recordkeeping Requirements for Occupational
Injuries and Illnesses, 1986.
(5) All letters of interpretation regarding the former rule's
injury and illness recordkeeping requirements will be withdrawn and
removed from the OSHA CD-ROM and the OSHA Internet site.
Provisions Not Carried Forward From the Proposal
Two proposed regulatory sections in OSHA's 1996 Notice of Proposed
Rulemaking (NPRM) have not been carried forward in this rulemaking.
They are: (1) Falsification of, or failure to keep records or provide
reports (Proposed section 1904.16), and (2) Subcontractor records for
major construction projects (Proposed section 1904.17).
Paragraphs (a) and (b) of proposed section 1904.16, ``Falsification
of, or failure to keep records or provide reports,'' were included in
the proposal because they had been included in the former rule. The
proposed section included a provision stating that employers may be
subject to criminal fines under section 17(g) of the Act for falsifying
injury and illness logs and may be cited and fined under sections 9,
10, and 17 of the Act for failure to comply with the recordkeeping
rule. Several commenters favored retention of this proposed provision
in the final rule because, in their view, OSHA needs strong enforcement
of the recordkeeping rule to make sure that employers keep accurate
records (see, e.g., Exs. 15: 11, 289). Others, however, objected to the
proposed provision (see, e.g., Exs. 15: 22, 335, 375). The views of
this latter group were reflected in a comment from the American
Petroleum Institute (Ex. 15: 375), which urged OSHA to delete this
section from the rule in its entirety because nothing like it is found
in any other OSHA regulation or standard. In the final rule, OSHA has
decided that this section is not needed to enforce the final rule, and
when need be, to issue citations and levy penalties.
The Keystone report recommended, and OSHA proposed, to require
construction employers to maintain ``site logs,'' or comprehensive
injury and illness records, for major construction projects. The
Keystone report noted that construction sites are normally composed of
multiple contractors and subcontractors, each of whom may be present at
the site for a relatively short period of time, and that no records of
the safety and health experience of the site are readily available,
either to OSHA or to employers and employees.
In an attempt to address this problem, the proposed provision would
have required site-controlling employers in the construction industry
to maintain a separate record reflecting the overall injury and illness
experience of employees working for sub-contract construction firms for
any construction site having an initial construction contract value
exceeding $1,000,000. The site-controlling employer would thus have
been required to record the injuries and illnesses of subcontractor
employees who were employed by construction employers with 11 or more
employees working at the site at any time during the previous calendar
year.
Many commenters strongly favored the addition of a construction
site log provision to the final rule (see, e.g., Exs. 20; 29; 35; 36;
45; 15: 48, 110, 113, 129, 136, 137, 141, 181, 224, 266, 278, 310, 350,
359, 369, 375, 394, 407, 413, 415, 418, 425, 438, 440). Several of
these commenters urged OSHA to expand this ``multi-employer'' log
concept to employers in other industries (see, e.g., Exs. 35; 15: 48,
113, 129, 369, 415, 418, 438). For example, the AFL-CIO (Ex. 15: 418)
encouraged OSHA to ``[e]xpand this recommendation to all industries. As
the Agency is well aware, safety and health problems related to multi-
employer worksites and contract work are a major concern in many
industries beyond construction. Many of the major chemical explosions
and fatalities at steel mills, power plants and paper mills have been
related to contract work. With more and more businesses contracting out
services for on-site activities, the safety and health concern
associated with these practices is growing.''
Other commenters argued that the proposed site log provisions
should be expanded to include injuries and illnesses to construction
employees working for employers who would otherwise be exempt from OSHA
recordkeeping requirements because they employ fewer than 11 workers
(see, e.g., Exs. 20; 15: 350, 359, 369, 407, 425). Two of these
commenters recommended adding a requirement to the final rule requiring
the site-controlling employer to assist smaller
[[Page 5922]]
employers with their records (Exs. 15: 350, 359).
Several commenters recommended adding provisions to the final rule
that would provide greater access to the construction site log by
employees (see, e.g., Exs. 15: 129, 310, 394) and by other employers
(see, e.g., Ex. 15: 310). Others recommended that OSHA include in the
final rule a requirement for the site-controlling employer to collect
the number of hours worked by each subcontractor to make it easier to
calculate each subcontractor's injury and illness rates (see, e.g.,
Exs. 15: 310, 369, 394), and some commenters recommended that the final
rule contain a requirement for subcontractors to report work-related
injuries and illnesses to the site-controlling employer (see, e.g.,
Exs. 15: 359, 369, 440).
The Building and Construction Trades Department (BCTD), AFL-CIO
discussed many of these issues while commenting in favor of site logs:
On the project level, the fragmentation of employers on
construction sites makes it impossible to assess fully safety and
health on a particular project. Since the origins of OSHA, injury
and illness recordkeeping has been the responsibility of each
individual employer. Nevertheless, the hazards of construction
activity are shared by employees across the site, and are not
specific to a single employer. Employees are often injured or made
ill by circumstances that are not under their own employer's full
control. The balkanization of recordkeeping contributes to the
failure of full and complete communication in construction.
What is needed, at a national and the project level, is a way to
record and count the injuries and illnesses that occur on specific
projects. We need to know about illnesses and injuries that are
associated with distinct types of construction activity, with the
various phases of construction, and with the methods, materials, and
hazards that are common to those types of work. Furthermore, we need
to develop a measure of injury and illness that spans employers, to
get a picture of the aggregate outcomes affecting all actors on a
common site. Only with such a tool can the construction industry
establish and meet performance benchmarks for safety and health.
Site logs would be useful to all of the actors in the
occupational safety and health arena. First, employers would benefit
from the collection of this data. General contractors increasingly
use safety and health information in selecting their subcontractors,
and in evaluating projects. Site logs will give them a new tool for
both self-evaluation and the evaluation of other contractors.
Similarly, subcontractors are often ignorant of the safety and
health performance of other contractors and the general contractor.
Site logs will lead to better information for all contractors on the
project.
Second, employees will benefit from site logs. The site log will
focus employers' attentions upon the risks and hazards that are
encountered across the worksite. By concretely illustrating that
hazards are everyone's problems, the site log will prompt employers
and employees to minimize those hazards and to maximize site safety
and health.
Third, owners will benefit from site logs. Today, many owners
are selecting contractors on the basis of the contractors' rates for
lost work days and total recordables. In many cases, these rates are
a poor measure for the owner's purpose. An owner's typical concern
is with how well a general contractor manages safety and health on
the entire site, not with how many injuries and illnesses occurred
within that contractor's own workforce. Site logs can be used to
measure the management performance of the general contractor, and
will greatly assist the owners in their quest for construction
safety.
Finally, OSHA will find the site logs to be enormously useful in
its efforts to become a ``data-driven'' agency. First, a project-
centric focus will allow OSHA to focus its enforcement and
consultation resources. Site logs will be useful to OSHA in
scheduling inspections during the phases of construction which
appear, through this data, to present the most risks, and in
focusing its inspections at construction sites, since the recent
illness and injury history of the entire site can be assayed by
examining a single document. By the same token, the information
revealed by the logs will assist OSHA in reaching out to employers
to provide consultative services. Site specific data will also aid
OSHA in developing safety and health standards that are
appropriately tailored to the risks and hazards of specific types of
construction.
The BCTD is convinced that private actors will use site logs to
improve safety and health performance. If OSHA establishes a
requirement that site logs be kept, the private marketplace will use
this new tool to the betterment of employee safety and health (Ex.
15: 394).
Other commenters opposed the addition of a site log provision to
the final rule (see, e.g., Exs. 43; 51; 15: 9, 17, 21, 38, 40, 43, 61,
67, 74, 77, 97, 111, 116, 119, 121, 126, 151, 155, 163, 170, 194, 195,
204, 213, 235, 242, 256, 260, 262, 263, 265, 269, 270, 281, 294, 298,
304, 305, 312, 314, 341, 342, 351, 356, 364, 377, 389, 395, 397, 401,
406, 412, 423, 433, 437, 443, 441). The most common argument presented
by these commenters was that records should only be kept by the
employer, and that one employer should not keep records for another
employer's employees (see, e.g., Exs. 15: 9, 116, 126, 163, 195, 204,
260, 262, 265, 281, 294, 304, 312, 314, 341, 342, 351, 364, 389, 395,
396, 397, 401, 406, 423, 433). The Jewell Coal and Coke Company (Ex.
15: 281) stated that:
[t]he sub-contractor should be responsible for keeping up with their
own employee injury/illness records as they are the ultimate
responsible party for their own employees under worker's
compensation regulations and in all other legal issues. This
proposal would appear to be trying to switch total responsibility to
the site controlling employer for that record keeping purpose and
taking the responsibility off the subcontractor with whom the
responsibility should lie. It is, we feel, unfairly discriminatory
against the site-controlling employer in this case and we are
strongly opposed to the wording of this proposal. Even the
alternative proposal in this section places the ultimate
responsibility upon the project owner for collection of accident and
illness information and send it to OSHA. Again we are strongly
opposed to the wording of this proposal because it takes the
responsibility for record keeping off the sub-contractor and places
the ultimate responsibility on the project owner, a responsibility
that we feel belongs to the sub-contractor irregardless of their
size.
Brown & Root, Inc. (Ex. 15: 423) added ``A site controlling
employer cannot be held responsible for determining which injuries and
illnesses of a subcontractor's employees are recordable. A contractor
cannot become involved in the medical records of employees who do not
work for him or her. The subcontractor employer has to be held
accountable and responsible for his own employees, this responsibility
cannot be delegated to another contractor. The number of employees or
the value of the construction project is irrelevant.''
Some of the commenters who generally opposed this provision agreed
that site-specific data would be useful if it could be collected by a
method that allowed each employer to keep its own records (see, e.g.,
Exs. 15: 9, 116, 195, 260, 262, 265, 304, 364, 401). Other commenters
pointed out that there would be problems in getting accurate data from
subcontractors (see, e.g., Exs. 15: 242, 263, 269, 270, 310, 314, 377,
395, 397, 406) or suggested that the site-controlling employer should
not be held responsible for the quality of the records received from
subcontractors (see, e.g., Exs. 33; 15: 176, 195, 231, 273, 294, 301,
305, 312, 351).
The Alabama Branch of the Associated General Contractors of
America, Inc. (AGC) cited difficulties associated with other regulatory
requirements that could result from the proposed OSHA site log
requirement:
This could place an undue hardship on the site controlling
employer far beyond his ability to appoint and manage independent
contractors and subcontractors without there being other entangling
both federal and state obligations, which would lead to the
subcontractor's employees being declared employees of the
controlling contractor. Many states use the common law to make a
determination of the employer/employee relationship, as well as the
Internal Revenue Service. This employee/employer relationship under
the common law usually
[[Page 5923]]
says if a controlling contractor exercises any control as to time,
place, method or result of a person's work that they are in fact
defacto employees of the controlling contractor, for social security
purposes and other state purposes. Therefore, I think it is shallow
thinking to believe that the general contractor with 100
subcontractors should have all 5,500 employees under their control
and avoid other legal entanglements, without the ability to actually
control the subcontractor.
The National Federation of Independent Business (NFIB) expressed
concern about the proposed site log provision as it would relate to
OSHA's multi-employer citation policy (Ex. 15: 304), and the Small
Business Administration (Exs. 51: 67, 437) argued that the proposed
requirement would require competing employers to share sensitive
business information.
A number of commenters objected to the requirement because of the
additional burden it would place on employers (see, e.g., Exs. 51; 15:
40, 43, 67, 77, 97, 119, 121, 163, 194, 204, 235, 242, 256, 263, 269,
270, 294, 298, 304, 312, 314, 356, 377, 389, 395, 397, 406, 412, 437,
441), arguing that the proposed requirement would result in duplication
(see, e.g., Exs. 51; 15: 9, 38, 67, 77, 119, 155, 204, 304, 312, 351,
356, 364, 377, 395, 397, 437). For example, the American Iron and Steel
Institute (Ex. 15: 395) stated that the proposed requirement would
place a ``near impossible burden on the `site controlling employer' ''
to determine the size of each subcontractor to decide which
subcontractors would be required to keep records.
A number of commenters also questioned the value of the statistical
data that would be produced by a site log requirement (see, e.g., Exs.
51; 15: 61, 62, 67, 74, 77, 97, 121, 151, 194, 312, 314, 351, 389, 395,
433, 437, 433), and several participants were concerned that the
records would not be useful for accident prevention purposes (see,
e.g., Exs. 15: 121, 151, 312, 351, 389, 433) .
OSHA received many comments addressing miscellaneous points related
to the proposed construction site log requirement. For example, some
commenters suggested limiting the scope of the project records required
to be maintained (see, e.g., Exs. 15: 17, 21, 111, 116, 213, 155),
while others argued that the proposed dollar threshold ($1 million) for
a covered construction project was too low and should be raised (see,
e.g., Exs. 15: 17, 111, 116, 441). Others suggested that the site log
requirement should be triggered by the time duration of the project
(Ex. 15: 116); the number of construction workers at the site (Ex. 15:
111); or include only construction employers with more than 11
employees (see, e.g., Exs. 15: 170, 213, 405). Some commenters urged
the Agency not to expand the site log concept beyond the construction
industry (see, e.g., Exs. 33; 15: 176, 231, 273, 301, 397). Finally,
several commenters urged OSHA to make any site log provision in the
final rule compatible with the corresponding provisions of the Process
Safety Management Standard (29 CFR 1910.119), especially if the site
log requirement in the recordkeeping rule was expanded beyond
construction (see, e.g., Exs. 33; 15: 159, 176, 231, 273, 301, 335).
Based on a thorough review of the comments received, OSHA has
decided not to include provisions in the final that require the site-
controlling employer to keep a site log for all recordable injuries and
illnesses occurring among employees on the site. OSHA has made this
decision for several reasons. First, such a provision would not truly
capture the site's injury and illness experience because many
subcontractors employ 10 or fewer employees and are therefore exempt
from keeping an OSHA Log. To require these very small employers to keep
records under Part 1904 for the periods of time they worked on a
construction site meeting the dollar threshold for this provision would
be a new recordkeeping burden. This would create considerable
complexity for these employers and for the site-controlling employer.
Second, under the Data Initiative (section 1904.41 of the final rule),
OSHA now has a means of targeting data requests for records of the
safety and health experience of categories of employers and can
therefore obtain the data it needs to establish inspection priorities
in a less administratively complex and less burdensome way when the
Agency needs such data. Third, OSHA was concerned with the utility of
the data that would have been collected under the proposed site log
approach, because of the time lag between collection of the data and
its use in selecting employers for inspections or other interventions.
In many cases work at the site would be complete before the data was
collected and analyzed. Finally, a site log requirement is not
necessary to enable general contractors to compare the safety records
of potential subcontractors since they can require such information as
a condition of their contractual arrangements without OSHA
requirements. For these reasons, the final rule does not contain a site
log provision.
The Use of Alternative Data Sources
Several commenters suggested that the Agency use data from existing
data sources, such as state workers' compensation agencies, insurance
companies, hospitals, or OSHA inspection files, instead of requiring
separate data for OSHA recordkeeping purposes (see, e.g., Exs. 15: 2,
28, 58, 63, 97, 184, 195, 289, 327, 341, 374, 444). For example, Alex
F. Gimble observed:
Since similar data are readily available from other sources,
such as the National Safety Council, insurance carriers, etc., why
not use these statistics, rather than go through this duplication of
effort at taxpayer expense? Another approach would be to utilize
data collected by OSHA and State Plan compliance officers during
site visits over the past 25 years (Ex. 15: 28).
Several commenters suggested that OSHA use injury and illness data
from the workers' compensation systems in lieu of employer records. The
comments of the American Health Care Association (AHCA) are
representative of the views of these commenters:
AHCA encourages OSHA to consider the use of workers'
compensation data in lieu of proposed OSHA 300 and 301 forms.
Pursuing the enactment of legislation that would allow OSHA access
to every state's workers' compensation data would eliminate the need
for employers to maintain two sets of records, provide OSHA with
necessary safety and health data, and ease administrative and cost
burdens now associated with recordkeeping for employers in every
industry across the country (Ex. 15: 341).
Ms. Diantha M. Goo recommended the use of injury and illness data
obtained from treatment facilities rather than the OSHA records:
The accuracy and usefulness of OSHA's reporting system would be
vastly improved if it were to shift responsibility from employers
(who have a vested interest in concealment) to the emergency rooms
of hospitals and clinics. Hospitals are accustomed to reporting
requirements, use the correct terminology in describing the accident
and its subsequent treatment and are computerized (Ex. 15: 327).
In response to these comments, OSHA notes that the injury and
illness information compiled pursuant to Part 1904 is much more
reliable, consistent and comprehensive than data from any available
alternative data source, including those recommended by commenters.
This is the case because, although some State workers' compensation
programs voluntarily provide injury and illness data to OSHA for
various purposes, others do not. Further, workers' compensation data
vary widely from state to state. Differing state workers' compensation
laws and administrative systems have resulted in
[[Page 5924]]
large variations in the content, format, accessibility, and
computerization of that system's data. In addition, workers'
compensation databases often do not include injury and illness data
from employers who elect to self-insure.
Additionally, most workers' compensation databases do not include
information on the number of workers employed or the number of hours
worked by employees, which means that injury and illness incidence
rates cannot be computed from the data. Workers' compensation data are
also based on insurance accounts (i.e., filed claims), and not on the
safety and health experience of individual workplaces. As a result, an
individual account often reflects the experience of several corporate
workplaces involved in differing business activities. Finally, as
discussed below in the Legal Authority section of the preamble, the OSH
Act specifically sets out the recordability criteria that must be
included in the OSHA recordkeeping system envisioned by the Congress
when the Act was passed. The Congress intended that all non-minor work-
related injuries and illnesses be captured by the OSHA recordkeeping
system, both so that individual establishments could evaluate their
injury and illness experience and so that national statistics
accurately reflecting the magnitude of the problem of occupational
injury and illness would be available.
Although OSHA disagrees that any of the alternate sources of data
are satisfactory substitutes for the information gathered under Part
1904, the Agency recognizes that data from these sources have value. To
the extent that information from workers' compensation programs, the
BLS statistics, insurance companies, trade associations, etc., are
available and appropriate for OSHA's purposes, OSHA intends to continue
to use them to supplement its own data systems and to assess the
quality of its own data. However, consistent with the Congressional
mandate of the OSH Act, OSHA must continue to maintain its own
recordkeeping system and to gather data for this system through
recording and reporting requirements applicable to covered employers.
Section 1952.4 Injury and Illness Recording and Reporting Requirements
The requirements of 29 CFR 1952.4 describe the duties of State-Plan
states to implement the 29 CFR 1904 regulations. These requirements are
discussed in Section IX of the preamble, State Plans, and in the
preamble discussion for section 1904.37, State recordkeeping
regulations.
General Issues Raised by Commenters
In addition to the issues discussed above, three issues concerning
recordkeeping warrant discussion: analysis of the data, training and
qualifications of recordkeepers, and recordkeeping software.
Analysis of the Data
During OSHA's public meetings, Eric Frumin of the Union of
Needletrades, Industrial and Textile Employees, AFL-CIO (UNITE) urged
OSHA to include a requirement for employers to analyze the OSHA 1904
data in depth to discover patterns and trends of occupational injury
and illness, stating that:
[y]ou're telling the employers to evaluate information that's coming
to them, and I say that to stress the point that's a very logical,
common sense requirement and you're not generally speaking asking
them to do that once they compile a log. You stop short of asking
employers to evaluate the log in toto, to look for the kinds of
trends and comparisons and so forth that we've been discussing here.
I think it's important for OSHA to consider some--making such a
requirement, particularly in light of a fairly consistent pattern of
testimony in this proceeding, wherein employers now do not analyze
what's on the log in much depth. * * * But what has emerged at the
end of the day is not a whole lot of use of the information on the
log for--in terms of analyzing it for trends and various
associations or conclusions about how to protect people, how to stop
the injuries and illness (Ex. 58X, pp. 372--375).
In the final rule, OSHA has not included any requirement for
employers to analyze the data to identify patterns or trends of
occupational injury and illness. OSHA agrees with Mr. Frumin that
analysis of the data is a logical outgrowth of maintaining records.
Employers and employees can use such analyses to identify patterns and
trends in occupational injuries and illnesses, and use that information
to correct safety and health problems in the workplace. OSHA encourages
both employers and employees to use the data for these purposes.
However, a requirement of this type would go beyond the scope of the
recording and reporting rule, which simply requires employers to keep
records of work-related injuries and illnesses, and report the data
under certain circumstances. OSHA believes that requirements of this
type are better addressed through an OSHA standard, rather than the
1904 recordkeeping regulation.
Training of Recordkeepers
The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) suggested that OSHA add requirements for the
training of the individual who maintains the 1904 records for the
employer, stating that:
[a]nother important issue relates to the qualifications and
responsibilities of the individual filling out the 300 log and Form
301. Most workplaces generally have a non-safety and health
professional entering this information in the 300 log after the
decision of a recordable injury or illness has been made. In our
view it is important that these individuals have proper training
about the recordkeeping rule and the employer's recordkeeping
system. In order to assure the most accurate and complete recording
of work-related injuries and illnesses, we encourage the Agency to
consider developing guidelines for the qualifications and training
of these individuals (Ex. 15: 418).
OSHA has not included a training requirement for the person
entering the information on the Part 1904 records in this final rule.
The Agency believes that the Section 1904.32 provisions of the final
rule calling for annual review of the records and certification of the
annual summary by a company executive will ensure that employers assign
qualified personnel to maintain the records and to see that they are
trained in that task. Further, because OSHA did not include training
requirements in its 1996 proposal, the Agency has not gathered
sufficient information in the rulemaking docket about whether specific
training provisions would have utility, as well as the appropriate
qualifications and training levels that would assist in writing such
provisions at this time.
As part of its outreach and training program accompanying this
rule, OSHA will be providing speeches and seminars for employers to
help them train their recordkeeping staff. OSHA will also be producing
materials employers can use to help train their recordkeeping staff,
including free software employers can use to keep records, training
programs, presentations, course outlines, and a training video. All of
these materials will be available through OSHA's Internet home page at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.osha.gov.
OSHA-Produced Recordkeeping Software
In its proposal (61 FR 4048), OSHA asked the public to comment on
whether or not OSHA should develop computer software to make injury and
illness recordkeeping easier for employers, and discussed the features
that would be desirable for such software. Those features were:
--decision-making logic for determining if an injury or illness is
recordable;
--automatic form(s) generation;
[[Page 5925]]
--the ability to assist the employer in evaluating the entered data
through several preset analytical tools (e.g., tables, charts, etc.);
and
--computer based training tools to assist employers in training
employees in proper recordkeeping procedures.
OSHA also suggested that any such software should be in the public
domain and/or be available at cost to the public and asked the
following questions: 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 share-ware distribution, or other channels? Should OSHA
develop the software or only provide specifications for its
requirements?
Several commenters said that most business establishments had
computers (see, e.g., Exs. 15: 9, 95, 163, 281, 288, 375). The American
Health Care Association (AHCA) estimated that 50% to 70% of their
members used computers (Ex. 15: 341), and Raytheon Constructors, Inc.
estimated that 60% of employers are using computers. OSHA agrees that
computers are available in most businesses, although certainly not all
of them. The agency also notes that these comments were made in 1996,
and that businesses' computer usage has grown since that time.
A number of commenters urged OSHA to produce and distribute
software to help employers keep the Part 1904 records (see, e.g., Exs.
35; 36; 51; 15: 9, 26, 32, 34, 67, 68, 76, 87, 95, 105, 109, 111, 129,
154, 157, 170, 181, 182, 197, 225, 235, 239, 247, 272, 277, 281, 283,
288, 303, 313, 327, 341, 347, 350, 352, 353, 356, 394, 405, 406, 409,
418, 426, 437, 438). The commenters gave various reasons for favoring
the provision of OSHA-provided software, including reducing the burden
and cost of the rule for employers (see, e.g., Exs. 15: 87, 95, 111,
170, 182, 197, 350), saving businesses programming costs (Ex. 15: 277),
helping small businesses (Ex. 51; 15: 67), resulting in more uniform
data (see, e.g., Exs. 36; 15: 32, 153, 170, 181, 347, 409, 418), and
facilitating analysis of the data (see, e.g., Exs. 35; 15: 153, 418).
For example, the Ford Motor Company stated that ``Ford feels that the
development of recordkeeping software by OSHA, which will employ a
decision-making logic, automatic form generation, the ability to assist
the employer in evaluating the entered data, and a tutorial section to
assist employers in training is necessary. This will enhance the
uniformity of data collection amongst all users, which is currently
lacking'' (Ex. 15: 347). The Muscatine Iowa Chamber of Commerce Safety
Committee (Ex. 15: 87) added that:
``[e]very feature identified as a minimum requirement would be a
great benefit to employers attempting to comply with the OSHA
recordkeeping requirements. Prompts which would in any way aid in
the determination of recordability would be appreciated by any
person without a great deal of experience in filing OSHA reports. We
feel these features are especially important now with the changes in
forms and information to be collected.''
Several of the commenters who urged OSHA to provide computer
software tempered their support by asking that the use of such software
should be optional and not mandatory (see, e.g., Exs. 15: 60, 109, 154,
198, 225, 247, 272, 303, 394), and several other commenters recommended
that OSHA provide both software and specifications so employers could
use the OSHA product to build their own data systems (see, e.g., Exs.
15: 170, 247, 283).
A number of commenters told OSHA that the Agency should not produce
software to help employers with their 1904 recordkeeping obligations
(see, e.g., Exs. 15: 78, 82, 85, 156, 163, 324, 348, 359, 363, 374,
375, 378, 402, 414). Several of these commenters suggested OSHA produce
software performance specifications for the industry (see, e.g., Exs.
15: 156, 163, 357, 387). The commenters had various reasons for
opposing the production of software. Several stated that each employer
wants different data in its own unique form (see, e.g., Exs. 15: 78,
85, 375, 414). For example, the Central Vermont Public Service
Corporation (Ex. 15: 85) stated that ``[b]usinesses using safety
related software use programs that can perform OSHA recordkeeping and
workers' compensation functions in one package. It is unlikely that
software developed by OSHA will perform workers' compensation functions
and therefore it will not be well received or utilized by business.''
Other commenters stated that OSHA should focus elsewhere, that the
private sector could produce software more economically (see, e.g.,
Exs. 15: 357, 375, 387), and that OSHA software is not needed (see,
e.g., Exs. 15: 363, 378). For example, the Synthetic Organic Chemical
Manufacturers Association, Inc. (SOCMA) stated that ``[a]n outside
organization with software development expertise should develop the
software. OSHA's limited resources should go directly toward improving
safety and health in the workplace'' (Ex. 15: 357). The Air Transport
Association added: ``[m]ost major companies have developed their own
software to support required OSHA recordkeeping, and others have taken
advantage of commercially available programs. We see no need for OSHA
to enter this market'' (Ex. 15: 378).
OSHA has decided that the Agency will produce software for
employers to use for keeping their OSHA 1904 records. There is
obviously a need for the Agency to provide outreach and assistance
materials for employers, particularly small employers, to help them
meet their obligations in the least burdensome way possible, and
software will clearly help achieve this goal. In addition, computer
software will improve the consistency of the records kept by employers,
and will assist them with analysis of the data. At this time, OSHA has
not developed the software or its specifications, but will make every
effort to produce and distribute software to assist employers by the
time this final rule becomes effective. Use of the OSHA produced
software will be optional; employers are not required to use this
software and may keep records using paper systems. Employers are also
free to produce their own software, or to purchase software.
VI. Legal Authority
A. The Final Recordkeeping Rule Is a Regulation Authorized by Sections
8 and 24 of the Act
The Occupational Safety and Health Act authorizes the Secretary to
issue two types of final rules, ``standards'' and ``regulations.''
Occupational safety and health standards, issued pursuant to section 6
of the Act, specify the measures to be taken to remedy known
occupational hazards. 29 U.S.C. 652(8), 655. Regulations, issued
pursuant to general rulemaking authority found, inter alia, in section
8 of the Act, are the means to effectuate other statutory purposes,
including the collection and dissemination of records on occupational
injuries and illnesses. 29 U.S.C. 657(c)(2).
OSHA is issuing this final recordkeeping rule as a regulation
pursuant to the authority expressly granted by sections 8 and 24 of the
Occupational Safety and Health Act, 29 U.S.C. 657, 673. Section 8
authorizes the Secretary to issue regulations she determines to be
necessary to carry out her statutory functions, including regulations
requiring employers to record and report work-related deaths and non-
minor injuries and illnesses.1 Section 8(c)(1) of the Act requires
each
[[Page 5926]]
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 ``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.''
---------------------------------------------------------------------------
1 This rule excludes minor or insignificant injuries and
illnesses from reporting requirements. The exclusion of minor
illnesses represents a change from the former rule, and is discussed
infra.
---------------------------------------------------------------------------
Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and
publish, whether 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.''
Section 24 contains a similar grant of regulatory authority. It
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.''
Section 20 of the Act, 29 U.S.C. 669, contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, ``and other information available,'' in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that ``[i]nformation obtained by the Secretary and the Secretary
of [HHS] under this section shall be disseminated by the Secretary to
employers and employees and organizations thereof.''
Two federal circuit Courts of Appeals have held that rules imposing
recordkeeping requirements are regulations and not standards, and are
thus reviewable initially in the district courts, rather than the
Courts of Appeals. Louisiana Chemical Assn. v. Bingham, 657 F.2d 777,
782-785 (5th Cir. 1981) (OSHA rule on Access to Employee Exposure and
Medical Records); Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1467-1469 (D.C. Cir. 1995) (OSHA rule on Reporting of Fatality or
Multiple Hospitalization Incidents). These courts applied a functional
test to differentiate between standards and regulations: standards aim
toward correction of identified hazards, while regulations serve
general enforcement and detection purposes, including those outlined in
section 8. E.g., Workplace Health & Safety Council, 56 F.3d at 1468.
See also United Steelworkers of America v. Reich, 763 F.2d 728, 735 (3d
Cir. 1985) (Hazard Communication rule is a standard because it aims to
ameliorate the significant risk of inadequate communication about
hazardous chemicals). Clearly, the recordkeeping requirements in this
final rule serve general administrative functions: They are intended to
``aid OSHA's effort to identify the scope of occupational safety and
health problems,'' to ``serve as the foundation for national statistics
on the number and rate of workplace injuries and illnesses'' and ``to
raise employers'' awareness of the kinds of injuries and illnesses
occurring in their workplaces.'' See Functions of the Recordkeeping
System, supra. Therefore, the final rule falls squarely within the
mandate of sections 8 and 24 of the Act and is properly characterized
as a regulation.
B. The Legal Standard: The Regulation Must Be Reasonably Related to the
Purposes of the Enabling Legislation
Under section 8, the Secretary is empowered to issue ``such * * *
regulations as [s]he may deem necessary to carry out [her]
responsibilities under this Act[,]'' including regulations requiring
employers to record and to make 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.'' 29 U.S.C. 657(g)(2), (c)(2). Similarly, section 24 directs the
Secretary to compile accurate statistics on ``all disabling serious, or
significant injuries and illnesses, whether or not involving loss of
time from work, other than minor injuries. * * *'' 29 U.S.C. 673(a).
Where an agency is authorized to prescribe regulations ``necessary'' to
implement a statutory provision or purpose, a regulation promulgated
under such authority is valid ``so long as it is reasonably related to
the enabling legislation.'' Mourning v. Family Publications Service,
Inc., 411 U.S. 356, 369 (1973).
Section 8(g)(2) is functionally equivalent to the enabling
legislation at issue in Mourning; therefore a reviewing court must
examine the final recordkeeping rule's relationship to the purposes of
section 8. Cf. Louisiana Chemical Assn. v. Bingham, 550 F. Supp. 1136,
1138-1140 (W.D. La. 1982), aff'd, 731 F.2d 280 (5th Cir. 1984) (records
access rule is directly related to the goals stated in the Act and
supported by the language of section 8).
C. The Final Recordkeeping Rule's Key Provisions Are Reasonably Related
to the Purposes of the OSH Act
The goal of this final rule, as stated in the Summary, is to
improve the quality and consistency of injury and illness data while
simplifying the recordkeeping system to the extent consistent with the
statutory mandate. To achieve this purpose, the final rule carries
forward the key elements of the existing recordkeeping scheme, with
changes designed to improve efficiency, equity, and flexibility while
reducing, to the extent practicable, the economic burden on individual
establishments. The central requirements in the final rule may be
summarized as follows: All non-exempt employers must record all work-
related, significant injuries and illnesses. As discussed below, OSHA's
approach to each of these elements--the scope of the exemptions from
recording requirements, the meaning of ``work-relationship,'' and the
criteria for determining whether an injury or illness is
``significant''--is reasonable and directly related to the statutory
language and purpose.
[[Page 5927]]
1. Exemptions From Recordkeeping Requirements
The final rule contains two categories of exemptions that,
together, relieve most employers of the obligation routinely to record
injuries and illnesses sustained by their employees. Section 1904.1
contains a ``very small-employer'' exemption: Employers need not record
injuries or illnesses in the current year if they had 10 or fewer
employees at all times during the previous year, unless required to do
so pursuant to Sections 1904.41 or 1904.42. Section 1904.2 contains a
``low-hazard industry'' exemption: Individual business establishments
are not required to keep records if they are classified in specific
low-hazard retail, service, finance, insurance, or real estate
industries.
a. The size-based exemption. Section 8(d) of the Act expresses
Congress' intent to minimize, where feasible, the burden of
recordkeeping requirements on employers, particularly small businesses:
``Any information obtained by the Secretary, the Secretary of [HHS], or
a State agency under this Act shall be obtained with a minimum burden
upon employers, especially those operating small businesses.
Unnecessary duplication of efforts in obtaining information shall be
reduced to the maximum extent feasible.'' 29 U.S.C. 657(d).
Since 1972, the Secretary has exempted very small businesses from
most recordkeeping requirements. On October 4, 1972, OSHA issued a
provision, codified at 29 CFR 1904.15(a), exempting employers from
routine injury and illness reporting requirements for the current year
if they had no more than seven employees during the previous year. The
exemption did not relieve these businesses from the obligation to
report fatality and multiple hospitalization incidents to OSHA and to
participate in the BLS annual survey when selected to do so. 37 FR
20823 (October 4, 1972). In 1977, the Secretary amended section 1904.15
to make it applicable to businesses having ten or fewer employees
during the year preceding the current reporting year. 42 FR 38568 (July
29, 1977). As support, the amendment cited the Department of Labor
appropriations acts for fiscal years 1975 and 1976, which exempted
employers having ten or fewer employees from most routine recordkeeping
requirements, and Section 8(d) of the Act. Id. The Secretary determined
that the amendment appropriately balanced the interest of very small
businesses while preserving the essential purposes of the recordkeeping
scheme:
The [exemption] has been carefully designed to carry out the
mandate of section 8(d) without impairing the Act's basic purpose.
Thus, the [exemption] will not diminish the protections afforded
employees under the Act because all employers * * * remain subject
to the enforcement provisions of the Act. The [exemption] will
continue to require * * * small employers * * * to report fatalities
and multiple hospitalizations and to participate in the BLS annual
survey when selected to do so.
42 FR 10016 (February 18, 1977).
In the present rulemaking, the Secretary proposed to enlarge the
scope of the exemption to include employers, in industries other than
construction, having 19 or fewer employees during the entire previous
calendar year. 61 FR 4057 (February 2, 1996). At the same time, the
proposal asked for public comment on whether ``the small employer
partial exemption [should] remain the same, be eliminated, or be
expanded?'' 61 FR 4043. In reaching a final decision on this matter,
the Secretary resolved two interrelated questions. First, she
determined that there is no sound basis for departing from OSHA's prior
interpretation that the Act permits a carefully crafted exemption for
very small employers. Second, she determined that limiting the
exemption to employers with ten or fewer employees effectuates
Congress' intent with the minimum degree of impairment to the overall
recordkeeping scheme. The first question is essentially one of
statutory construction, and is therefore considered below. The second
question calls for an analysis of the record and is addressed in the
preamble explanation for section 1904.1 of the final rule.
It is a fundamental principle of administrative law that an agency
which chooses to reverse a previously held position must supply a
``reasoned analysis'' of its decision. Motor Vehicle Mfgrs Assn. v.
State Farm Mutual Automobile Insurance Co., 463 U.S. 27, 42 (1983).
After careful consideration, the Secretary finds no persuasive basis
for eliminating the small-employer exemption in this rule. As a
threshold matter, nothing has changed the agency's long-held view that
section 8(d) permits a carefully tailored exemption from recordkeeping
requirements for very small businesses. 42 FR 10016 (February 18,
1977). This interpretation is consistent with the literal wording of
the statute and is further confirmed by the provisions in the
Department's appropriations acts for FY 1975 and 1976, exempting
employers with ten or fewer employees from routine recordkeeping and
reporting requirements. See 42 FR 5356 (January 28, 1977) (noting
restriction in FY 1975 and 1976 appropriations acts and stating OSHA
would continue to treat firms of up to 10 employees as exempt pending
permanent change in the regulations to expand the small-employer
exemption).
OSHA also concludes that a very small business exemption limited to
the routine recording and reporting of non-fatal injuries and illnesses
will not seriously undermine the recordkeeping system. OSHA explained
in Section I. of the preamble that there are three primary purposes for
recordkeeping and reporting requirements. First, the records are the
foundation for national statistics published by the BLS on the number
and rate of workplace injuries and illnesses, as well as their source,
nature and type. Second, the records provide information useful to
employers and employees in their efforts voluntarily to locate and
eliminate workplace safety and health hazards. Finally, the records are
useful to OSHA in targeting its enforcement efforts and in efficiently
conducting its safety and health inspections.
Exempting very small businesses from routine recordkeeping will not
significantly compromise these goals. The exemption has no effect upon
the obligation of these businesses to participate in the national
statistical survey administered by the BLS. See the discussion of
Sec. 1904.42 in Section V. Summary and Explanation. If a small business
is selected for participation in the survey, it must keep a log of
injuries and illnesses and make reports as required by the BLS. Id.
Thus, even the smallest firms continue to be represented in the
national injury and illness statistics.
The second purpose is not seriously compromised by the exemption
because injury and illness records are less necessary as an aid to
voluntary compliance efforts by very small employers and their
employees than they are for larger employers. OSHA's experience is
that, in establishments with only a few employees, management and
production personnel typically work in close concert. Because of their
size, such establishments also tend to record fewer occupational
injuries and illnesses. Accordingly, in very small firms, managers are
likely to have first-hand knowledge of those occupational injuries and
illnesses that occur in their workplaces. By the same token, it is
reasonable to believe that employees in very small firms are generally
aware of the injuries that occur in their workplaces and do not
[[Page 5928]]
rely heavily upon access to employer records to inform themselves about
occupational hazards. In short, review and analysis of injury and
illness records by very small business employers, or by their
employees, may not be required for awareness of workplace conditions.
Finally, routine injury and illness records are of limited
usefulness to OSHA in targeting and conducting inspections. Many OSHA
inspections are conducted in response to a specific complaint or
referral alleging unsafe conditions, or in response to a workplace
catastrophe or fatality. A large number of inspections are also
conducted under special emphasis programs at the national and local
level. The remaining inspections are conducted at specific worksites in
the construction industry and in other non-construction industries
selected under a planned schedule. Construction inspections are
selected using an econometric model that predicts the best time to
conduct an inspection at a specific construction project. The general
industry scheduled inspections are targeted primarily toward employers
with extremely high rates of occupational injury and illness, using
data supplied by employers to the OSHA Data Initiative (ODI) under the
requirements of former section 1904.17, Annual OSHA Injury and Illness
Survey of Ten or More Employers (now section 1904.41). Due to budget,
paperwork burden and logistical constraints, OSHA collects data only
from employers in high hazard industries, and has generally not
collected data from employers with fewer than 40 workers.
OSHA is also prohibited from conducting scheduled inspections of
employers with 10 or fewer employees in low hazard industries by an
annual rider on OSHA's appropriations bills which has been renewed
annually for many years. Thus, OSHA does not collect data from very
small employers, and they are excluded from the general industry
scheduled inspection program. Because very small firms have been wholly
excluded from the general schedule inspection program, the routine
injury and illness records of very small businesses have been of little
use to OSHA in targeting inspections. Should OSHA wish to include very
smaller employers in a special emphasis inspection program or other
initiative, the agency may require any business, regardless of its
size, to keep records and make reports as necessary. See 29 CFR
1904.41.
OSHA also finds that access to the Log and Incident Report would be
of little value to compliance officers in conducting inspections of
very small businesses initiated by a complaint or report of a fatality
or an accident resulting in multiple hospitalizations. OSHA has long
acknowledged that while injury and illness records are frequently
useful in identifying hazardous areas or operations within larger
establishments subject to programmed inspections, they are
significantly less important in the conduct of inspections in the
smallest businesses. As OSHA has stated, ``experience has shown that
when dealing with small employers, the injury and illness records * * *
are normally not needed by the CSHO to locate hazards during an
inspection. In those cases where log information may be needed, the
CSHO can easily obtain the information by interviewing the employees.''
42 FR 10016 (February 18, 1977). See also 47 FR 57699, 5700 (December
28, 1982) (in conducting complaint or fatality inspections, the hazard
information is usually provided by the complaint itself, or through
prompt investigation.) For these reasons, the Secretary believes that
an exemption for very small employers, reasonably tailored to the
purposes served by recordkeeping requirements, is appropriate.
b. The hazard-based exemption. Since 1982, OSHA has exempted from
routine recordkeeping requirements certain industries classified in
OMB's Standard Industrial Classification (SIC) Manual. The 1982
exemption was limited to establishments in SIC Industry Groups that (1)
were not subject to general schedule inspections, and (2) had average
lost workday case injury rates, as published by the BLS, at or below
75% of the national average. In 1982, the industry groups that met
these criteria were those classified as retail trade, finance,
insurance, real estate, and services--SIC codes 52-89, excluding 52-54,
70, 75, 76, 79, and 80. 47 FR 57699-57,700 (December 28, 1982).
The purpose of the exemption ``was to further OSHA's continuing
effort under section 8(d) of the Act to reduce the paperwork burden on
employers without compromising worker safety and health.'' 47 FR 57700.
Exempting low-hazard industries from routine record-keeping was
justified, OSHA explained, for the same reasons that warranted
exempting very small businesses. Injury and illness records from
establishments in the affected SIC codes were not of significant
benefit to OSHA because these industry groups were not then targeted
for general schedule inspections. Id. The records were not a
significant source of information for employers and employees because
BLS data showed that approximately 94% of all establishments in the
affected industry groups could be expected to have fewer than two
injuries per establishment on an annual basis. Id. Finally, the
exemption would not affect the reliability of safety and health
statistics because the affected establishments would continue to
participate in the BLS annual survey of occupational injuries and
illnesses. Id.
OSHA continues to believe that a properly tailored exemption for
low-hazard industries is appropriate. Congress intended in section 8(d)
to minimize the recordkeeping burden on all employers, not only small
businesses. Exempting from routine injury and illness reporting
requirements those employers whose records are unlikely to be of
significant benefit to OSHA, or to the employers and their employees,
serves this important interest. However, OSHA recognizes that the
balance between the interest of minimizing recordkeeping burdens and
that of ensuring accurate, reliable and useful information is a
delicate one. In the final rule, OSHA has substantially revised the
list of exempt low-hazard industries based upon more reliable three-
digit industry classification data. See the discussion of Sec. 1904.1,
in the following Summary and Explanation. With these changes, OSHA
believes that the rule strikes the appropriate balance.
2. The Meaning of ``Work-Relationship''
Section 8 of the Act directs the Secretary to prescribe regulations
requiring employers to ``maintain accurate records of * * * work-
related deaths injuries and illnesses [of a non-minor nature]. 29
U.S.C. 657(c)(2). The definition of work-relationship in section 1904.5
of the final rule is consistent, in all but one respect, with the
definition in the Guidelines to the former rule. The final rule states
that an injury or illness is work-related ``if an event or exposure in
the work environment either caused or contributed to [it] or
significantly aggravated a pre-existing injury or illness. Work-
relatedness is presumed for injuries and illnesses resulting from
events or exposures occurring in the work environment, unless an
exception listed in section 1904.5(b)(2) specifically applies''
(emphasis added).
The Guidelines state that, ``[i]f an event * * * occurred in the
work environment that caused or contributed to the injury'', the case
would be recordable, assuming it meets the other requirements for
recordability. Ex. 2 at
[[Page 5929]]
p. 32 (original emphasis). Further instructions in the Guidelines
provided that:
The general rule is that all injuries and illnesses which result
from events or exposures occurring to employees on the employer's
premises are presumed to be work related. This presumption is
rebuttable. * * * However, the nature of the activity which the
employee is engaged in at the time of the event or exposure, the
degree of employer control over the employee's activity, the
preventability of the incident, or the concept of fault do not
affect the determination.
Ex. 2 at p. 34 (original emphasis). The only significant difference
between the final rule and the former rule is that the final rule
requires that work ``significantly'' aggravate a pre-existing injury or
illness before the case is recordable.
OSHA's approach to work-relationship in both the former and the
final recordkeeping rules reflects two important principles. The first
is that work need only be a causal factor for an injury or illness to
be work-related. The rule requires neither precise quantification of
the occupational cause, nor an assessment of the relative weight of
occupational and non-occupational causal factors. If work is a
tangible, discernible causal factor, the injury or illness is work-
related. The second principle is that a ``geographic presumption''
applies for injuries and illnesses caused by events or exposures that
occur in the work environment. These injuries and illnesses must be
considered work-related unless an exception to the presumption
specifically applies.
The final rule's geographic presumption reflects a theory of
causation similar to that applied by courts in some workers'
compensation cases. Under the ``positional-risk'' test, an injury may
be found to ``arise out of'' employment for compensation purposes if it
would not have occurred but for the fact that the conditions and
obligations of employment placed the claimant in the position where he
or she was injured. See 1 Larson's Workers' Compensation Law section
6.50 (1977). Accord, Odyssey/Americare of Oklahoma v. Worden, 948 P.2d
309, 311 (Okla. 1997). Under this ``but for'' approach to work-
relationship, it is not necessary that the injury or illness result
from conditions, activities or hazards that are uniquely occupational
in nature. Accordingly, the presumption encompasses cases in which an
injury or illness results from an event at work that is outside the
employer's control, such as a lightning strike, or involves activities
that occur at work but that are not directly productive, such as
horseplay.
The proposed rule asked for comment on whether OSHA should abandon
its historic approach and adopt a new test for determining work-
relationship. 61 FR 4044, 4045. The proposal outlined three alternative
tests in which the determination of work-relationship turned on the
degree to which the injury or illness was linked to occupational
causes, as compared with personal factors such as off-the job
activities, aging, or pre-existing medical conditions. Two of these
alternative tests required evidence of a high degree of work causation
to establish work-relationship. Alternative 1 required that
occupational factors be the ``sole cause'' of the injury or illness;
any evidence of non-work related causal factors was sufficient to
exclude the case. Alternative 2 required that occupational factors be
the ``predominant cause'' before the case could be considered work-
related. See 61 FR 4044. Some commenters suggested a modification to
Alternative 2 that would have involved substitution of the word
``substantial'' or ``significant'' for ``predominant.''
The third alternative test was significantly more expansive than
that adopted in the final rule. Under Alternative 3, an injury or
illness would be considered work-related if the work environment had
any possibility of playing a causal role. 61 FR 4044.
Some commenters favored a somewhat different test for work-
relationship that focused on the nature of the injury-causing event in
the workplace. This test would include in the OSHA records only those
cases resulting from uniquely occupational or job-related activities or
processes. Supporters of this approach argued that it would exclude
injuries and illnesses caused by factors at work that are unrelated to
production tasks, or that are unpreventable by the employer's safety
and health program.
After careful consideration of the record, OSHA believes that the
final rule's test for work-relationship is both more consistent with
the Act's purpose and more practical than the ``quantified occupational
cause'' tests or the ``unique occupational conditions'' test. The
language of the statute itself indicates that Congress did not intend
to give ``work-related'' a narrow or technical meaning, but rather
sought to cover a variety of causal relationships that might exist in
workplaces. Section 2 of the Act addresses injuries and illnesses
arising out of ``work situations.'' Sections 2(b)(1), 2(b)(2), and
2(b)(4) refer to ``places of employment,'' and to the achievement of
safe and healthful ``working conditions.'' Section 2(b)(7) seeks to
assure that no employee will suffer diminished health or life
expectancy as a result of his ``work experience.'' Section 2(b)(12)
states that one of the Act's purposes is to provide for reporting
procedures which ``accurately describe the nature of the occupational
safety and health problem.'' Section 2(b)(13) encourages joint labor-
management efforts to reduce injuries and disease ``arising out of
employment.''
This conclusion is further supported by the Act's stated purpose to
promote research into the causes and prevention of occupational
injuries and illnesses. Section 2 of the Act establishes Congress'
intent to improve occupational safety and health, inter alia, by:
Providing for research in the field of occupational safety and
health, including the psychological factors involved, and by
developing innovative methods, techniques and approaches for dealing
with occupational safety and health problems. 29 U.S.C.
Sec. 651(b)(5)
[E]xploring 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. Sec. 651(b)(6).
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. Sec. 651(b)(12).
The legislative history of the Act demonstrates Congress' awareness
of the importance of developing information for future scientific use.
The Committee Report accompanying the Senate bill reported to the floor
noted that,
[i]n the field of occupational health, the view is particularly
bleak, and due to the lack of information and records, may well be
considerably worse than we currently know. * * * Recent scientific
knowledge points to hitherto unsuspected cause-and-effect
relationships between occupational exposures and many of the so-
called chronic diseases--cancer, respiratory ailments, allergies,
heart disease, and others. In some instances, the relationship
appears to be direct: asbestos, ionizing radiation, chromates, and
certain dye intermediaries, among others, are directly involved in
the genesis of cancer. In other cases, occupational exposures are
implicated as contributory factors. The distinction between
occupational and non-occupational illnesses is growing increasingly
difficult to define.
S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), reprinted in
Subcommittee on Labor of the Senate Committee on Labor and Public
Welfare, Legislative History of the Occupational Safety and Health Act
of 1970 (Committee Print 1971) at
[[Page 5930]]
142 (Leg. Hist.). With this background in mind, the committee stated
that it ``expects the Secretary of Labor and the Secretary of [HHS]
will make every effort through the authority to issue regulations and
other means, to obtain complete data regarding the occurrence of
illnesses, including those resulting from occupational exposure which
may not be manifested until after the termination of such exposure.''
Leg. Hist. at 157.
Both the Senate and the House Committees expressed concern that the
statute not be interpreted in a way that would result in under-
reporting of injuries and illnesses. The Senate report states:
The committee recognizes that some work-related injuries or
ailments may involve only a minimal loss of work time or perhaps
none at all, and may not be of sufficient significance to the
Government to require their being recorded or reported. However, the
committee was also unwilling to adopt statutory language which, in
practice might result in under-reporting. The committee believes
that records and reports prescribed by the Secretary should include
such occurrences as work-related injuries and illnesses requiring
medical treatment or restriction or reassignment of work activity,
as well as work-related loss of consciousness.
Leg. Hist. at 157. The House Report similarly noted that while some
injuries and illnesses might not be of enough value to require
recordation, ``the greater peril'' lay in allowing under reporting.
Leg. Hist. at 860. Therefore, the report added, ``[the] language `all
work-related injuries, [and illnesses]' should be treated as a minimum
floor. * * *''
In light of these purposes, it is apparent that Congress did not,
in Section 8, mean to limit recordable ``work-related'' injuries and
illnesses only to those caused primarily or substantially by work. It
is evident from the statute that Congress wanted employers to keep
accurate records of non-minor injuries and illnesses, in part, to serve
as a basis for research on the causes and prevention of industrial
accidents and diseases. This research is needed, among other reasons,
to further examine and understand those occupational factors implicated
as contributory causes in injuries and diseases. To serve this purpose,
the records should include cases in which there is a tangible
connection between work and an injury or illness, even if the causal
effect cannot be precisely quantified, or weighed against non-
occupational factors.
The first two alternative quantification theories outlined in the
preamble would exclude important information from the records. These
theories would eliminate cases in which the work environment is
believed to have played a definite role in the accident or the onset of
disease, but not enough is known to quantify the effect of work factors
or to assess the relative contribution of work and non-work factors.
However, the information provided by cases having a tangible, yet
unquantifiable, connection with the work environment is useful to
employers, employees and researchers and thus serves the recordkeeping
purposes envisioned by Congress.
On the other hand, the third alternative theory in the proposal
would sweep too broadly. A work-relationship test that is met if work
has ``any possibility of playing a role in the case'' would include
virtually every injury or illness occurring in the work environment. 61
Fed. Reg. 4044. Recording cases in which the causal connection to work
is so vague and indefinite as to exist only in theory would not
meaningfully advance research, or serve the other purposes for
requiring recordkeeping. For these reasons, OSHA has rejected the three
alternative theories outlined in the proposal.
The ``unique occupational activity'' test, which some commenters
favored instead of the geographic presumption, would limit recorded
injuries and illnesses to those caused by an activity or process
peculiarly occupational in nature. Supporters of this approach
identified several types of cases that would be work-related under the
geographic presumption, but not recordable under an activities-based
approach. These include cases in which the injury or illness was not
caused by the physical forces or hazards unique to industrial
processes, cases in which the employee was not injured while performing
an activity or task directly related to production, and cases in which
the injury or illness was not preventable by the employer.
The ``unique occupational activity'' test is unsuitable for
essentially the same reasons that militate against the first two
alternatives described in the proposal. The statutory language and
purpose do not reflect a Congressional intent to limit recording only
to those cases resulting from uniquely occupational hazards or
activities. Rather, the statute shows that Congress knew that employees
were being injured and made ill in a variety of ways and under a
variety of circumstances, and wanted employers to record all cases
causally related to the work environment. The ``but-for'' theory
underlying the geographic presumption is a widely accepted legal test
for causation and is consistent with the statutory language and
purpose.
The ``unique occupational activities'' test, like the
``quantification'' tests, would likely result in exclusion of important
information from the records. An activity-based test for work-
relationship could obscure the role of factors in the work environment
not directly linked to production, such as violence perpetrated by
employees and others or tuberculosis outbreaks. In addition, the
precise causal mechanism by which an employee has been injured or made
ill at work may not be known at the time of the accident, or may be
misunderstood. To serve the statute's research purposes, the records
must reflect not only those injuries and illnesses for which the
precise causal mechanism is apparent at the time of recordation, but
also those for which the mechanism is imperfectly understood. The
alternative approaches to work-relationship would severely limit the
usefulness of injury and illness data for research purposes,
particularly research to uncover latent patterns of health impairment
and disease and to establish causal connections between diseases and
exposure to particular hazards.
The Occupational Safety and Health Review Commission has affirmed
the approach to work-relationship taken in the former rule. General
Motors Corp., Inland Div., 8 O.S.H. Cas. (BNA) 2036, 2039-2040 (August
29, 1980). The issue in General Motors was whether the employer was
required to record respiratory ailments of three employees, based on
notations from the employees' treating physicians that their ailments
were probably related to exposure to a chemical substance at work. The
Commission rejected the employer's argument that the recordkeeping rule
required recording only of illnesses directly caused by work
activities, stating:
To accept Respondent's interpretation would impose a static view
of scientific knowledge. Only illnesses in which the known cause was
the occupational environment would be recorded. Unknown medical
correlations between disease and the workplace would be obscured by
this inadequate recording obligation. Under this interpretation of
the statute and regulations, OSHA and NIOSH would be significantly
restrained from fulfilling their statutory obligation of making the
workplace healthier. * * * [T]he primary purpose of the recording
obligation is to develop information for future scientific use.
8 O.S.H. Cas. at 2040. Accordingly, OSHA believes that there is a sound
legal basis for the definition of work-relationship in the final rule.
[[Page 5931]]
There are also sound policy justifications. The approach to ``work-
relationship'' adopted in the final rule is more cost-effective than
the alternative approaches and will result in more accurate injury and
illness data. OSHA expects that for each reported injury or illness,
employers generally will be able to apply the geographic presumption
more easily and quickly than a test requiring an assessment of the
relative contribution of employment and personal causes. The
incremental reduction in the time necessary to complete each entry,
when multiplied by the total number of entries per year, will result in
a substantial cumulative saving in paperwork burden in comparison to
the burden that would be imposed by the alternatives.
The geographic presumption will also produce more consistent and
accurate reporting. OSHA believes that it would be difficult to measure
the precise degree to which personal and occupational factors cause
accidents or illnesses. Accordingly, any test requiring that job duties
or tasks be ``significant'' or ``predominant'' causative factors would
necessarily involve a high degree of subjective judgment. There is
likely to be substantial inconsistency, both in the treatment of
successive, similar cases by the same employer, and in the treatment of
such cases among different employers. Moreover, such a test would fail
to capture cases in which the workplace contribution to an injury or
illness was imperfectly known or misunderstood at the time the case was
reported. Recording all cases caused by events or exposures at work,
with only limited exceptions, produces data that enables OSHA,
employers and others to better understand the causal relationships
present in the work environment. Although OSHA has not adopted a test
for determining significant contribution by work, the final rule does
include provisions to make sure that workplace aggravation of a pre-
existing injury must be significant before work relationship is
established (see discussion of 1904.5(b)(4)).
A number of commenters argued that because OSHA's mission is to
eliminate preventable occupational injuries and illnesses, the
determination of work-relatedness must turn upon whether the case could
have been prevented by the employer's safety and health program. Dow
expressed this view as follows:
[T]he goal of this recordkeeping system should be to accurately
measure the effectiveness of safety and health programs in the
workplace. Activities where safety and health programs could have no
impact on preventing or mitigating the condition should not be
logged and included in the Log and Summary nor used by OSHA to
determine its inspection schedule. If the event was caused by
something beyond the employer's control, it should not be considered
a recordable event that calls into question a facility's safety and
health program. * * * Credibility in this regulation rests on
whether the recorded data accurately reflects the safety and health
of the workplace. Including events where the workplace had virtually
no involvement undermines the credibility of the system and results
in continued resistance to this regulation.
Ex. 15-335B. The law firm of Constangy, Brooks and Smith, LLC,
urged OSHA to adopt the second alternative definition in the proposal
because cases that are ``predominantly caused by workplace conditions''
are the ones most likely to be preventable by workplace controls. They
stated, ``[s]ince OSHA's ultimate mission is the prevention of
workplace injuries and illnesses, it is reasonably necessary to require
recording only when the injury or illness can be prevented by the
employer.'' Ex. 15-345.
OSHA believes that these comments reflect too narrow a reading of
the purposes served by injury and illness records. Certainly one
important purpose for recordkeeping requirements is to enable
employers, employees and OSHA to identify hazards that can be prevented
by compliance with existing standards or recognized safety practices.
However, the records serve other purposes as well, including
facilitating the research necessary to support new occupational safety
and health standards and to better understand causal connections
between the work environment and the injuries and illnesses sustained
by employees. As discussed above, these purposes militate in favor of a
general presumption of work-relationship for injuries and illnesses
that result from events or exposures at the worksite, with exceptions
for specific types of cases that can be safely excluded without
significantly impairing the usefulness of the database.
3. The Criteria for Determining the Significance of an Injury or
Illness
Section 1904.7 of the final rule sets forth the criteria to be used
by employers in determining whether work-related occupational injuries
and illnesses are significant, and therefore recordable. Under
Sec. 1904.7, a work-related injury or illness is significant for
recordkeeping purposes if it results in any of the following: death,
days away from work, restricted work or transfer to another job,
medical treatment beyond first aid, or loss of consciousness. Employers
must also record any significant injury or illness diagnosed by a
physician or other licensed health care professional even if it does
not does not result in the one of the listed outcomes. OSHA's
definition of a ``significant'' injury or illness in this context is
based on two key principles discussed below. The first is that the
requirement for recording only significant cases applies equally to
``injuries'' and ``illnesses'' for recordkeeping purposes. The second
principle is that the criteria expressly mentioned in the Act, such as
death, loss of consciousness or restriction of work, are mandatory but
not exclusive indicia of significance; any significant injury or
illness diagnosed by a physician or other licensed health care
professional must also be recorded. These two principles are addressed
below, while the definitions applicable to the specific criteria
themselves, and related evidentiary issues, are discussed in the
preamble explanation for section 1904.7.
a. The significant case requirement applies equally to injuries and
illnesses; employers are no longer to report insignificant illnesses.
OSHA distinguishes between injuries and illnesses based on the nature
of the precipitating event or exposure. Cases which result from
instantaneous events are generally considered injuries, while cases
which result from non-instantaneous events, such as a latent disease or
cumulative trauma disorder, are considered illnesses. Id.
Under the former recordkeeping regulations, occupational injuries
had to be recorded if they were non-minor in nature; that is, if they
resulted in loss of consciousness, or required medical treatment, time
off work, restriction of work, lost time, or transfer to another job.
61 FR 4036. However, all occupational illnesses had to be reported,
regardless of severity. Id. This difference in the severity threshold
for recording injuries and illnesses had, in the past, been based upon
the particular phrasing of section 8(c)(2) of the Act:
The Secretary * * * 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.''
29 U.S.C. 657(c)(2). Because the severity criteria appear in the
clause defining ``minor injuries,'' OSHA had construed the section to
require recordation of all work-related illnesses, even those that do
not meet the severity
[[Page 5932]]
characteristics expressly applicable to ``injuries.''
OSHA has reconsidered its position in this rulemaking, and has
concluded that the former rule was inappropriate in several respects.
First, although the severity characteristics listed in section 8(c)(2)
of the Act apply expressly to ``injuries,'' the Act contains persuasive
indications that Congress also meant to require recordation only of
``significant'' illnesses, as determined by reasonable criteria.
Section 24(a) states that ``[t]he Secretary shall compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses * * * other
than minor injuries requiring only first aid treatment and which do not
involve medical treatment * * * .'' 29 U.S.C. 673 (a). The legislative
history also supports this view. The statement of the House managers on
the resolution of conflicting House and Senate bills states that:
A Senate bill provision without a counterpart in the House
amendment permitted the Secretary to require an employer to keep
records and make reports on ``all work-related deaths, injuries and
illnesses.'' The House receded with an amendment limiting the
reporting requirement to injuries and illnesses other than of a
minor nature, with a specific definition of what is not of a minor
nature.
Leg. Hist. at 1190 (emphasis supplied). The former rule did not
appropriately implement this intent. In the first place, OSHA's prior
interpretation that section 8(c)(2) limits the applicability of the
listed severity criteria only to injuries does not necessarily mean
that illnesses must be recorded without regard to their significance.
As a textual matter, such a reading simply leaves open the question of
what, if any, severity criteria apply to illnesses.
OSHA believes that the Act does not support a different severity
threshold for injuries than for illnesses. OSHA is now persuaded that
its prior reading of section 8(c)(2) placed too much emphasis on the
fact that the severity criteria modify the word ``injuries'' in the
clause, ``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.'' 29 U.S.C.
657(c)(2). Congress' failure to list specific severity criteria for
illnesses, as it did for injuries, does not, in itself, compel the
inference that two different sets of criteria must apply. Congress
meant to limit recordation to significant injuries and illnesses alike,
and absent strong indications to the contrary, it is reasonable to
presume that Congress meant the same severity threshold to apply to
both conditions.
In addition, there are strong policy reasons for avoiding a
distinction between injuries and illnesses based on severity. OSHA
explained in the proposal that the current distinction between injuries
and illnesses based on the nature of the precipitating event has caused
some degree of confusion and uncertainty. Using one set of criteria for
severity means that employers will not have to decide whether a case is
an injury or an illness in determining its recordability. This
simplifies the recordkeeping system, resulting in more accurate injury
and illness data while reducing the recordkeeping burden for employers
who are required to maintain records (61 FR 4036). Employers will
continue to classify each recordable case as either an injury or an
illness on the OSHA 300 Log, but the decision no longer has any effect
on whether or not the case must be recorded.
b. The criteria listed in the Act are mandatory but not exclusive
indicia of significance. A final issue relating to significance is the
effect to be given a finding that an injury or illness results in, or
does not result in, one of the outcomes listed in the statute: death,
days away from work, restricted work or transfer to another job,
medical treatment beyond first aid, or loss of consciousness. The
implication arising from the wording of section 8(c)(2) and section 24
is that if an injury or illness results in one of the listed outcomes,
it must be deemed significant for recordkeeping purposes. This
position, which reflects OSHA's longstanding, consistent interpretation
of the statute, was not seriously questioned in the rulemaking.
Accordingly, the final rule requires that a work-related injury or
illness be recorded if it results in one of the outcomes mentioned in
the statute.
The final rule also requires that a case be recorded, whether or
not it results in one of the listed outcomes, if it involves a
significant injury or illness diagnosed by a physician or other
licensed health care professional. 29 CFR 1904.10(b). Nothing in the
statute compels the conclusion that the criteria mentioned in sections
8 and 24 are the exclusive indicia of severity for recordkeeping
purposes. Congress directed the Secretary to collect data on ``all
disabling, serious, or significant injuries and illnesses, whether or
not involving loss of time from work,'' other than minor injuries * * *
which [do not result in one of the listed outcomes]. 29 U.S.C. 673(a).
A reasonable reading of this language is that while an injury that
meets one of the listed criteria is non-minor and must be recorded, the
converse does not necessarily follow. An injury or illness may
reasonably be viewed as significant, and therefore recordable, even if
it is not immediately followed by death, loss of consciousness, or job-
related disability. For example, an employee diagnosed with an
unquestionably serious work-related disease, such as asbestosis or
mesothelioma, may forego or postpone medical treatment and continue
temporarily to perform his or her normal job duties. Focusing
exclusively on the basic criteria listed in the statute in cases such
as these could result in underrecording of serious cases. Accordingly,
the final rule requires employers to record any significant injury or
illness that is diagnosed. A thorough discussion of this requirement,
including a definition of what constitutes a ``significant'' injury or
illness for