[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 this purpose, is contained in the preamble discussion of
section 1904.7.
Because the provisions of the final recordkeeping rule, as
explained above and in the subsequent sections of this preamble, are
reasonably related to the statutory purposes, the Secretary finds that
the rule is necessary to carry out her responsibilities under the Act.
The rule is therefore a valid exercise of the Secretary's general
rulemaking authority under Section 8. Cf. Mourning v. Family
Publications Services, 411 U.S. 356.
VII. Summary and Explanation
The following sections discuss the contents of the final 29 CFR
Part 1904 and section 1952.4 regulations. OSHA has written these
regulations using the plain language guidance set out in a Presidential
Memo to the heads of executive departments and agencies on June 1,
1998. The Agency also used guidance from the Plain Language Action
Network (PLAN), which is a government-wide group working to improve
communications from the Federal government to the public, with the
goals of increasing trust in government, reducing government costs, and
reducing the burden on the public. For more information on PLAN, see
their Internet site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.plainlanguage.gov/.
The plain language concepts encourage government agencies to adopt
a first person question and answer format, which OSHA used for the Part
1904 rule. The rule contains several types of provisions. Requirements
are described using the ``you must * * *'' construction, prohibitions
are described using ``you may not * * *'', and optional actions that
are not
[[Page 5933]]
requirements or prohibitions are preceded by ``you may * * *.'' OSHA
has also included provisions to provide information to the public in
the rule.
Subpart A. Purpose
The Purpose section of the final rule explains why OSHA is
promulgating this rule. The Purpose section contains no regulatory
requirements and is intended merely to provide information. A Note to
this section informs employers and employees that recording a case on
the OSHA recordkeeping forms does not indicate either that the employer
or the employee was at fault in the incident or that an OSHA rule has
been violated. Recording an injury or illness on the Log also does not,
in and of itself, indicate that the case qualifies for workers'
compensation or other benefits. Although any specific work-related
injury or illness may involve some or all of these factors, the record
made of that injury or illness on the OSHA recordkeeping forms only
shows three things: (1) that an injury or illness has occurred; (2)
that the employer has determined that the case is work-related (using
OSHA's definition of that term); and (3) that the case is non-minor,
i.e., that it meets one or more of the OSHA injury and illness
recording criteria. OSHA has added the Note to this first subpart of
the rule because employers and employees have frequently requested
clarification on these points.
The following paragraphs describe the changes OSHA has made to the
Purpose provisions in Subpart A of the final rule, and discusses the
Agency's reasons for these changes. Proposed section 1904.1 of Subpart
A contained three separate paragraphs. Proposed paragraph (a) stated
that the purpose of the recordkeeping rule (Part 1904) was ``to require
employers to record and report work-related injuries, illness and
fatalities.'' It also described several ways in which such records were
useful to employers, employees, OSHA officials, and researchers
evaluating and identifying occupational safety and health issues.
Proposed paragraph (b) noted that the recording of a job-related
injury, illness or fatality did not necessarily impute fault to the
employer or the employee, did not necessarily mean that an OSHA rule
had been violated when the incident occurred, and did not mean that the
case was one for which workers' compensation or any other insurance-
related benefit was appropriate. The third paragraph in proposed
section 1904.1, proposed paragraph (c), stated that the regulations in
Part 1904 had been developed ``in consultation with the Secretary of
Health and Human Services'' (HHS), as required by Section 24(a) of the
Act.
In the final rule, OSHA has moved much of this material, which was
explanatory in nature, from the regulatory text to the preamble. This
move has simplified and clarified the regulatory text. The final rule's
Purpose paragraph simply states that: ``The purpose of this rule (Part
1904) is to require employers to record and report work-related
fatalities, injuries and illnesses.'' This final rule statement is
essentially identical to the first sentence of the proposed Purpose
section. It clearly and succinctly states OSHA's reasons for issuing
the final rule.
A number of commenters (see, e.g., Exs. 25; 15: 199, 305, 313, 346,
348, 352, 353, 375, 418, 420) specifically addressed proposed section
1904.1. The principal points raised by these commenters concerned: (1)
Statements in proposed paragraph (a) about the quality of the data
captured by the records; (2) proposed paragraph (b)'s discussion of the
relationship between OSHA recordkeeping and employer/employee fault,
violations of OSHA rules, and the workers' compensation system, and (3)
the statement in proposed paragraph (c) that discussed OSHA's
consultation with the Secretary of Health and Human Services in
developing this rule. Each of these issues is discussed in detail
below.
Most comments on proposed paragraph (a) took issue with the
language that OSHA used to describe the statistical use of the records
(see, e.g., Exs. 25, 15: 305, 346, 348, 375, 420). Typical of these
comments is one from the National Association of Manufacturers: ``We
urge OSHA to remove the following unverified and conclusory statement
from Sec. 1904.1(a): ``The records: * * * accurately describe the
nature of occupational safety and health problems for the Nation, State
or establishment'' (Exs. 25, 15: 305). OSHA did not intend this
statement to attest with certainty to the validity of national
occupational statistics. Proposed section 1904.1(a) merely paraphrased
section 2(b) of the Act, which states that such records ``will help
achieve the objectives of this Act and accurately describe the nature
of the occupational safety and health problem.'' In response to
commenters, OSHA has simplified the final rule by deleting the proposed
listing of the functions of the records required by this rule.
As discussed earlier, proposed paragraph (b) stated that the
recording of a case did not ``necessarily mean that the employer or
employee was at fault, that an OSHA standard was violated, or that the
employee is eligible for workers' compensation or other insurance
benefits.'' The last sentence of proposed paragraph (b) described the
various types of workplace events or exposures that may lead to a
recordable injury or illness.
A number of commenters agreed with the proposed statements on
fault, compliance, and the relationship between the recording of a case
and workers' compensation or other insurance (see, e.g., Exs. 25, 15:
305, 346, 420). Employers have frequently asked OSHA to explain the
relationship between workers' compensation reporting systems and the
OSHA injury and illness recording and reporting requirements. As NYNEX
(Ex. 15: 199) noted,
[t]he issue of confusion between OSHA recordkeeping and workers'
compensation/insurance requirements cannot be totally eliminated as
the workers' compensation criteria vary somewhat from state to
state. There will always be some differences between OSHA
recordability and compensable injuries and illnesses. The potential
consequences of these differences can be minimized, however, if all
stakeholders in the recordkeeping process (i.e., employers,
employees, labor unions, OSHA compliance officials) are well
informed that OSHA recordability does not equate to compensation
eligibility. This can be facilitated by printed reminders on all of
the OSHA recordkeeping documents (e.g., forms, instructions,
pamphlets, compliance directives, etc.).
As NYNEX observed, employers must document work-related injuries
and illnesses for both OSHA recordkeeping and workers' compensation
purposes. Many cases that are recorded in the OSHA system are also
compensable under the State workers' compensation system, but many
others are not. However, the two systems have different purposes and
scopes. The OSHA recordkeeping system is intended to collect, compile
and analyze uniform and consistent nationwide data on occupational
injuries and illnesses. The workers' compensation system, in contrast,
is not designed primarily to generate and collect data but is intended
primarily to provide medical coverage and compensation for workers who
are killed, injured or made ill at work, and varies in coverage from
one State to another.
Although the cases captured by the OSHA system and workers'
compensation sometimes overlap, they often do not. For example, many
injuries and illnesses covered by workers' compensation are not
required to be recorded in the OSHA records. Such a situation would
arise, for example, if an employee were injured on the job, sent to a
hospital emergency
[[Page 5934]]
room, and was examined and x-rayed by a physician, but was then told
that the injury was minor and required no treatment. In this case, the
employee's medical bills would be covered by workers' compensation
insurance, but the case would not be recordable under Part 1904.
Conversely, an injury may be recordable for OSHA's purposes but not
be covered by workers' compensation. For example, in some states,
workers' compensation does not cover certain types of injuries (e.g.,
certain musculoskeletal disorders) and certain classes of workers
(e.g., farm workers, contingent workers). However, if the injury meets
OSHA recordability criteria it must be recorded even if the particular
injury would not be compensable or the worker not be covered.
Similarly, some injuries, although technically compensable under the
state compensation system, do not result in the payment of workers'
compensation benefits. For example, a worker who is injured on the job,
receives treatment from the company physician, and returns to work
without loss of wages would generally not receive workers' compensation
because the company would usually absorb the costs. However, if the
case meets the OSHA recording criteria, the employer would nevertheless
be required to record the injury on the OSHA forms.
As a result of these differences between the two systems, recording
a case does not mean that the case is compensable, or vice versa. When
an injury or illness occurs to an employee, the employer must
independently analyze the case in light of both the OSHA recording
criteria and the requirements of the State workers' compensation system
to determine whether the case is recordable or compensable, or both.
The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) urged OSHA to emphasize the no-fault philosophy
of the Agency's recordkeeping system, stating:
The AFL-CIO is encouraged by some provisions currently in the
proposed rulemaking which indirectly address underreporting. But, we
believe the Agency must take it one step further. To adequately
address this problem, the Agency must encourage employers to adopt a
``no fault system'' philosophy in the workplace and remove barriers
which discourage the reporting of injuries and illnesses by
employees. This philosophy will not only encourage workers to report
injuries and illnesses, but also encourage those individuals (e.g.,
supervisors, safety personnel) responsible for recording this data
to report all recordable incidents (Ex. 15: 418).
OSHA believes that the note to the Purpose paragraph of the final
rule will allay any fears employers and employees may have about
recording injuries and illnesses, and thus will encourage more accurate
reporting. Both the Note to Subpart A of the final rule and the new
OSHA Form 300 expressly state that recording a case does not indicate
fault, negligence, or compensability.
The Workplace Health and Safety Council, the American Coke and Coal
Chemicals Institute, and the National Oilseed Processors Association
(Exs. 15: 313, 352, 353) all urged OSHA to improve on this paragraph of
the proposed rule in two ways. First, these commenters asked OSHA to
remove the word ``necessarily'' from the language of proposed paragraph
(b), which stated that recording did not ``necessarily mean'' that
anyone was at fault, that a standard had been violated, or that the
case was compensable:
The qualification ``necessarily'' robs the [proposed] sentences
of their meaning and makes them inaccurate. Using the word
erroneously implies that merely listing an injury sometimes does
mean that the employer or employee was at fault, that an OSHA
standard was violated, or that the employee is eligible for workers'
compensation. Clearly, this is not what OSHA intended to convey.
Indeed, the word ``necessarily'' may actually worsen the problem
OSHA seeks to solve, for attorneys and consultants reading the
proposed provision might well advise employers that the provision
actually endorses some uses of a listing against an employer.
OSHA should, therefore, delete the word ``necessarily. * * *''
Alternatively, the sentence in the regulation should read: ``That an
injury or illness is recordable has no bearing on whether the
employer or employee was at fault, an OSHA standard violated, or the
employee is eligible for workers' compensation. * * *'' The legend
in the form would be similarly changed (Exs. 15: 313, 352, 353).
These three commenters (Exs. 15: 313, 352, 353) also suggested the
following:
(a) much preferred additional solution, would be for OSHA to
promulgate in the final version a provision that makes inadmissible
in all proceedings, both those under the OSH Act and those under any
state or federal law, the entries in Form OSHA 300 and 301 as
evidence of fault or culpability. Such a regulation would give
employers the necessary assurance that their recordkeeping forms
would not be used against them. Injured employees would lose nothing
by this, for they could still be permitted to prove the fact of
injury, its work-relatedness, and its consequence, with normal
proof. They would simply not be permitted to introduce the forms as
evidence of culpability. Such a rule would implement, be consistent
with, and be authorized by Section 4(b)(4) of the Act, which
prohibits the Act from affecting workers' compensation and tort
schemes.
OSHA agrees with the point made by these commenters about the
proposed rule's use of the word ``necessarily.'' Accordingly, the word
necessarily has been deleted from the Note to the Purpose paragraph of
the final rule. However, OSHA has rejected the suggestion made by these
commenters to limit the admissibility of the forms as evidence in a
court proceeding. Such action is beyond the statutory authority of the
agency, because OSHA has no authority over the courts, either Federal
or State.
In the proposal, the no-fault statement was followed by a listing
of the various causes of recordable injuries and illnesses:
``Recordable workplace injuries and illnesses result from a variety of
workplace events or exposures, including but not limited to: accidents,
exposure to toxic materials or harmful physical agents, intentional
acts of violence, or naturally occurring events such as a tornado or
earthquake.'' The American Petroleum Institute (API) (Ex. 15: 375)
objected to this proposed sentence describing the various examples of
injury and illness causality, stating:
To help the system have much-needed credibility, ``regardless of
fault or preventability'' should not be applied beyond reasonable
limits. Specifically, it shouldn't mean ``tornado or earthquake'' or
other sudden, unforeseen catastrophic events over which the employer
clearly could not have any control. Employers can, however, exercise
control to prevent injury from some types of naturally occurring
events. The terms ``tornado or earthquake'' should be replaced with
more reasonable examples.
In the final rule, OSHA has decided to eliminate the sentence of
examples to make the regulatory text clearer and more concise. However,
OSHA notes that many circumstances that lead to a recordable work-
related injury or illness are ``beyond the employer's control,'' at
least as that phrase is commonly interpreted. Nevertheless, because
such an injury or illness was caused, contributed to, or significantly
aggravated by an event or exposure at work, it must be recorded on the
OSHA form (assuming that it meets one or more of the recording criteria
and does not qualify for an exemption to the geographic presumption).
This approach is consistent with the no-fault recordkeeping system OSHA
has adopted, which includes work-related injuries and illnesses,
regardless of the level of employer control or non-control involved.
The issue of whether different
[[Page 5935]]
types of cases are deemed work-related under the OSHA recordkeeping
rule is discussed in the Legal Authority section, above, and in the
work-relationship section (section 1904.5) of this preamble.
In a comment on proposed paragraph (a), the National Association of
Manufacturers (NAM) (Exs. 25, 15: 305) argued that the OSHA
recordkeeping system should only collect information on
``the most significant hazards, those that lead to the most
significant injuries and illnesses * * *'' and that the purpose
paragraph of the final rule be revised to state ``The purpose of
this Part is to require employers to record and report disabling,
serious and significant work-related injuries and illnesses, and
work-related fatalities.''
OSHA does not agree with this interpretation of the OSH Act. As
discussed in the Legal Authority section, above, Congress stated
clearly that the OSHA recordkeeping system was intended to capture
``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'' (Sec. 8(c)(2)) (emphasis added).
The words ``disabling, serious, and significant,'' suggested by NAM,
are at variance with Congress' clear intent. OSHA concludes that the
guidance given by Congress--that employers should record and report on
work-related deaths, and on injuries and illnesses other than minor
injuries, establishes the appropriate recording threshold for cases
entered into the OSHA recordkeeping system.
A few commenters recommended that OSHA delete paragraph (c) of the
proposed Purpose section (see, e.g., Exs. 25, 15: 305, 346, 348, 420),
and in the final rule, OSHA has done so because the paragraph merely
attested to OSHA's cooperation with other agencies on this rule.
Although the rule has, in fact, been developed in cooperation with the
Department of Health and Human Services, and specifically with the
National Institute for Occupational Safety and Health (NIOSH), there is
no need to include this information in the regulatory text itself.
Subpart B. Scope
The coverage and partial exemption provisions in Subpart B of the
final rule establish which employers must keep OSHA injury and illness
records at all times, and which employers are generally exempt but must
keep records under specific circumstances. This subpart contains
sections 1904.1 through 1904.3 of the final rule.
OSHA's recordkeeping rule covers many employers in OSHA's
jurisdiction but continues to exempt many employers from the need to
keep occupational injury and illness records routinely. This approach
to the scope of the rule is consistent with that taken in the former
recordkeeping rule. Whether a particular employer must keep these
records routinely depends on the number of employees in the firm and on
the Standard Industrial Classification, or SIC code, of each of the
employer's establishments. Employers with 10 or fewer employees are not
required to keep OSHA records routinely. In addition, employers whose
establishments are classified in certain industries are not required to
keep OSHA records under most circumstances. OSHA refers to
establishments exempted by reason of size or industry classification as
``partially exempt,'' for reasons explained below.
The final rule's size exemption and the industry exemptions listed
in non-mandatory Appendix A to Subpart B of the final rule do not
relieve employers with 10 or fewer employees or employers in these
industries from all of their recordkeeping obligations under 29 CFR
Part 1904. Employers qualifying for either the industry exemption or
the employment size exemption are not routinely required to record
work-related injuries and illnesses occurring to their employees, that
is, they are not normally required to keep the OSHA Log or OSHA Form
301. However, as sections 1904.1(a)(1) and 1904.2 of this final
recordkeeping rule make clear, these employers must still comply with
three discrete provisions of Part 1904. First, all employers covered by
the Act must report work-related fatalities or multiple
hospitalizations to OSHA under Sec. 1904.39. Second, under
Sec. 1904.41, any employer may be required to provide occupational
injury and illness reports to OSHA or OSHA's designee upon written
request. Finally, under Sec. 1904.42, any employer may be required to
respond to the Survey of Occupational Injuries and Illnesses conducted
by the Bureau of Labor Statistics (BLS) if asked to do so. Each of
these requirements is discussed in greater detail in the relevant
portion of this summary and explanation.
Section 1904.1 Partial Exemption for Employers With 10 or Fewer
Employees
In Sec. 1904.1 of the final rule, OSHA has retained the former
rule's size-based exemption, which exempts employers with 10 or fewer
employees in all industries covered by OSHA from most recordkeeping
requirements. Section 1904.1, ``Partial exemption for employers with 10
or fewer employees,'' states that:
(a) Basic requirement.
(1) If your company had ten (10) or fewer employees at all times
during the last calendar year, you do not need to keep OSHA injury
and illness records unless OSHA or the BLS informs you in writing
that you must keep records under Sec. 1904.41 or Sec. 1904.42.
However, as required by Sec. 1904.39, all employers covered by the
OSH Act must report to OSHA any workplace incident that results in a
fatality or the hospitalization of three or more employees.
(2) If your company had more than ten (10) employees at any time
during the last calendar year, you must keep OSHA injury and illness
records unless your establishment is classified as a partially
exempt industry under Sec. 1904.2.
(b) Implementation.
(1) Is the partial exemption for size based on the size of my
entire company or on the size of an individual business
establishment?
The partial exemption for size is based on the number of
employees in the entire company.
(2) How do I determine the size of my company to find out if I
qualify for the partial exemption for size?
To determine if you are exempt because of size, you need to
determine your company's peak employment during the last calendar
year. If you had no more than 10 employees at any time in the last
calendar year, your company qualifies for the partial exemption for
size.
The Size-Based Exemption in the Former Rule
The original OSHA injury and illness recording and reporting rule
issued in July 1971 required all employers covered by the OSH Act to
maintain injury and illness records. In October 1972, an exemption from
most of the recordkeeping requirements was put in place for employers
with seven or fewer employees. In 1977, OSHA amended the rule to exempt
employers with 10 or fewer employees, and that exemption has continued
in effect to this day. All employers, however, have always been
required to report fatalities and catastrophes to OSHA and to
participate in the BLS survey, if requested to do so.
As discussed in the Legal Authority section of this preamble, the
10 or fewer employee threshold is consistent with Congressional intent:
the 1977 Federal Register notice announcing the new exemption cited the
Department of Labor appropriations acts for fiscal years 1975 and 1976,
which exempted employers having 10 or fewer employees from most routine
recordkeeping requirements, and Section 8(d) of the Act, as the major
reasons for raising the exemption size threshold from seven to 10
employees. The 1977 Notice stated that the new size
[[Page 5936]]
threshold appropriately balanced the interest of 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 38568 (July 29, 1977)).
The Size-Based Exemption in the Final Rule
The final rule published today maintains the former rule's partial
exemption for employers in all covered industries who have 10 or fewer
employees. Under the final rule (and the former rule), an employer in
any industry who employed no more than 10 employees at any time during
the preceding calendar year is not required to maintain OSHA records of
occupational illnesses and injuries during the current year unless
requested to do so in writing by OSHA (under Sec. 1904.41) or the BLS
(under Sec. 1904.42). If an employer employed 11 or more people at a
given time during the year, however, that employer is not eligible for
the size-based partial exemption.
The Size-Based Exemption in the Proposed Rule
In the 1996 proposal, OSHA contemplated raising the threshold for
the size-based exemption to 19 employees for all employers except those
in the construction industry. In proposing this more extensive
exemption, OSHA stated that BLS Annual Survey data appeared to indicate
that small businesses in this size category had proportionately fewer
injuries and illnesses and were thus safer places to work. However,
since the proposal, OSHA has analyzed the record evidence on this point
and now believes that small businesses are not generally likely to be
less hazardous than larger businesses and, in fact, are likely, as a
general matter, to be more hazardous than large businesses. OSHA's
reasoning is described below.
Comments to the record make clear that the recording of fewer
injuries and illnesses by very small firms could have many causes other
than a lower level of hazards. For example, the National Institute for
Occupational Safety and Health (NIOSH) submitted a comment to the
record that described numerous studies based on fatality and workers'
compensation data that suggest that smaller businesses are at least as
hazardous as larger businesses (Ex. 15: 407). NIOSH also argued that
the BLS estimated injury and illness incidence rates for small
employers may be erroneously low, i.e., may be the result of
underreporting rather than a lower injury rate. The following comment
from NIOSH explains these concerns:
From a public standpoint, NIOSH does not support a partial
exemption from recordkeeping requirements for employers in the
construction industry with 10 or fewer employees, and non-
construction employers with 19 or fewer employees. Research
indicates significant safety and health problems in ``small''
establishments which employ a substantial proportion of the
workforce. One-quarter of the civilian, full-time workforce is
employed in establishments with fewer than 25 employees (Oleinick et
al. 1995).
The Occupational Safety and Health Administration (OSHA) notes
[in the proposal to the recordkeeping rule] that ``the Annual Survey
data show that small employers generally experience much lower
patterns of injuries and illnesses than medium size firms.''
However, recent literature comparing Annual Survey data and workers
compensation data questions the validity of the estimated rates for
small employers obtained through the Bureau of Labor Statistics
(BLS) Annual Survey. Moreover, fatal and nonfatal work injuries are
a significant risk among small businesses in hazardous industries
and many industries with high fatal and nonfatal injury rates are
comprised primarily of small companies. In addition, NIOSH research
indicates that small companies have less access to safety and health
programs that might reduce injuries and illnesses than larger
companies [NIOSH 1988a].
Though the Annual Survey of Occupational Injuries and Illnesses
has consistently reported that employers with fewer than 20
employees have significantly lower rates of injuries and illnesses,
there is concern that these low incidence rates are an artifact of
the reporting system. Analysis of compensable injuries with >7
missed workdays in Michigan indicates that the pattern of lower
injury rates among small employers is not consistent across industry
divisions. Though the services and trade industry divisions show a
marked decline in compensable injury rate for small size firms, the
higher risk industries of construction and transportation/utilities
show relatively little decline in the compensable injury rate for
employers with fewer than 25 employees. Comparison of the
demographic characteristics of the Michigan work force with the
demographic characteristics of injured workers suggest that high
risk groups (e.g., males, younger workers [35 years of age],
construction, manufacturing, transportation, and blue collar
workers) are over-represented among workers injured in small size
firms (25 workers). Using cumulative lost work time as a surrogate
for severity of injury, the Michigan study also found that with one
exception (construction), compensable injuries to workers in small
firms were at least as serious as compensable injuries in larger
firms [Oleinick et al. 1995] (Ex. 15: 407).
Since publication of the recordkeeping proposal, OSHA has done
considerable research into the issue of fatality, injury, and illness
rates in small companies. The results of this research also point to
underreporting, rather than safer workplaces, as a likely reason for
the lower-than-average injury and illness numbers reported by small
employers. The most telling evidence that injury and illness
underreporting is prevalent among small firms is the substantial
discrepancy between the fatality rates in these firms and their injury
and illness rates.
Most professionals agree that occupational fatality data are more
reliable than occupational injury and illness data, primarily because
fatalities are more likely to be reported than injuries. The work-
related BLS fatality data appear to confirm this belief, showing that
although businesses with fewer than 10 employees account for only 4% of
the total workforce, they account for 28% of occupational fatalities.
Furthermore, although businesses with fewer than 20 employees comprise
only 26% of the total workforce, they account for 36% of all
occupational fatalities (see Mendeloff, ``Using OSHA Accident
Investigations to Study Patterns in Work Fatalities,'' J. Occup. Med
32: 1117, 1119 (1990) (Ex. 15: 407 F)). These data strongly suggest
that very small businesses are disproportionately hazardous places to
work.
Many safety and health professionals also believe that injuries and
illnesses are substantially underreported by small employers (see,
e.g., Exs. 4, 5, 15: 407). However, the occupational injury and illness
data reported by employers to the BLS in connection with its Annual
Survey of Occupational Injuries and Illnesses show lower rates of
injuries and illnesses for firms in the smallest size classes than for
those in larger classes. In an effort to understand why smaller firms
might have lower injury and illness incidence rates, the authors of one
study found that: (1) occupational fatality rates were highest in
businesses with fewer than 50 employees; (2) businesses with fewer than
50 employees were least likely to have occupational health services
available; and (3) lost workday injury rates in several major industry
categories are highest (i.e., the injuries are most severe) in these
facilities. From these findings, the authors concluded:
[[Page 5937]]
It is difficult to imagine a set of workplace conditions in
small establishments that would lead simultaneously to lower injury
rates, higher fatality rates, and equal, or greater, injury severity
measured by missed work time, especially since these establishments
were less likely to provide injury prevention and safety services
(Oleinick et al., ``Establishment Size and Risk of Occupational
Injury,'' Am. J. Med. 28(1): 2-3 (1995) (Ex. 15: 407 N)).
After considering a number of explanations that might explain this
apparent incongruity, these authors rejected all explanations except
one--underreporting by small firms:
With the rejection of alternative explanations, there is a
strong likelihood of underreporting as the explanation, and we
estimate that the annual [BLS] survey substantially undercounts
injuries in small establishments (Oleinick et al., 1995 (Ex. 15: 407
N)).
NIOSH agrees, noting that ``recent literature comparing Annual
Survey data and workers compensation data questions the validity of the
estimated rates for small employers obtained through the BLS Annual
Survey'' (Ex.15: 407). Thus, the apparent discrepancy between the high
fatality rate in the smallest firms (i.e., those with fewer than 20
employees) and the low rates of injuries and illnesses reported by
those same firms is likely to be the result of underreporting rather
than lower relative hazards.
A Wall Street Journal (Feb. 3, 1994) computer analysis of more than
500,000 Federal and State safety-inspection records came to the same
conclusions, i.e., that employees of small businesses are at greater
risk of exposure to workplace hazards than employees of larger
businesses, and that BLS data for small firms seriously understate
injuries and illnesses in such firms. From 1988 through 1992, the
analysis found an incidence of 1.97 deaths per 1,000 workers at
workplaces with fewer than 20 employees, compared with an incidence of
just 0.004 deaths per 1,000 workers at workplaces with more than 2,500
workers. Thus, an employee's risk of death was approximately 500 times
higher at the smallest businesses compared with the risk at the largest
businesses. Similarly, while one in six employees at small businesses
worked in an area cited for a serious safety violation, only one in 600
did so at the largest businesses. This means that employees in small
businesses are 100 times more likely to be exposed to a serious hazard
at work than those in the largest businesses, a finding that is
consistent with the higher fatality rates in very small workplaces
(Wall Street Journal, February 3, 1994).
In the final rule, OSHA has decided to continue the Agency's
longstanding practice of partially exempting employers with 10 or fewer
employees from most recordkeeping requirements, but not to extend the
exemption to non-construction businesses with 19 or fewer employees, as
was proposed. OSHA has determined that increasing the number of
employers partially exempted is not in the best interests of the safety
and health of their employees. First, as NIOSH's comments (Ex. 15:
407), the Oleinick et al. study (1995), the Mendeloff article (1990),
and the Wall Street Journal study (1994) all indicate, businesses with
20 or fewer employees tend to be relatively hazardous places to work,
and their employees have a disproportionately high risk of work-related
death. Second, as NIOSH and others point out, there is reason to
believe that these very small workplaces also experience
disproportionately high numbers of injuries and illnesses, and that the
BLS statistics for these workplaces substantially underreport the
extent of job-related incidents at these establishments (Ex. 15: 407,
Oleinick et al. 1995, Wall Street Journal 1994 (Ex. 15: 407 N).
Finally, under the 10 or fewer employee partial exemption threshold,
more than 80% of employers in OSHA's jurisdiction are exempted from
routinely keeping records. Increasing the threshold for the size
exemption would deprive even more employers and employees of the
benefits of the information provided by these injury and illness
records and reduce the number of establishments where the records can
be of use to the government during an on-site visit. OSHA also believes
that keeping the OSHA Log and Incident Report is important for national
statistical purposes.
Size Exemption Threshold for Construction Companies
The final rule also retains the former rule's size exemption
threshold (10 or fewer employees) for construction employers. OSHA
proposed separate size thresholds for construction and nonconstruction
firms, i.e., the Agency proposed to exempt firms in construction with
10 or fewer employees and non-construction firms with 19 or fewer
employees from routine recordkeeping requirements. Comments on this
aspect of the proposal were mixed. Some commenters agreed that OSHA
should continue the exemption for construction employers with ten or
fewer employees (see, e.g., Exs. 15: 145, 170, 197, 288). Other
commenters urged that employers in the construction industry not be
exempted from recordkeeping at all (see, e.g., Exs. 15: 62, 74, 414).
For example, Robert L. Rowan, Jr. stated that:
[s]mall contractors often lack adequate safety knowledge, programs
and safeguards to prevent injuries and illnesses. I believe that
data obtained from these small contractors will point to a trend
that these employees have a relatively high frequency of injuries
that are related to tasks involving construction work such as
excavations and fall hazards. I suggest that there be no exemptions
for recordkeeping for any construction employer (Ex. 15: 62).
Other commenters asked OSHA to use a single size threshold for
employees in all industries and to raise the size exemption threshold
to more than 19 employees across the board (see, e.g., Exs. 15: 67,
304, 312, 344, 437). For example, the Sheet Metal and Air Conditioning
Contractors' National Association (SMACNA) remarked:
The recordkeeping standard is considered to be a horizontal
standard, which by definition, means that it covers all industries.
SMACNA members own and operate sheet metal fabrication shops where
they design and create the products which are then installed in the
construction process, including duct work and all types of specialty
and architectural sheet metal. Sheet metal fabrication shops fall
under the manufacturing classification and are therefore subject to
general industry standards. SMACNA contractors also construct with
the components that they fabricate. Therefore, as contractors they
must also comply with the OSHA standards for construction.
OSHA's arbitrary two tier record keeping requirement will cause
confusion among SMACNA contractors as to which classification they
are under and when they have to maintain records. With the volumes
of regulations that contractors already must comply with, it is only
logical that if OSHA truly wishes to simplify its recordkeeping
requirements it would create a uniform standard for all industries.
* * *
SMACNA urges OSHA to create a uniform horizontal standard and
increase the exemption for the construction industry to cover
employers with 19 or fewer employees (Ex. 15: 116).
After a review of the record and reconsideration of this issue,
OSHA agrees that there should be only one size exemption threshold
across all industries and finds that the threshold should be 10 or
fewer employees. This threshold comports both with longstanding Agency
practice and Congressional intent. Further, as discussed above, OSHA
finds that extending this threshold to include firms with 11 to 19
employees is not warranted by the evidence. Firms in this size range
have a disproportionately large number of fatalities, and their
[[Page 5938]]
lower reported injury and illness rates are likely to be the result of
underreporting rather than fewer hazards. Thus, companies in this size
class need the information their OSHA records provide to improve
conditions in their workplaces and to protect their employees from job-
related injuries, illnesses, and deaths. Likewise, OSHA does not
believe that it would be appropriate to remove the partial exemption
for construction employers with 10 or fewer employees, as some
commenters suggested (see, e.g., Exs. 15: 67, 304, 312, 344, 437).
Using the same size threshold for all OSHA-covered industries also
makes the rule simpler and is more equitable from industry to industry.
Comments on Raising the Size-Based Exemption
Many commenters supported raising the size-based exemption
threshold (see, e.g., Exs. 27, 15: 26, 27, 67, 102, 123, 145, 170, 173,
182, 198, 247, 288, 304, 359, 375, 378, 392, 401, 437). For example,
the American Society of Safety Engineers (ASSE) remarked:
ASSE supports exempting businesses under twenty (20) employees
from the standard with some specific industry exemptions. Enforcing
this regulation for businesses of less than twenty (20) employees
would be detrimental to small business from the recordkeeping/
bureaucracy perspective, and may not generate any significant data.
ASSE wishes to clarify, however, that this position should not be
interpreted to mean that small businesses should be exempted from
safety and health laws. We believe that all employees are entitled
to an equal level of safety and health regardless of the size of
their place of employment. Exempting a paperwork requirement does
not change this level of commitment (Ex. 15: 182).
Two commenters suggested that OSHA use an even higher threshold for
determining the size-based exemption (Exs. 15: 357, 408). The Synthetic
Organic Chemical Manufacturers Association (SOCMA) stated ``* * * SOCMA
believes that OSHA should modify the small employer exemption by
increasing it to 40 employees. This alternative approach would reduce
the employer paperwork burden while improving the accuracy of injury
and illness information'' (Ex. 15:357). Similarly, the American Dental
Association (ADA) commented ``The ADA suggests that OSHA expand the
proposed exemption from `fewer than 20 employees' to `fewer than 25
employees.' This would bring the small-employer exception into
conformity with many federal and state employment laws. It would also
serve as a more reasonable dividing line between small employers and
others'' (Ex. 15:408).
Some commenters, however, objected to OSHA's proposed exemption of
employers in the 11 to 20 employee size range (see, e.g., Exs. 15:62,
369, 379, 407, 415, 418). Among these was the International Brotherhood
of Teamsters (IBT), which stated:
IBT maintains the importance of recording of all occupational
injuries and illnesses. For that same reason, International
Brotherhood of Teamsters does not support increasing the trigger for
non-construction employers from ten to nineteen employees. Although
injuries due to preventable causes occur in all types and sizes [of
businesses], a disproportionately high number of fatalities occur in
the smallest businesses. According to an analysis of BLS and OSHA
data, then assistant secretary of labor, Joe Dear, told the House of
Representative's Small Business Committee, ``Businesses with fewer
than eleven workers account for 33 percent of all fatalities even
though they account for less than 20 percent of employees.''
According to a study by the National Federation of Independent
Businesses, ``generally businesses with fewer employees do less to
improve safety than those with more.'' Large corporations can afford
the full-time services of a safety engineer and industrial
hygienist, whereas often small firms cannot. IBT contends that it is
up to OSHA to protect the workers and institute prevention measures.
The use of required recordkeeping of data helps to reach that aim by
providing hard data. If the data is going to be used as a prevention
tool, it must be collected from the entire workforce not just a
subgroup (Ex. 15:369).
Reliance on a single size exemption threshold also addresses the point
made by SMACNA: that many small employers perform construction work and
also manufacture products and would therefore be uncertain, if the rule
contained two size exemption thresholds, as to whether they are
required to keep records or not.
OSHA's proposed rule stated that the size exemption would apply to
employers based on the number of employees employed by the employer
``for the entire previous calendar year.'' The Office of Advocacy of
the Small Business Administration (SBA) observed (Ex. 15:67, p. 4) that
this statement could be interpreted in various ways, and expressed
concern that it could be taken to refer to the total number of
employees who had been employed at one time or another during the year
rather than the total employed at any one time of the year. The SBA
office recommended that OSHA provide clearer guidance. OSHA agrees with
the SBA that the proposed regulatory language was ambiguous.
Accordingly, the final rule clarifies that the 10 or fewer size
exemption is applicable only if the employer had fewer than 11
employees at all times during the previous calendar year. Thus, if an
employer employs 11 or more people at any given time during that year,
the employer is not eligible for the small employer exemption in the
following year. This total includes all workers employed by the
business. All individuals who are ``employees'' under the OSH Act are
counted in the total; the count includes all full time, part time,
temporary, and seasonal employees. For businesses that are sole
proprietorships or partnerships, the owners and partners would not be
considered employees and would not be counted. Similarly, for family
farms, family members are not counted as employees. However, in a
corporation, corporate officers who receive payment for their services
are considered employees.
Consistent with the former rule, the final rule applies the size
exemption based on the total number of employees in the firm, rather
than the number of employees at any particular location or
establishment. Some commenters suggested that the size exemption should
be based on the number of employees in each separate establishment
rather than the entire firm (see, e.g., Exs. 15: 67, 201, 437). For
example, Caterpillar Inc. (Ex. 15: 201) noted:
We do object to the note to [proposed] paragraph 1904.2(b)(2)
which bases size exemptions on the total number of employees in a
firm rather than the establishment size. Size exemptions must be
based upon individual establishment size. The factors that make
recordkeeping difficult and unproductive for small facilities are
not eliminated by adding small facilities together. Small facilities
are usually unique and adding together the injury and illness
experience of different small facilities will not produce a valid
database for accident analysis or accident prevention planning.
Injury and illness data collection is difficult because of small
facility size and lack of recordkeeping expertise and resources. The
benefits of collecting information in small facilities does not
justify the costs. It is illogical to base the size exemption on
anything other than the size of each separate establishment.
OSHA does not agree with this comment because the resources
available in a given business depend on the size of the firm as a
whole, not on the size of individual establishments owned by the firm.
In addition, the analysis of injury records should be of value to the
firm as a whole, regardless of the size of individual establishments.
Further, an exemption based on individual establishments would be
difficult to administer, especially in
[[Page 5939]]
cases where an individual employee, such as a maintenance worker,
regularly reports to work at several establishments.
Section 1904.2 Partial Exemption for Establishments in Certain
Industries
Section 1904.2 of the final rule partially exempts employers with
establishments classified in certain lower-hazard industries. The final
rule updates the former rule's listing of partially exempted lower-
hazard industries. Lower-hazard industries are those Standard
Industrial Classification (SIC) code industries within SICs 52-89 that
have an average Days Away, Restricted, or Transferred (DART) rate at or
below 75% of the national average DART rate. The former rule also
contained such a list based on data from 1978-1980. The final rule's
list differs from that of the former rule in two respects: (1) the
hazard information supporting the final rule's lower-hazard industry
exemptions is based on the most recent three years of BLS statistics
(1996, 1997, 1998), and (2) the exception is calculated at the 3-digit
rather than 2-digit level.
The changes in the final rule's industry exemptions are designed to
require more employers in higher-hazard industries to keep records all
of the time and to exempt employers in certain lower-hazard industries
from keeping OSHA injury and illness records routinely. For example,
compared with the former rule, the final rule requires many employers
in the 3-digit industries within retail and service sector industries
that have higher rates of occupational injuries and illnesses to keep
these records but exempts employers in 3-digit industries within those
industries that report a lower rate of occupational injury and illness.
Section 1904.2 of the final rule, ``Partial exemption for
establishments in certain industries,'' states:
(a) Basic requirement.
(1) If your business establishment is classified in a specific
low hazard retail, service, finance, insurance or real estate
industry listed in Appendix A to this Subpart B, you do not need to
keep OSHA injury and illness records unless the government asks you
to keep the records under Sec. 1904.41 or Sec. 1904.42. However, all
employers must report to OSHA any workplace incident that results in
a fatality or the hospitalization of three or more employees (see
Sec. 1904.39).
(2) If one or more of your company's establishments are
classified in a non-exempt industry, you must keep OSHA injury and
illness records for all of such establishments unless your company
is partially exempted because of size under Sec. 1904.1.
(b) Implementation.
(1) Does the partial industry classification exemption apply
only to business establishments in the retail, services, finance,
insurance or real estate industries (SICs 52-89)?
Yes. Business establishments classified in agriculture; mining;
construction; manufacturing; transportation; communication,
electric, gas and sanitary services; or wholesale trade are not
eligible for the partial industry classification exemption.
(2) Is the partial industry classification exemption based on
the industry classification of my entire company or on the
classification of individual business establishments operated by my
company?
The partial industry classification exemption applies to
individual business establishments. If a company has several
business establishments engaged in different classes of business
activities, some of the company's establishments may be required to
keep records, while others may be exempt.
(3) How do I determine the Standard Industrial Classification
code for my company or for individual establishments?
You determine your Standard Industrial Classification (SIC) code
by using the Standard Industrial Classification Manual, Executive
Office of the President, Office of Management and Budget. You may
contact your nearest OSHA office or State agency for help in
determining your SIC.
Employers with establishments in those industry sectors shown in
Appendix A are not required routinely to keep OSHA records for their
establishments. They must, however, keep records if requested to do so
by the Bureau of Labor Statistics in connection with its Annual Survey
(section 1904.42) or by OSHA in connection with its Data Initiative
(section 1904.41). In addition, all employers covered by the OSH Act
must report a work-related fatality, or an accident that results in the
hospitalization of three or more employees, to OSHA within 8 hours
(section 1904.39).
In 1982, OSHA exempted establishments in a number of service,
finance and retail industries from the duty to regularly maintain the
OSHA Log and Incident Report (47 FR 57699 (Dec. 28, 1982)). This
industry exemption to the Part 1904 rule was intended to ``reduce
paperwork burden on employers without compromising worker safety and
health.''
The 1982 list of partially exempt industries was established by
identifying lower hazard major industry groups in the SIC Divisions
encompassing retail trade, finance, insurance and real estate, and the
service industries (SICs 52-89). Major industry groups were defined as
the 2-digit level industries from the SIC manual published by the U.S.
Office of Management and Budget (OMB). Industries in these major
industry groups were partially exempted from coverage by Part 1904 if
their average lost workday injury rate (LWDI) for 1978-80 was at or
below 75% of the overall private sector LWDI average rate for that
year. Industries traditionally targeted for OSHA enforcement (those in
SICs 01 through 51, comprising the industry divisions of agriculture,
construction, manufacturing, transportation and public utilities,
mining, and wholesale trade) remained subject to the full recordkeeping
requirements. Although the 1982 Federal Register notice discussed the
possibility of revising the exempt industry list on a routine basis,
the list of partially exempt industries compiled in 1982 has remained
unchanged until this revision of the Part 1904 rule.
The proposed rule would have updated the industry exemption based
on more current data, and would have relied on 3-digit SIC code data to
do so. The only change from the former rule taken in the proposal would
have been reliance on LWDI rates for industries at the 3-digit, rather
than 2-digit, level.
Evaluating industries at the 3-digit level allows OSHA to identify
3-digit industries with high LWDI rates (DART rates in the terminology
of the final rule) that are located within 2-digit industries with
relatively low rates. Conversely, use of this approach allows OSHA to
identify lower-hazard 3-digit industries within a 2-digit industry that
have relatively high LWDI (DART) rates. Use of LWDI (DART) rates at the
more detailed level of SIC coding increases the specificity of the
targeting of the exemptions and makes the rule more equitable by
exempting workplaces in lower-hazard industries and requiring employers
in more hazardous industries to keep records.
Under the proposal, based on their LWDI (DART) rates, the following
industries would have been required to keep records for the first time
since 1982:
SIC 553 Auto and Home Supply Stores
SIC 555 Boat Dealers
SIC 571 Home Furniture and Furnishings Stores
SIC 581 Eating Places
SIC 582 Drinking Places
SIC 596 Nonstore Retailers
SIC 598 Fuel Dealers
SIC 651 Real Estate Operators and Lessors
SIC 655 Land Subdividers and Developers
SIC 721 Laundry, Cleaning, and Garment Services
SIC 734 Services to Dwellings and Other Buildings
SIC 735 Miscellaneous Equipment Rental and Leasing
SIC 736 Personnel Supply Services
SIC 833 Job Training and Vocational Rehabilitation Services
SIC 836 Residential Care
[[Page 5940]]
SIC 842 Arboreta and Botanical or Zoological Gardens, and
SIC 869 Membership Organizations Not Elsewhere Classified
The following industries would have been newly exempted by the
proposal:
SIC 525 Hardware Stores
SIC 752 Automobile Parking
SIC 764 Reupholstery and Furniture Repair
SIC 793 Bowling Centers
SIC 801 Offices and Clinics of Doctors of Medicine
SIC 807 Medical and Dental Laboratories, and
SIC 809 Miscellaneous Health and Allied Services, Not Elsewhere
Classified
In the Issues section of the preamble to the proposed rule, OSHA
asked the public to comment on the appropriateness of the proposed
exemption procedure, and on whether or not OSHA should expand this
approach to industries in SICs 01 through 51. The Agency also asked for
alternative approaches that would reduce employer paperwork burden
while retaining needed injury and illness information, and for
estimates of the costs and benefits associated with these alternatives.
OSHA notes that the final rule is based on the most recent data
available (1996-1998). Although it has relied on the methodologies
proposed (3-digit SIC codes, industries below 75% of the national
average LWDI rate), there have been a few shifts in the industries
proposed to be covered and those actually covered by the final rule.
Thus this final rule will continue to exempt eating and drinking places
(SICs 581 and 582) but will not exempt automobile parking (SIC 752).
Comments on the Proposed Industry Exemptions
A number of commenters supported OSHA's proposal to apply the 1982
exemption criteria to the service and retail industries at the three-
digit SIC level (see, e.g., Exs. 27; 15: 26, 199, 229, 247, 272, 299,
359, 375, 378, 392). However, a number of commenters opposed any
exemptions from the Part 1904 requirements on the basis of industry
classification (see, e.g., Exs. 15: 9, 13, 31, 62, 78, 83, 129, 153,
154, 163, 186, 197, 204, 234, 350, 379, 399, 414). The International
Paper Company explained its reasons for opposing industry exemptions as
follows:
Exempting employers with low incidence rates is inconsistent
with a major objective of the recordkeeping rules; specifically,
measuring the magnitude of work-related injuries and illnesses.
Exemption of specific industrial classifications or small employers
may bias statistics which are used by OSHA for identifying
industries for inspections. These exemptions may also impact
statistics related to less traditional, but increasingly more
frequent exposures such as bloodborne pathogens, tuberculosis, motor
vehicle incidents or workplace violence.
Exempting employers with low incidence rates does not provide
any measurable relief from paperwork requirements. Time spent on
recordkeeping is primarily dedicated to decision making regarding
work relationship and recordability, not actual Log entries or
completing supplemental reports. Simplifying the decision making
process is the best way to reduce the burden of recordkeeping, not
exempting employers (Ex. 15:399).
The Service Employees International Union (SEIU) agreed:
Injury and illness recordkeeping is the most basic step an
employer must take in order to begin to address workplace hazards.
Responsible employers recognize that injury and illness records are
a useful tool for development of sound company safety and health
programs. This information is also critical to the workers
themselves, by raising awareness about how and where people are
getting hurt, they in turn use this information to work to eliminate
the causes of such injuries and illnesses. Therefore it is
disturbing that in the proposed revised standard, there still exist
industry exemptions for recordkeeping and reporting. Prior to 1983,
all employers covered by OSHA with more than ten employees were
required to maintain injury and illness records.
* * * SEIU believes that such exemptions are unwarranted and
violate the specific language of the Occupational Safety and Health
Act. * * * The Act does not provide for excluding entire classes of
occupationally injured and sick workers. Furthermore, little
recordkeeping will be required for industries that are safe and
experience low rates of injuries and illnesses. It is critical that
OSHA require recordkeeping for all industries, especially since many
previously exempt sectors now experience increasing rates of injury
and illness. Many of these industry sectors are also dramatically
expanding--therefore, continued recordkeeping is even more critical
(Ex. 15:379).
The National Safety Council (Ex. 15:359) cautioned:
From the point of view of injury and illness prevention. * * *
an establishment that does not track its injury and illness
experience cannot effectively administer a prevention program. * * *
Although OSHA encourages employers to track the occupational
injuries and illnesses occurring among their employees and agrees that
doing so is important for safety and health prevention efforts, OSHA
has decided in the final rule to continue the long-established practice
of exempting employers in industries with lower average lost workday
incidence rates from most OSHA recordkeeping requirements but to tie
the exemption as closely as possible to specific 3-digit SIC code data.
Accordingly, non-mandatory Appendix A of the final rule identifies
industries for exemption at the 3-digit SIC code level. Although this
approach does make the list of exempt industries longer and more
detailed, it also targets the exemption more effectively than did the
former rule's list. For example, the final rule does not exempt firms
in many of the more hazardous 3-digit SIC industries that are embedded
within lower rate 2-digit SIC industries. It does, however, exempt
firms in relatively low-hazard 3-digit SIC industries, even though they
are classified in higher hazard 2-digit SIC industries. Where Days
Away, Restricted, or Transferred (DART, formerly LWDI) rate
calculations exempt all of the 3-digit SIC industries within a given 2-
digit industry, the exempt industry list in Appendix A displays only
the 2-digit SIC classification. This approach merely provides a
shorter, simpler list.
For multi-establishment firms, the industry exemption is based on
the SIC code of each establishment, rather than the industrial
classification of a firm as a whole. For example, some larger
corporations have establishments that engage in different business
activities. Where this is the case, each establishment could fall into
a different SIC code, based on its business activity. The Standard
Industrial Classification manual states that the establishment, rather
than the firm, is the appropriate unit for determining the SIC code.
Thus, depending on the SIC code of the establishment, one establishment
of a firm may be exempt from routine recordkeeping under Part 1904,
while another establishment in the same company may not be exempt.
Several commenters suggested that OSHA use an alternate method for
determining exemptions (see, e.g., Exs. 15: 97, 201, 359). The National
Safety Council (Ex. 15: 359), for example, urged OSHA to ``evaluate
other exemption procedures before incorporating one into proposed
section 1904.2.''
OSHA has evaluated other approaches but has decided that the 3-
digit DART rate method is both simpler and more equitable than the
former 2-digit method. By exempting lower-hazard industry sectors
within SICs 52-89, OSHA hopes both to concentrate its recordkeeping
requirements in sectors that will provide the most useful data and to
minimize paperwork burden. No exemption method is perfect: any method
that exempts broad classes of employers from recordkeeping obligations
will exempt some more hazardous workplaces and cover some less
hazardous workplaces. OSHA has
[[Page 5941]]
attempted to minimize both of these problems by using the most current
injury and illness statistics available, and by applying them to a more
detailed industry level within the retail, financial and service
sectors than was formerly the case. OSHA has also limited the scope of
the exemptions by using an exemption threshold that is well below the
national average, including only those industries that have average
DART rates that are at or below 75% of the national average DART rate.
The rule also limits the exempt industries to the retail, financial and
service sectors, which are generally less hazardous than the
manufacturing industry sector.
The Orlando Occupational Safety and Health Customer Council asked:
``What is the criteria for exemptions? For example, large auto dealers
who also perform auto repair work are exempt, while smaller auto repair
shops are not exempt. Why not classify the organization by the most
hazardous occupation [within that organization]?'' (Ex. 15: 97).
In response to this query, OSHA notes that the exemption procedure
is reasonably straightforward, as the following example illustrates:
the automobile dealer industry is exempt because its DART rate, as
indicated by its average over three years of BLS data, is below 75% of
the national average rate. Automobile repair shops are not exempted,
however, because their rate is higher than the 75% cutoff. If OSHA were
to base its recordkeeping requirements on the most hazardous occupation
within a given industry, assuming that occupation-specific within-
industry injury and illness data were available, as this commenter
suggests, the number of establishments in individual industries that
would have to keep records would greatly increase. This is because even
relatively safe industries have some number of employees who engage in
relatively hazardous occupations. For example, workers who transport
currency, coins, and documents for banks and other financial
institutions are engaged in a fairly hazardous occupation. They may be
injured in many different ways, ranging from highway accidents, to
lifting of heavy parcels, to robberies. However, the experience of
these few employees within the industry does not accurately reflect the
relative degree of hazard confronting the vast majority of employees in
the financial industries. Although it is certainly not perfect, OSHA
believes that the BLS lost workday injury rate (DART rate) is a better
comparative statistic than the injury rate for a particular occupation
because it reflects the risk to the average worker within the
particular industry. Moreover, while it is relatively easy to classify
employees according to occupation, it is unclear how to classify
individual employers with regard to detailed occupation, and OSHA is
also not aware of data that would permit such classification.
The Caterpillar Corporation (Ex. 15: 201) suggested that OSHA
adjust the formula used to determine which industries are exempted:
You propose to base your exemption on achieving less than 75% of
the average private sector lost workday injury rate; however, we
would recommend expanding the size of the exemption to include all
industries below the private sector average. We have no objection to
your proposal to eliminate the ``nesting'' problem within 2-digit
SIC code groups, as long as the exemption size is maximized. The
recordkeeping paperwork burden for small and relatively safe
industries is significant and not justified based upon the benefits
received.
OSHA has decided in the final rule to continue to use a formula
that will exempt retail, finance and services industries from most
recordkeeping requirements if they have a Days Away, Restricted, or
Transferred (DART) rate that is at or below 75% of the national average
rate. OSHA believes that the 75% threshold will ensure that only
industries with relatively low injury and illness rates are exempted
from these requirements. Using the national average DART rate, rather
than 75% of the national DART rate, as the threshold for exemption
purposes would exempt employers whose industries were merely average in
terms of their DART rate.
OSHA received many comments from firms in industries that have been
exempt from most OSHA recordkeeping requirements since 1982 but that
would have been required by the proposed rule to keep records. Most of
these commenters opposed their industry's inclusion within the scope of
the proposed rule. For example, several commenters from the restaurant
industry objected to the fact that SICs 581 and 582, eating and
drinking places, would have been covered (see, e.g., Exs. 15: 3, 4, 5,
6, 7, 8, 12, 20, 22, 55, 96, 125, 202, 311). The National Restaurant
Association remarked:
The Association opposes elimination of this exemption on the
bases that:
--the proposal, if promulgated, will cost eating and drinking
establishments an estimated $17 million in the first year alone;
--the additional recordkeeping obligations under the proposed
rule duplicate data already available to OSHA from other sources;
and
--the current data does not justify removal of the partial
recordkeeping exemption for eating and drinking establishments (Ex.
15: 96).
In the final rule, the exemption for eating and drinking places is
retained, because the recent data indicate that these industries have
DART rates that are below 75% of the national rate.
Two commenters addressed the proposed removal of the exemption for
SIC 553, auto and home supply stores (Ex. 15: 367, 402). For example,
the Automotive Parts and Accessories Association (APAA) stated:
The vast majority of auto parts stores are similar to other
retailers which would still be exempt under this proposal. * * *
[m]ore than three quarters of the automotive parts retailers which
are proposed to be saddled with the full Log requirements would have
little or no potential injury or illness experience to justify the
added mandate (Ex. 15: 367).
Several commenters discussed the proposed removal of the exemption
for SIC 721, laundry, dry cleaning and textile rental services (see,
e.g., Exs. 15: 183, 244, 326). Typical of the views expressed by these
commenters was the comment of the Textile Rental Services Association
of America (TRSA):
TRSA is strongly opposed to OSHA's proposal to eliminate the
partial exemption from recordkeeping and reporting requirements for
laundry, cleaning, and garments services for Standard Industrial
Classification (SIC) 721. TRSA believes that the proposed inclusion
of the textile rental industry is unjustified. Because the textile
rental industry has historically been proactive when it comes to
workplace safety and has been 75% below the industry average for
lost work days, we contend that OSHA's plan to eliminate the partial
exemption from injury/illness recordkeeping requirements is
unwarranted (Ex. 15: 183).
The National Association of Home Builders (NAHB) commented on the
proposed inclusion in the recordkeeping system of a variety of
industries closely associated with the home building industry:
As a result of using a 3 digit Standard Industrial
Classification (SIC), ``Real Estate Offices'' (SIC 651) will now be
required to report and record injury and illness data if they have
more than 19 workers during the year. A cursory analysis of the
hazards associated with real estate offices seems to indicate
limited exposure to high hazards (Ex. 15: 323).
The primary arguments put forth by these commenters are as follows:
(1) The occupational injury and illness data collected under Part 1904
are available to OSHA from other sources; (2) OSHA's data requirements
are burdensome; (3) the use of even more current data would change the
list of exempted industries;
[[Page 5942]]
and (4) some of the individual industries that would be covered are
relatively safe.
In response, OSHA notes that, although statistical information on
average work-related injury and illness rates in industries is
available from the BLS and other sources, information about the hazards
present at specific workplaces is not available to OSHA from those same
sources. OSHA recognizes that the maintenance of these records imposes
some burden on businesses in the form of paperwork. However, the
benefits of keeping records are also clearly substantial: informed
employers can use the data to provide greater protection for their
employees and to receive the benefits that accrue from prevention
efforts in the form of fewer injuries and illnesses. In addition, the
records are useful to OSHA in the inspection process. OSHA also
believes that the process for selecting exempt industries must be as
objective as possible, and that exemptions must rely upon timely and
objective information about the safety and health experience of a given
industry. The lost workday injury rates published by the Bureau of
Labor Statistics provide the most consistent and reliable nationwide
statistics available for this purpose, and OSHA is therefore relying on
these data. The 75% of the national rate cutoff strikes a reasonable
balance between collecting data likely to be useful and avoiding
unnecessary burden. OSHA has used the most recent data available at
this time in establishing the final list of partially exempt
industries. OSHA also has used data from a three-year period (1996-
1998) rather than a one-year period to reduce year-to-year variation in
the data.
Other commenters argued that their industry should not be exempt
because their workplaces continue to pose risk to the workers in them.
For example, the American Nurses Association (ANA) opposed the partial
exemption of doctor's offices and health services:
ANA urges OSHA to remember the purpose of the Act, to protect
the health and safety of ALL workers, when deliberating on exempting
employers from this standard. As stated before, health care workers
risk of exposure to injury and illness is not limited to one
setting. Therefore, the Standard Industrial Classifications (SICs)
801 Offices and Clinics of Doctors of Medicine and SIC 809
Miscellaneous Health and Allied Services should not be exempt from
this standard (Ex. 15: 376).
The International Brotherhood of Teamsters (IBT) also argued
against excluding certain health care service industries:
IBT has concerns when the use of this analysis will grant
partial exemptions to SIC codes 801 (offices and clinics of
doctors), 807 (medical and dental offices), and 809 (miscellaneous
health and allied services). All three of these SIC codes are
covered under other OSHA rules (such as the bloodborne pathogen
standard and ethylene oxide standard) and have medical surveillance
requirements to detect adverse health effects. OSHA should require
that these workplaces keep records of work related illnesses or
injuries that occur. Especially, since OSHA has already determined
that there is a significant risk of harm from exposures in these
workplaces (Ex. 15: 369).
OSHA recognizes that workers in establishments that are exempt
under the 75% DART rate criterion will continue to be exposed to job-
related hazards and to experience workplace injuries and illnesses.
However, because these industries' overall injury rate is below the 75%
cutoff, they qualify for exemption, along with other financial, service
and retail industries that fall below that injury rate threshold.
Exemption of an industry on the basis of its lower-than-average DART
rate does not mean that all establishments within that industry have
such rates or that workers in that industry will not experience
injuries and illnesses. The 1904 partial exemption does not exempt
employers from any other OSHA regulation or standard, so employees in
these industries will continue to benefit from the protection offered
by the OSHA standards. For example, while doctors' and dentists'
offices are partially exempt under the 1904 regulation, they are still
required to comply with the OSHA Bloodborne Pathogens Standard (29 CFR
1910.1030). Use of the 75% criterion merely provides a cutoff point,
based on BLS injury and illness rates, for different industry sectors.
OSHA believes that it is appropriate to use the 75% cutoff point
because, in general, it is an appropriate overall indicator of the
relative hazard rank of an industry. OSHA recognizes that no average
across-establishment statistic can capture the injury and illness
experience of all occupations or establishments within that industry.
For some SIC codes, the BLS Annual Survey does not publish data at
the three-digit level. The survey is designed to provide data at the
four-digit level in the manufacturing industries and at the three-digit
level in all other industries, primarily because of budget constraints
that limit the amount of data the BLS can collect and process. However,
the survey has other publication criteria that make some of the data at
this detailed level unpublishable. Under the proposal, coverage would
have been based on the industry's LWDI rate. If a 3-digit sector did
not have published data, OSHA proposed to use the data for the two-
digit industry group for that sector.
One 3-digit sector affected by this approach was dental offices
(SIC 802), which the proposal would have covered because the entire 2-
digit health care sector has a relatively high injury and illness rate.
The American Dental Association (ADA) suggested that OSHA use an
alternative approach to exempt dentists from coverage rather than rely
on a strict data protocol for making the decision:
[d]ental offices are very much like physicians' offices in terms of
size, scope of activity, and degree of occupational health risk. For
purposes of this rulemaking, however, physicians' offices have been
granted a categorical exemption while dentists' offices (SIC Code
802) have not. Even dental laboratories (SIC Code 807) have been
granted a categorical exemption from this rule, although it is
unlikely that anyone would assert that dental laboratories are safer
and more healthful places to work than dental offices. The ADA is
unaware of any data suggesting that dental offices should be treated
differently than either physicians' offices or dental laboratories
(Ex. 15: 408).
The more recent data published by the BLS for the years 1996, 1997,
and 1998 include specific estimates of the injury and illness
experience for SIC 802 (dental offices) in that period. The dental
office industry experienced a 3-year average rate of days away,
restricted, or transferred injuries of 0.2 per 100 workers in those
years, a rate well below 75% of the national average. Therefore, the
final rule exempts employers classified in SIC 802 from routine
recordkeeping requirements.
The proposed rule would have removed SIC 736 (personnel supply
services) from the list of exempted industry sectors; however, because
this industry's more recent average DART (formerly LWDI) rate (for the
years 1996, 1997, and 1998, the base years OSHA is using to determine
lower-hazard industry exemptions) is above 75% of the national average
cutoff, SIC 736 is not exempted under the final rule. The final rule
(see section 1904.31(b)(2)) requires the ``using firm'' to record the
injuries and illnesses of temporary workers that are ``leased'' from a
personnel supply service, providing that the using firm supervises
these workers on a day-to-day basis.
The National Association of Temporary and Staffing Services
commented on the proposed removal of the exemption for SIC 736:
[[Page 5943]]
The proposed rules also would lift the partial exemption for
employers classified under SIC Code 7363 (help supply services).
Those employers, among others, were exempted from injury and illness
record keeping requirements in 1982 because they had low work place
injury rates. The proposal to lift the exemption is based on
reported increased injury rates for these employers. However, since
records for the vast majority of staffing firm employees are
maintained by the worksite employer as explained above, the
practical effect of lifting the exemption for staffing firms would
be to require them to maintain records for their home office
clerical and administrative workers--for whom there is no evidence
of increased work place illnesses or injuries. Hence, we urge OSHA
to retain the partial exemption for SIC 7363.
If the exemption is not retained in the case of SIC 7363
employers, it would be especially important for the final rules to
expressly provide, as set forth above, that there is no intent to
impose a dual reporting requirement. At least one state OSH office
already has construed the proposed lifting of the partial exemption
as creating an obligation on the part of staffing firms to maintain
records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent
with the intent of the proposed rule and should be clarified (Ex.
15: 333).
The final rule makes clear that, when a ``leased'' or ``temporary''
employee is supervised on a day-to-day basis by the using firm, the
using firm must enter that employee's injuries and illnesses on the
using firm's establishment Log and other records. Injuries and
illnesses occurring to a given employee should only be recorded once,
either by the temporary staffing firm or the using firm, depending on
which firm actually supervises the temporary employees on a day-to-day
basis. (see the discussion for Sec. 1904.31, Covered employees, for an
in-depth explanation of these requirements.)
Some commenters suggested that OSHA should grant partial exemptions
to specific industries within SICs 01 through 51 (agriculture, forestry
and fishing; mining; construction; manufacturing; transportation,
communications, electric, gas and sanitary services; and wholesale
trade) that had lost workday incidence rates that were below 75% of the
average rate for all industries instead of limiting such exemptions to
industries in SICs 52-89 (see, e.g., Exs. 15: 77, 95, 184, 201, 357,
359, 374, 375). Typical of these comments was one from the Synthetic
Organic Chemical Manufacturers Association (SOCMA):
SOCMA believes that the partial exemption from recordkeeping
requirements should be consistent for all standard industrial
classifications. SOCMA supports the use of injury rates, rather than
SIC Codes, as a criterion for partial exemption from recordkeeping
requirements, provided the same criterion is applied to all work
sites. For example, if the performance measure was 75 percent of the
private sector average, then all industries with injury rates below
this average should be exempt.
There is sound basis for this shift in OSHA's approach. It has
been found in the past that some industries in partially exempt SIC
Codes 52--89 have had high injury rates while some in the
``manufacturing'' SIC Codes 01-51 have had low injury rates. This
has resulted in insufficient or unavailable injury and illness
information for some facilities in SIC Codes 52-89 with high injury
rates. Inspection resources are wasted if injury and illness
information is not available during the inspection of high injury
rate facilities. Conversely, requiring full recordkeeping for
facilities with low injury rates results in a facility wasting
resources on unnecessary recordkeeping. All businesses, regardless
of SIC Code, should be treated equally and should have the
opportunity to be exempt based on injury rates (Ex. 15: 357).
The National Automobile Dealers Association (NADA) urged OSHA to
exempt truck dealerships [classified in SIC 50], even though they are
considered wholesale rather than retail establishments, because of
their similarity to automobile dealerships [SIC 551], which are
exempted:
NADA strongly urges OSHA to exempt truck dealerships (SIC 5012),
the overwhelming majority of whom are small businesses as recognized
by the Small Business Administration (SBA).* * * A limited exemption
for truck dealerships is justified under the same criteria used for
automobile dealerships (Ex. 15: 280).
On the other hand, some commenters agreed with OSHA's proposal to
require all businesses in SICs 01-51 to keep injury and illness records
(see, e.g., Exs. 15: 170, 199, 369). The International Brotherhood of
Teamsters (IBT) remarked: ``IBT does not support using the same
analysis of data at the three digit level of those industries in SIC 01
through 51 (industries historically not exempted from recordkeeping
requirements). IBT maintains the importance of recording of all
occupational injuries and illnesses'' (Ex. 15: 369). A major utility,
New England Power, agreed: ``We believe that the existing exemption
criteria for SICs 52-89 should remain the same. Although many
industries would fall within the exemption criteria in SICs 01-51, they
are still higher hazard industries producing valuable data on injury/
illness experience'' (Ex. 15: 170). The NYNEX Corporation also agreed
with OSHA's proposed approach:
We are not in favor of extending the concept of industry-wide
recordkeeping exemptions to the list of three digit codes in the
group 01-51 that were identified in the proposal. Even though these
groups have average injury and illness case rates that are less than
75% of the private sector average, the nature of the work operations
performed within these industries suggests that the variation above
and below average for individual establishments could be much
greater than with SIC Codes 52-89. An exemption for this group of
establishments could mask the existence of some very high case rates
within this group (Ex. 15: 199).
After a review of the recent BLS data, OSHA's own experience, and
the record of this rulemaking, OSHA has decided that it is appropriate
to require firms in industries within the SIC 01 through 51 codes to
comply with OSHA's requirements to keep records. Thus, the final rule,
like the proposed rule and the rule published in 1982, does not exempt
firms with more than 10 employees in the industry divisions of
agriculture, mining, construction, manufacturing, wholesale trade,
transportation and public utilities (SICs 01--52) from routine
recordkeeping.
Although OSHA no longer restricts its inspection targeting schemes
to employers in these SICs, these industries have traditionally been,
and continue to be, the focus of many of the Agency's enforcement
programs. OSHA believes that it is important for larger employers
(i.e., those with more than 10 employees) in these industries to
continue to collect and maintain injury and illness records for use by
the employer, employees and the government. As noted in the comments
there is a wide variation in injury/illness rates among establishments
classified in these industries. Further, as a whole, these industries
continue to have injury and illness rates that are generally higher
than the private sector average and will thus benefit from the
information that OSHA-mandated records can provide about safety and
health conditions in the workplace. In 1998, the lost workday injury
and illness rate for the entire private sector was 3.1. As can be seen
in the following table of lost workday injury and illness rates by
industry division, all of the covered divisions exceeded 75% of the
national average LWDI rate (2.325) for the private sector as a whole,
while the exempted industry divisions had substantially lower rates.
------------------------------------------------------------------------
1998 lost
workday
Industry sector injury and
illness
rate
------------------------------------------------------------------------
Agriculture, forestry and fishing (SIC 01-09).............. 3.9
Mining (SIC 10-14)......................................... 2.9
Construction (SIC 15-17)................................... 4.0
Manufacturing (SIC 20-39).................................. 4.7
[[Page 5944]]
Transportation, communications, electric, gas and sanitary 4.3
services (SIC 40-49)......................................
Wholesale trade (SIC 50 & 51).............................. 3.3
Retail trade (SIC 52-59)................................... 2.7
Finance, Insurance & Real Estate (SIC 60-67)............... 0.7
Services (SIC 70-87)....................................... 2.4
------------------------------------------------------------------------
(U.S. Department of Labor Press Release USDL 98-494, December 16, 1999)
The problems that may be encountered by exempting additional
industries are exemplified by an analysis of the petrochemical industry
and the manufacturers of chemicals and petroleum products, classified
in SICs 28 and 29. If the industry exemption were applied to these
industries, injury and illness records would not be required for highly
specialized plants that make industrial inorganic chemicals, plastics
materials and synthetic resins, pharmaceuticals, industrial organic
chemicals, and petroleum refineries. These industries have relatively
low occupational injury and illness rates, but they are not truly low-
hazard industries. All of these facilities make, use and handle highly
toxic chemicals and consequently have the potential for both acute
overexposure and chronic exposures of their employees to these
substances. These industries, for example, are the industries to which
OSHA health standards, such as the benzene, ethylene oxide, and
methylene chloride standards, apply. Because occupational illnesses,
particularly chronic illnesses, are notoriously underreported (see,
e.g., Exs. 15: 407, 4, 5), the LWDI rates for these industries do not
accurately reflect the level of hazard present in these facilities. In
addition, these types of facilities are prone to major safety and
health problems, including explosions, toxic releases and other events
that often lead to fatalities and serious injuries. The safety and
health problems of these facilities are not limited to workers, but
extend to hazards posed to the general public. In addition, OSHA
frequently inspects these facilities because of their potential for
catastrophic releases, fires, and explosions, and the Part 1904 injury
and illness records have been extremely useful for this purpose.
The Agency finds that continuing, and improving on, the Agency's
longstanding approach of partially exempting those industries in SIC
codes 52-89 that have DART rates, based on 3 years of BLS data, below
75% of the private-sector average strikes the appropriate balance
between the need for injury and illness information on the one hand,
and the paperwork burdens created by recording obligations, on the
other. The BLS Annual Survey will, of course, continue to provide
national job-related statistics for all industries and all sizes of
businesses. As it has done in the past, the BLS will sample employers
in the partially exempt industries and ask each sampled employer to
keep OSHA records for one year. In the following year, BLS will collect
the records to generate estimates of occupational injury and illness
for firms in the partially exempt industries and size classes, and
combine those data with data for other industries to generate estimates
for the entire U.S. private sector. These procedures ensure the
integrity of the national statistics on occupational safety and health.
The list of partially exempted industry sectors in this rule is
based on the current (1987) revision of the SIC manual. The Office of
Management and Budget (OMB) is charged with maintaining and revising
the system of industrial classification that will replace the SIC. The
new system is used by U.S. statistical agencies (including the BLS).
Under the direction of OMB, the U.S. government has adopted a new,
comprehensive system of industrial classification that will replace the
SIC. The new system is called the North American Industrial
Classification System (NAICS). NAICS will harmonize the U.S.
classification system with those of Canada and Mexico and make it
easier to compare various economic and labor statistics among the three
countries. Several commenters expressed concern about this change in
industrial classification systems (see, e.g., Exs. 15: 70, 182, 183,
379). For example, the American Society of Safety Engineers (ASSE)
stated:
The Society is concerned with the recent Office of Management
Budget (OMB), proposal to change the Economic Classification Policy
from the Standard Industrial Classification System to the North
American Industry Classification System. We recommend that OSHA
study what the effect would be of promulgating a new regulation
partially based on SIC codes when these codes could be potentially
replaced/revised with a new classification system (Ex. 15: 182).
Although the NAIC industry classification system has been formally
adopted by the United States, the individual U.S. statistical agencies
(including the BLS) are still converting their statistical systems to
reflect the new codes and have not begun to publish statistics using
the new industry classifications. The new system will be phased into
the nation's various statistical systems over the next several years.
The BLS does not expect to publish the first occupational injury and
illness rates under the new system until the reference year 2003. Given
the lag time between the end of the year and the publication of the
statistics, data for a full three-year period will not be available
before December of 2006.
Because data to revise the Part 1904 industry exemption based on
the NAIC system will not be available for another five years, OSHA has
decided to update the industry exemption list now based on the most
recent SIC-based information available from BLS for the years 1996,
1997 and 1998. OSHA will conduct a future rulemaking to update the
industry classifications to the NAIC system when BLS publishes injury
and illness data that can be used to make appropriate industry-by-
industry decisions.
The proposal inquired whether OSHA should adopt a procedure for
adjusting the industry exemption lists as the injury and illness rates
of various industries change over time. A number of commenters urged
OSHA to update the exemption list periodically (see, e.g., Exs. 15: 27,
87, 170, 181, 199, 272, 280, 359, 374, 375, 392, 407). Some commenters
suggested various time periods, such as annually (Ex. 15: 374), every 3
years (see, e.g., Exs. 15: 87, 181, 199, 407), every 5 years (see,
e.g., Exs. 15: 170, 181, 262, 272, 359, 375), or every 5 to 10 years
(Ex. 15: 392). Southwestern Bell Telephone suggested that the list
should be modified whenever changes in the injury and illness rates
warrant a change (Ex. 15: 27). In the opinion of the National Safety
Council, ``How often the SIC exemption should be updated depends on how
well and how quickly OSHA can communicate changes in the exempt
industry list to those affected. The Council recommends updating the
list every 3 to 5 years'' (Ex. 15: 280).
Several commenters, however, opposed frequent updating of the SIC
exemption list. For example, the Orlando Safety and Health Customer
Council stated: ``Changes to SIC exemptions should be limited to a
minimum of every 5 years. This would reduce confusion'' (Ex. 15: 97).
The National Institute for Occupational Safety and Health (NIOSH)
generally opposed industry exemptions but recommended that, if they
were continued, they be updated as follows:
If OSHA continues to provide this exemption for low injury rate
SICs, NIOSH
[[Page 5945]]
recommends that the list of partially exempt SICs be placed in an
Appendix. Because the injury and illness experience of an industry
can change over time (e.g., SIC 58 and SIC 84 had injury rates at or
below 75% of the private sector average in 1983, but above 75% of
the private sector average in 1990 and 1992), OSHA should
periodically review and modify the list of partially exempt
industries. NIOSH recommends that the criteria for partial
exemptions be placed in the regulatory text, while placing the list
of partially exempt industries in an Appendix as noted so that the
list could be updated periodically by administrative means rather
than by changing the regulation. In addition to the partial
exemption criteria, the regulatory text should specify the interval
(in years) for reviewing and revising the list of those industries
that qualify. NIOSH recommends an interval of 3 years for the review
and revision process (Ex. 15: 407).
OSHA agrees with those commenters who favored regular updating of
the SIC code exemption list. For the list to focus Agency resources
most effectively on the most hazardous industries, it must be up-to-
date. Industries that are successful in lowering their rates to levels
below the exemption threshold should be exempted, while those whose
rates rise sufficiently to exceed the criterion should receive
additional attention. Unfortunately, the change in industry coding
systems from the Standard Industrial Classification (SIC) system to the
North American Industry Classification (NAIC) system will require a
future rulemaking to shift to that system. Therefore, there is no value
in adding an updating mechanism at this time. The automatic updating
issue will be addressed in the same future rulemaking that addresses
the NAIC system conversion.
Partial Exemptions for Employers Under the Jurisdiction of OSHA-
Approved State Occupational Safety and Health Plans
Robert L. Rowan, Jr. expressed a concern that the OSHA State-Plan
States could have differing industry exemptions from those applying to
federal OSHA states, commenting:
In regard to the note in OSHA's Coverage and Exemption Table
that ``some states with their own occupational safety and health
programs do not recognize the federal record keeping exemptions''. I
am deeply concerned. I would prefer that all jurisdictions enforce
the same requirements. This will be confusing and create needless
problems for businesses with sites in numerous states if
requirements are not enforced equally (Ex. 15: 62).
For those States with OSHA-approved State plans, the state is
generally required to adopt Federal OSHA rules, or a State rule that is
at least as effective as the Federal OSHA rule. States with approved
plans do not need to exempt employers from recordkeeping, either by
employer size or by industry classification, as the final Federal OSHA
rule does, although they may choose to do so. For example, States with
approved plans may require records from a wider universe of employers
than Federal OSHA does. These States cannot exempt more industries or
employers than Federal OSHA does, however, because doing so would
result in a State rule that is not as effective as the Federal rule. A
larger discussion of the effect on the State plans can be found in
Section VIII of this preamble, State Plans.
Recordkeeping Under the Requirements of Other Federal Agencies
Section 1904.3 of the final rule provides guidance for employers
who are subject to the occupational injury and illness recording and
reporting requirements of other Federal agencies. Several other Federal
agencies have similar requirements, such as the Mine Safety and Health
Administration (MSHA), the Department of Energy (DOE), and the Federal
Railroad Administration (FRA). The final rule at section 1904.3 tells
the employer that OSHA will accept these records in place of the
employer's Part 1904 records under two circumstances: (1) if OSHA has
entered into a memorandum of understanding (MOU) with that agency that
specifically accepts the other agency's records, the employer may use
them in place of the OSHA records, or (2) if the other agency's records
include the same information required by Part 1904, OSHA would consider
them an acceptable substitute.
OSHA received very few comments on the issue of duplicate
recordkeeping under different agency rules. The Fertilizer Institute
(TFI) recommended that OSHA make the data mandated by OSHA and MSHA
more consistent (Ex. 15:154). However, MSHA and OSHA have different
recordkeeping requirements because the agencies' mandate and uses of
the data differ. The approach OSHA takes in the final rule, which is to
continue to accept data kept by employers under other Federal
requirements if the two federal agencies have made an agreement to do
so, or if the data are equivalent to the data required to be kept by
Part 1904, appears to be the best way to handle the problem raised by
the TFI.
Subpart C. Recordkeeping Forms and Recording Criteria
Subpart C of the final rule sets out the requirements of the rule
for recording cases in the recordkeeping system. It contains provisions
directing employers to keep records of the recordable occupational
injuries and illnesses experienced by their employees, describes the
forms the employer must use, and establishes the criteria that
employers must follow to determine which work-related injury and
illness cases must be entered onto the forms. Subpart C contains
sections 1904.4 through 1904.29.
Section 1904.4 provides an overview of the requirements in Subpart
C and contains a flowchart describing the recording process. How
employers are to determine whether a given injury or illness is work-
related is set out in section 1904.5. Section 1904.6 provides the
requirements employers must follow to determine whether or not a work-
related injury or illness is a new case or the continuation of a
previously recorded injury or illness. Sections 1904.7 through 1904.12
contain the recording criteria for determining which new work-related
injuries and illnesses must be recorded on the OSHA forms. Section
1904.29 explains which forms must be used and indicates the
circumstances under which the employer may use substitute forms.
Section 1904.4 Recording Criteria
Section 1904.4 of the final rule contains provisions mandating the
recording of work-related injuries and illnesses that must be entered
on the OSHA 300 (Log) and 301 (Incident Report) forms. It sets out the
recording requirements that employers are required to follow in
recording cases.
Paragraph 1904.4(a) of the final rule mandates that each employer
who is required by OSHA to keep records must record each fatality,
injury or illness that is work-related, is a new case and not a
continuation of an old case, and meets one or more of the general
recording criteria in section 1904.7 or the additional criteria for
specific cases found in sections 1904.8 through 1904.12. Paragraph (b)
contains provisions implementing this basic requirement.
Paragraph 1904.4(b)(1) contains a table that points employers and
their recordkeepers to the various sections of the rule that determine
which work-related injuries and illnesses are to be recorded. These
sections lay out the requirements for determining whether an injury or
illness is work-related, if it is a new case, and if it meets one or
more of the general recording criteria. In addition, the table contains
a row addressing the application of these and additional criteria to
specific kinds of cases (needlestick and sharps injury cases,
tuberculosis cases, hearing loss
[[Page 5946]]
cases, medical removal cases, and musculoskeletal disorder cases). The
table in paragraph 1904.4(b)(1) is intended to guide employers through
the recording process and to act as a table of contents to the sections
of Subpart C.
Paragraph (b)(2) is a decision tree, or flowchart, that shows the
steps involved in determining whether or not a particular injury or
illness case must be recorded on the OSHA forms. It essentially
reflects the same information as is in the table in paragraph
1904.4(b)(1), except that it presents this information graphically.
The former rule had no tables or flowcharts that served this
purpose. However, the former Recordkeeping Guidelines (Ex. 2) contained
several flowcharts to help employers make decisions and understand the
overall recording process. The proposed rule included a flowchart as
Appendix C to Part 1904--Decision Tree for Recording Occupational
Injuries and Illnesses. OSHA received very few comments in response to
proposed Appendix C, and no commenters objected to the decision tree
concept. The commenters who discussed the decision tree supported it,
and many suggested that it should be incorporated into the computer
software OSHA develops to assist employers with keeping the records
(see, e.g., Exs. 51, 15: 38, 67, 335, 407, 438).
In the final rule, OSHA has decided to include the flowchart
because of its usefulness in depicting the overall recording process.
OSHA has not labeled the flowchart non-mandatory, as some commenters
(see, e.g., Ex. 15: 335) suggested, because the recording of injuries
and illnesses is a mandatory requirement and labeling the flowchart as
non-mandatory could be confusing.
Section 1904.5 Determination of Work-Relatedness
This section of the final rule sets out the requirements employers
must follow in determining whether a given injury or illness is work-
related. Paragraph 1904.5(a) states that an injury or illness must be
considered work-related if an event or exposure in the work environment
caused or contributed to the injury or illness or significantly
aggravated a pre-existing injury or illness. It stipulates that, for
OSHA recordkeeping purposes, work relationship is presumed for such
injuries and illnesses unless an exception listed in paragraph
1904.5(b)(2) specifically applies.
Implementation requirements are set forth in paragraph (b) of the
final rule. Paragraph (b)(1) defines ``work environment'' for
recordkeeping purposes and makes clear that the work environment
includes the physical locations where employees are working as well as
the equipment and materials used by the employee to perform work.
Paragraph (b)(2) lists the exceptions to the presumption of work-
relatedness permitted by the final rule; cases meeting the conditions
of any of the listed exceptions are not considered work-related and are
therefore not recordable in the OSHA recordkeeping system.
This section of the preamble first explains OSHA's reasoning on the
issue of work relationship, then discusses the exceptions to the
general presumption and the comments received on the exceptions
proposed, and then presents OSHA's rationale for including paragraphs
(b)(3) through (b)(7) of the final rule, and the record evidence
pertaining to each.
Section 8(c)(2) of the OSH Act directs the Secretary to issue
regulations requiring employers to record ``work-related'' injuries and
illnesses. It is implicit in this wording that there must be a causal
connection between the employment and the injury or illness before the
case is recordable. For most types of industrial accidents involving
traumatic injuries, such as amputations, fractures, burns and
electrocutions, a causal connection is easily determined because the
injury arises from forces, equipment, activities, or conditions
inherent in the employment environment. Thus, there is general
agreement that when an employee is struck by or caught in moving
machinery, or is crushed in a construction cave-in, the case is work-
related. It is also accepted that a variety of illnesses are associated
with exposure to toxic substances, such as lead and cadmium, used in
industrial processes. Accordingly, there is little question that cases
of lead or cadmium poisoning are work-related if the employee is
exposed to these substances at work.
On the other hand, a number of injuries and illnesses that occur,
or manifest themselves, at work are caused by a combination of
occupational factors, such as performing job-related bending and
lifting motions, and factors personal to the employee, such as the
effects of a pre-existing medical condition. In many such cases, it is
likely that occupational factors have played a tangible role in causing
the injury or illness, but one that cannot be readily quantified as
``significant'' or ``predominant'' in comparison with the personal
factors involved.
Injuries and illnesses also occur at work that do not have a clear
connection to a specific work activity, condition, or substance that is
peculiar to the employment environment. For example, an employee may
trip for no apparent reason while walking across a level factory floor;
be sexually assaulted by a co-worker; or be injured accidentally as a
result of an act of violence perpetrated by one co-worker against a
third party. In these and similar cases, the employee's job-related
tasks or exposures did not create or contribute to the risk that such
an injury would occur. Instead, a causal connection is established by
the fact that the injury would not have occurred but for the conditions
and obligations of employment that placed the employee in the position
in which he or she was injured or made ill.
The theory of causation OSHA should require employers to use in
determining the work-relationship of injuries and illnesses was perhaps
the most important issue raised in this rulemaking. Put simply, the
issue is essentially whether OSHA should view cases as being work-
related under a ``geographic'' or ``positional'' theory of causation,
or should adopt a more restrictive test requiring that the occupational
cause be quantified as ``predominant,'' or ``significant,'' or that the
injury or illness result from activities uniquely occupational in
nature. This issue generated substantial comment during this
rulemaking, and the Agency's evaluation of the various alternative
tests, and its decision to continue its historic test, are discussed
below.
The final rule's test for work-relationship and its similarity
to the former and proposed rules.--The final rule requires that
employers consider an injury or illness to be ``work-related'' if an
event or exposure in the work environment either caused or
contributed to the resulting condition or significantly aggravated a
pre-existing injury or illness. Work relatedness is presumed for
injuries and illnesses resulting from events or exposures occurring
in the work environment, unless an exception in Sec. 1904.5(b)(2)
specifically applies.
Under paragraph 1904.5(b)(1), the ``work environment'' means ``the
establishment and other locations where one or more employees are
working or are present as a condition of their employment. The work
environment includes not only physical locations, but also equipment or
materials used by the employee during the course of his or her work.''
The final rule's definition of work-relationship is essentially the
same as that in both the former and proposed rules except for the final
rule's requirement that the work event or exposure ``significantly''
aggravate a
[[Page 5947]]
pre-existing injury or illness. The Guidelines interpreting the former
rule stated that
Work-relationship is established under the OSHA recordkeeping
system when the injury or illness results from an event or exposure
in the work environment. The work environment is primarily composed
of: (1) The employer's premises, and (2) other locations where
employees are engaged in work-related activities or are present as a
condition of their employment. (Ex. 2 at p. 32).
The proposed rule also contained a similar definition of ``work-
related'' and ``work environment.'' The only significant difference
between the proposed and the final rule definitions is that the
proposed rule also would not have required a ``significant''
aggravation of a pre-existing condition before it became recordable;
under the proposal, any aggravation would have been sufficient (see 61
FR 4059).
The Alternative Tests for Work-Relationship
Although OSHA proposed to continue its existing definition of work-
relationship, it sought comment on the following three alternative
tests:
1. Exclude cases with any evidence of non-work etiology. Only cases
where the work event or exposure was the sole causative factor would be
recorded;
2. Record only cases where work was the predominant causative
factor;
3. Record all cases where the work event or exposure had any
possibility of contributing to the case (emphasis added). (61 FR 4045)
Comments on the ``Quantified Occupational Cause'' Test
The first two alternative tests described in the proposal would
have required the employer to quantify the contribution of occupational
factors as compared to that of personal factors. These tests are
referred to in the Legal Authority section, and in this preamble, as
the ``quantified occupational cause'' tests. Of these tests,
Alternative 2--record only injuries and illnesses predominantly caused
by occupational factors--received the most comment. Typical of these
comments were those of the Dow Chemical Company, which expressed the
view of many in industry that ``[a] system that labels an injury or
illness attributable to the workplace even though the workplace
contribution may be insignificant does not lead to an effective,
credible or accurate program'' (Ex. 15: 335). Other commenters stated
that recording only those cases where work was the predominant cause
would improve the system by focusing attention on cases that are
amenable to employer abatement (see, e.g., Exs. 22, 15: 13, 27, 34, 38,
52, 60, 69, 71, 72, 82, 97, 102, 108, 109, 122, 136, 137, 141, 146,
147, 149, 152, 154, 159, 163, 169, 171, 174, 176, 181, 197, 198, 199,
200, 201, 214, 218, 224, 230, 231, 238, 239, 260, 262, 265, 266, 272,
273, 277, 278, 287, 288, 290, 297, 301, 302, 303, 307, 313, 317, 318,
330, 335, 346, 352, 353, 370, 375, 382, 378, 383, 384, 386, 388, 396,
401, 402, 404, 405, 425, 426, 430).
Some commenters (see, e.g., Exs. 15: 185, 199, 205, 332, 338, 349,
354, 358, 375, 421, 440) offered a slight modification on Alternative
2. They suggested that using a term other than predominant, such as
``substantial'' or ``significant,'' would avoid the need to define
``predominant'' as a percentage. For example, United Technologies (Ex.
15: 440) opposed ``placing a percentage on the degree of contribution''
because doing so would not be practical. Further, according to this
commenter, ``work relationship should be established in cases where the
workplace contributed substantially to the injury or illness, as
determined by an occupational physician.'' Arguing along the same
lines, the American Petroleum Institute (API) (Ex. 15: 375) stated that
it supported ``in principle the work-relatedness concept presented by
OSHA as Alternative 2, but feels ``predominant'' might be too difficult
to administer as a fundamental criterion. API proposes that work-
relatedness should exist when an event or exposure in the workplace is
a significant factor resulting in an injury or illness. * * *''
Organization Resource Counselors, Inc. (Ex. 15: 358) added: ``[T]he
Congressional intent in drafting these sections was to require the
collection of work-related information about significant work-related
injuries and illnesses.'' The General Electric Company (Ex. 15: 349)
said that ``OSHA needs to allow the facility the flexibility to record
only those cases that are ``more likely than not'' related to workplace
exposure or tasks. This determination can be made during the incident
investigation. A good test of work-relatedness is whether the injury
would have been prevented by full compliance with the applicable OSHA
standard.''
Proposed Alternative 1, which would have required the recording
only of cases where work was the sole cause, was also supported by a
large number of commenters (see, e.g., Exs. 15: 9, 39, 87, 95, 119,
123, 145, 151, 152, 179, 180, 183, 185, 204, 205, 225, 229, 234, 242,
259, 263, 269, 270, 304, 341, 363, 377, 389, 393, 414, 433, 443).
Typical of this view was the comment of the American Health Care
Association (Ex. 15: 341):
If OSHA's primary concern is to address those workplace hazards
or risks that cause or may cause employee injury/illness then the
agency should confine recordability to those injuries and illnesses
that are directly caused by a workplace event or exposure. This
approach, in turn, will focus the employer's attention on those
unsafe workplace conditions that need to be corrected to protect all
workers exposed to or at risk from the unsafe conditions.
The National Federation of Independent Business (Ex. 15: 304)
supported Alternative 1 ``because under such a system evidence of non-
work-related factors is excluded thus the decision-making process is
dramatically simplified and the tally is very credible.'' The Painting
and Decorator Contractors of America (Ex. 15: 433) added: ``[T]his
approach is also consistent with OSHA's intent (and the Congressional
mandate in the Paperwork Reduction Act of 1995) to reduce compliance
burdens as this would be the simplest method for employers to apply.''
Comments on the ``Unique Occupational Activities'' Test
Some commenters favored a closely related test for work
relationship that would place primary emphasis on the nature of the
activity that the employee was engaged in when injured or made ill.
This test is referred to the Legal Authority section and in this
preamble section as the ``unique occupational activities'' test. Its
supporters argued that whether an injury or illness occurs or manifests
itself at work is less important than whether or not the harm has been
caused by activities or processes peculiar to the workplace. The AISI
argued that:
[I]t is clear that Congress intended OSHA's authority to
regulate to be limited to ``occupational hazards'' and conceived of
such hazards as ``processes and materials'' peculiar to the
workplace. * * * Congress did not give OSHA the authority to
regulate hazards if they ``grow out of economic and social factors
which operate primarily outside the workplace. The employer neither
controls nor creates these factors as he controls or creates work
processes and materials.'' Congress was concerned with dangerous
conditions peculiar to the workplace; it did not have in mind the
recording of illnesses simply because they appear at work (internal
citations omitted) (Ex. 15: 395).
Dow Chemical made a similar point in arguing that the criteria for
determining work-relationship should include whether the activity the
employee was engaged in at the time of the injury or onset of illness
was for the direct benefit of the employer or was a required part of
the job (Ex. 15: 335B).
[[Page 5948]]
According to Dow, the activity-based test would be more accurate than
the geographic presumption (OSHA's historic test) because it would omit
injuries due to hazards beyond the employer's control:
Examples to illustrate this point include the employee who
during his break attempts to remove a plastic insert in a condiment
container with a knife and ends up cutting himself which requires
three stitches. This activity, while it happened on company grounds,
was not for the direct benefit of the company nor a requirement of
his job, and there was no way for the employer to prevent it (Ex.
15: 335B).
Comments on OSHA's Historical Test
A significant number of commenters supported OSHA's long-standing
test in which work factors must be a cause, but not necessarily a
``significant'' or ``predominant'' cause, and a geographic presumption
applies if ``events or exposures'' in the work environment either
caused or contributed to the resulting condition, or aggravated a pre-
existing condition (see, e.g., Exs. 15: 74, 153, 362, 369, 394, 407,
418, 429). For example, NIOSH (Ex. 15: 407) favored this approach
because ``[o]verreported cases can be identified and accounted for in
data analysis, in contrast to the other alternatives which stress
specificity at the expense of sensitivity and would result in
unreported cases.'' The AFL-CIO argued that:
* * * [c]apturing all workplace illnesses and injuries, even
those for which the predominant cause cannot be proven to be work-
related, can lead to early recognition of problems and abatement of
hazardous conditions. Our experience has shown us that when
comprehensive records of all possible cases are kept, patterns of
injury and illness emerge, enabling us to target problem areas/
factors that previously may not have been associated with that
specific work environment. The inclusion of all cases will lead to
prevention strategies that can reduce the risk of serious illness
and injury to workers. Inclusion of all cases that have a workplace
link will also assist in the recognition of diseases that are caused
by synergistic effects. (Ex. 15: 418)
The American Industrial Hygiene Association (AIHA) argued that
continuing OSHA's historic approach to work-relationship is
particularly important in the case of occupational illnesses because:
Occupational illnesses differ from injuries in that minor or
early symptoms of illness are often an important indicator of a more
serious disease state, while a minor injury usually goes away
without further developments. By the time serious disabling symptoms
have surfaced. a disease may be very far progressed and
irreversible. Training courses such as Hazard Communication are
geared toward educating the workforce to recognize and report
symptoms of overexposure, presumably for disease prevention. AIHA
does not want this information to be de-emphasized or lost (Ex. 15:
153).
Comments on the ``Mere Possibility'' Test
Alternative 3 described in the proposal would have required that an
injury or illness be considered work related ``if the worker ever
experienced a workplace event or exposure that had any possibility of
playing a role in the case.'' This ``mere possibility'' test is
substantially different than OSHA's historical definition of work-
relationship, which required that the injury or illness have a tangible
connection with the work environment. Although some commenters
supported Alternative 3, apparently on the assumption that it was in
fact OSHA's proposed definition, analysis of these comments suggests
that the parties involved recognized that an injury must have a real,
not merely theoretical, link to work to be work-related. No commenter
suggested a rationale for recording cases having only a theoretical or
speculative link to work.
OSHA's Reasons for Rejecting the Alternative Tests for Work-
Relationship
OSHA has given careful consideration to all of the comments and
testimony received in this rulemaking and has decided to continue to
rely in the final rule on the Agency's longstanding definition of work-
relationship, with one modification. That modification is the addition
of the word ``significantly'' before ``aggravation'' in the definition
of work-relatedness set forth in final rule section 1904.5. The
relevant portion of the section now states ``an injury or illness is to
be considered work-related if an event or exposure in the work
environment either caused or contributed to the injury or illness or
significantly aggravated a pre-existing injury or illness'' (emphasis
added).
In the final rule, OSHA has restated the presumption of work-
relationship to clarify that it includes any non-minor injury or
illness occurring as a result of an event or exposure in the work
environment, unless an exception in paragraph 1904.5(b)(2) specifically
applies. OSHA believes that the final rule's approach of relying on the
geographic presumption, with a limited number of exceptions, is more
appropriate than the alternative approaches, for the following reasons.
The Geographic Presumption Is Supported by the Statute
One important distinction between the geographic test for causation
and the alternative causation tests is that the geographic test treats
a case as work-related if it results in whole or in part from an event
or exposure occurring in the work environment, while the alternative
tests would only cover cases in which the employer can determine the
degree to which work factors played a causal role. Reliance on the
geographic presumption thus covers cases in which an event in the work
environment is believed likely to be a causal factor in an injury or
illness but the effect of work cannot be quantified. It also covers
cases in which the injury or illness is not caused by uniquely
occupational activities or processes. These cases may arise, for
example, when: (a) an accident at work results in an injury, but the
cause of the accident cannot be determined; (b) an injury or illness
results from an event that occurs at work but is not caused by an
activity peculiar to work, such as a random assault or an instance of
horseplay; (c) an injury or illness results from a number of factors,
including both occupational and personal causes, and the relative
contribution of the occupational factor cannot be readily measured; or
(d) a pre-existing injury or illness is significantly aggravated by an
event or exposure at work.
As discussed in the Legal Authority section, the statute's language
and the Legislative History support a definition of work-relationship
that encompasses all injuries and illnesses resulting from harmful
events and exposures in the work environment, not only those caused by
uniquely occupational activities or processes. A number of commenters
acknowledged the broad purposes served by OSHA's recordkeeping
requirements and urged continued reliance on the former rule's
definition of ``work-related'' (see, e.g., Exs. 15: 65, 198, 350, 369,
418). For example, the AFL-CIO noted, ``[o]ur experience has shown us
that when comprehensive records of all possible cases are kept,
patterns of injury and illness emerge, enabling us to target problem
areas/factors that previously may not have been associated with that
specific work environment'' (Ex. 15: 418) (emphasis added).
On the other hand, those commenters favoring the ``quantified
occupational cause'' test or the ``unique occupational activity'' test
maintained that injury and illness records have more limited functions.
Some commenters argued that because OSHA's mission is to
[[Page 5949]]
eliminate preventable occupational injuries and illnesses, the
determination of work-relationship must turn on whether the case could
have been prevented by the employer's safety and health program. The
Dow Chemical Company 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 proposal's second alternative (``predominant cause'') because
cases that are ``predominantly caused by workplace conditions'' are the
ones most likely to be preventable by workplace controls. Their comment
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). Other commenters opposed the recording of
cases in which the injury or illness arises while the employee is on
break, in the rest room, or in storage areas located on the employer's
premises. These commenters claimed that use of the geographic
presumption results in recording many injuries and illnesses that have
little or no relationship to the work environment (see, e.g., Exs. 15:
231, 423, 424G).
OSHA believes that the views of Dow Chemical and others in support
of the proposal's alternative tests for work-relationship reflect too
narrow a reading of the purposes served by the OSHA 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 providing information for future scientific research
on the nature of causal connections between the work environment and
the injuries and illnesses sustained by employees. For example, the
records kept by employers under Part 1904 produced useful data on
workplace assaults and murders, which has permitted OSHA, employers,
and others to focus on the issue of violence in the workplace. This has
led, in turn, to efforts to reduce the number of such cases by
implementing preventive measures. Although this issue was not
anticipated by the 1904 system, the broad collection of injury, illness
and fatality data allowed useful information to be extracted from the
1904 data. As discussed in the Legal Authority section, these purposes
militate in favor of a general presumption of work-relationship for
injuries and illnesses that result from events or exposures occurring
in the work environment, with exceptions for specific types of cases
that may safely be excluded without significantly impairing the
usefulness of the national job-related injury and illness database.
At the same time, OSHA is sensitive to the concerns of some
commenters that the injury and illness records are perceived as a
measure of the effectiveness of the employer's compliance with the Act
and OSHA standards. OSHA emphasizes that the recording of an injury or
illness on the Log does not mean that a violation has occurred. The
explanatory materials accompanying the revised OSHA Forms 300 and 301
contain the following statement emphasizing this point: ``Cases listed
on the Log of Work-Related Injuries and Illnesses are not necessarily
eligible for Workers Compensation or other insurance benefits. Listing
a case on the Log does not mean that the employer or worker was at
fault or that an OSHA standard was violated.''
The Alternative Tests for Work-Relationship Will Likely Lead Both to
Inconsistent Determinations and to Underreporting of Cases
Under the first two alternative tests for work-relationship
described in the proposal, the decision on work-relationship would
depend upon the degree to which the injury or illness resulted from
distinctly occupational causes. Whether labeled ``sole cause,''
``predominant cause,'' or ``significant cause,'' these alternative
tests would require the employer, in each case, to distinguish between
the occupational and non-occupational causal factors involved, and to
weigh the contribution of the occupational factor or factors. Requiring
the occupational cause to be quantified in this way creates practical
problems militating against the use of these alternative tests in the
final recordkeeping rule.
The most serious problem is that there is no reliable, objective
method of measuring the degree of contribution of occupational factors.
The absence of a uniform methodology for assessing the extent of work
contribution caused several industry commenters to endorse the former
rule's position on work-relationship. For example, the American
Automobile Manufacturers Association (AAMA) noted that an ideal system
would focus on cases in which the work environment was a major
contributor to the injury or illness. Nevertheless, the AAMA argued
against adopting the predominant cause test, stating: ``until a system
is developed in which employers can measure objectively and
consistently whether or not the work environment is a major contributor
to a workplace injury or illness, we favor continuing the definition of
work-relationship as it currently exists'' (Ex. 15: 409). The Ford
Motor Co. also argued in favor of continuing the existing definition:
Ford feels that the work environment should be a major
contributor to an injury or illness for the case to be considered
work-related. However, we are unsure how employers can measure
objectively, consistently and equally whether the work environment
is a major contributor. The use of a checklist by a health care
provider to determine whether the work environment was a major
contributor for a case to be considered work-related would be overly
burdensome and subjective. Until a system is developed by which
employers can measure objectively, consistently and equally whether
or not the work environment is a major contributor to a workplace
injury or illness, we favor continuing the definition of work
relationship as it currently exists (Ex. 15: 347).
Based on a review of the record, OSHA agrees with those commenters
who supported a continuation of the Agency's prior practice with regard
to reliance on the geographic presumption for determinations of work-
relatedness. OSHA finds that this approach, which includes all cases
with a tangible connection with work, better serves the purposes of
recordkeeping. Accordingly, the final rule relies on the geographic
presumption, with a few limited exceptions, as the recordkeeping
system's test for work-relationship.
Who Makes the Determination?
In addition to the definition of work-relatedness, commenters
addressed the issue of who should make the determination of work-
relatedness in a given case (see, e.g., Exs. 15: 27, 35, 102, 105, 127,
193, 221, 281, 305, 308, 324, 325, 341, 345, 347, 385, 387, 390, 392,
[[Page 5950]]
397, 420). Some commenters believed that a trained medical professional
should make this determination, while others argued that the employer
should make the ultimate decision about the work-relatedness of
occupational injuries and illnesses. Some supported the use of the
work-relatedness checklist for specific disorders included by OSHA in
the proposal. For example, the American Public Health Association (Ex.
15: 341) commented:
We also believe that work-relatedness should only be established
by the documented determination of a qualified health care provider
with specific training related to the type of case reported. OSHA's
checklist for determining work-relatedness. . . .should be used and
expanded to include potentially recordable cases, i.e., excluding
first aid treatment.
The Dow Corning Corporation (Ex. 15: 374) argued that the employer
should make the determination, albeit with the assistance of a health
care professional:
This assessment process should include interviews with
knowledgeable people regarding the duties and hazards of the
employee's job tasks in addition to the employee interview. If
inaccurate or misleading information is given to the health care
provider improper or inaccurate conclusions may be reached with
regard to the incident cause. A health care provider's assessment of
work-relationship is typically viewed as difficult to overcome, even
if it is made with incomplete information. We recommend that the
health care provider's checklist be used as only one input in the
work-relationship decision and that the final decision should still
rest with the employer.
Deere and Company (Ex. 15: 253) opposed leaving the determination
of work-relatedness to a health care professional:
We strongly disagree with any provision that would allow a
physician to make a final determination of work-relatedness. The
only time a physician should have any input into the actual
determination of work-relatedness is if they are knowledgeable of
the employer's workplace environment and the specific job tasks
performed by employees. Frequently, physicians will state that a
condition was caused by an employee's job without having any
knowledge of the specific tasks being performed by the employee.
This is an unacceptable usurpation of employers' rights and we
oppose any attempt to codify it in a federal regulation.
However, several participants opposed making any work-relatedness
checklist mandatory (such as the one OSHA proposed) (see, e.g., Exs.
15: 68, 170, 201, 283, 434). The American Trucking Association's
comment (Ex. 15: 397) was typical of this view:
We do not, however, support a requirement that employers must
use a mandatory checklist to determine work-relatedness. . . .
Because the checklist asks for medical information, the employer
would find itself in conflict with the confidentiality requirements
imposed under the Americans With Disabilities Act. 29 C.F.R.
Sec. 1630.14. Moreover, a mandatory checklist would be unnecessarily
time-consuming and subjective. Finally, we note that inclusion of
item 5(b), ``possible work contribution,'' biases the checklist in
favor of work-relatedness. In the absence of a clear indication of
whether or not the workplace caused or substantially caused the
condition, asking a provider or employee if it were ``possible''
that the workplace contributed to or aggravated the injury/illness
invites an affirmative response.
OSHA has concluded that requiring employers to rely on a health
care professional for the determination of the work-relatedness of
occupational injuries and illnesses would be burdensome, impractical,
and unnecessary. Small employers, in particular, would be burdened by
such a provision. Further, if the professional is not familiar with the
injured worker's job duties and work environment, he or she will not
have sufficient information to make a decision about the work-
relatedness of the case. OSHA also does not agree that health care
professional involvement is necessary in the overwhelming majority of
cases. Employers have been making work-relatedness determinations for
more than 20 years and have performed this responsibility well in that
time. This does not mean that employers may not, if they choose, seek
the advice of a physician or other licensed health care professional to
help them understand the link between workplace factors and injuries
and illnesses in particular cases; it simply means that OSHA does not
believe that most employers will need to avail themselves of the
services of such a professional in most cases.
Accordingly, OSHA has concluded that the determination of work-
relatedness is best made by the employer, as it has been in the past.
Employers are in the best position to obtain the information, both from
the employee and the workplace, that is necessary to make this
determination. Although expert advice may occasionally be sought by
employers in particularly complex cases, the final rule provides that
the determination of work-relatedness ultimately rests with the
employer.
The Final Rule's Exceptions to the Geographic Presumption
Paragraph 1904.5(b)(2) of the final rule contains eight exceptions
to the work environment presumption that are intended to exclude from
the recordkeeping system those injuries and illnesses that occur or
manifest in the work environment, but have been identified by OSHA,
based on its years of experience with recordkeeping, as cases that do
not provide information useful to the identification of occupational
injuries and illnesses and would thus tend to skew national injury and
illness statistics. These eight exceptions are the only exceptions to
the presumption permitted by the final rule.
(i) Injuries or illnesses will not be considered work-related if,
at the time of the injury or illness, the employee was present in the
work environment as a member of the general public rather than as an
employee. This exception, which is codified at paragraph
1904.5(b)(2)(i), is based on the fact that no employment relationship
is in place at the time an injury or illness of this type occurs. A
case exemplifying this exception would occur if an employee of a retail
store patronized that store as a customer on a non-work day and was
injured in a fall. This exception allows the employer not to record
cases that occur outside of the employment relationship when his or her
establishment is also a public place and a worker happens to be using
the facility as a member of the general public. In these situations,
the injury or illness has nothing to do with the employee's work or the
employee's status as an employee, and it would therefore be
inappropriate for the recordkeeping system to capture the case. This
exception was included in the proposal, and OSHA received no comments
opposing its adoption.
(ii) Injuries or illnesses will not be considered work-related if
they involve symptoms that surface at work but result solely from a
non-work-related event or exposure that occurs outside the work
environment. OSHA's recordkeeping system is intended only to capture
cases that are caused by conditions or exposures arising in the work
environment. It is not designed to capture cases that have no
relationship with the work environment. For this exception to apply,
the work environment cannot have caused, contributed to, or
significantly aggravated the injury or illness. This exception is
consistent with the position followed by OSHA for many years and
reiterated in the final rule: that any job-related contribution to the
injury or illness makes the incident work-related, and its corollary--
that any injury or illness to which work makes no actual contribution
is not work-related. An example of this type of injury would be a
diabetic incident that occurs while an employee is working. Because no
event or exposure at work contributed in any
[[Page 5951]]
way to the diabetic incident, the case is not recordable. This
exception allows the employer to exclude cases where an employee's non-
work activities are the sole cause of the injury or illness. The
exception was included in the proposal, and OSHA received no comments
opposing its adoption.
(iii) Injuries and illnesses will not be considered work-related if
they result solely from voluntary participation in a wellness program
or in a medical, fitness, or recreational activity such as blood
donation, physical, flu shot, exercise classes, racquetball, or
baseball. This exception allows the employer to exclude certain injury
or illness cases that are related to personal medical care, physical
fitness activities and voluntary blood donations. The key words here
are ``solely'' and ``voluntary.'' The work environment cannot have
contributed to the injury or illness in any way for this exception to
apply, and participation in the wellness, fitness or recreational
activities must be voluntary and not a condition of employment.
This exception allows the employer to exclude cases that are
related to personal matters of exercise, recreation, medical
examinations or participation in blood donation programs when they are
voluntary and are not being undertaken as a condition of work. For
example, if a clerical worker was injured while performing aerobics in
the company gymnasium during his or her lunch hour, the case would not
be work-related. On the other hand, if an employee who was assigned to
manage the gymnasium was injured while teaching an aerobics class, the
injury would be work-related because the employee was working at the
time of the injury and the activity was not voluntary. Similarly, if an
employee suffered a severe reaction to a flu shot that was administered
as part of a voluntary inoculation program, the case would not be
considered work-related; however, if an employee suffered a reaction to
medications administered to enable the employee to travel overseas on
business, or the employee had an illness reaction to a medication
administered to treat a work-related injury, the case would be
considered work-related.
This exception was included in the proposal, and received support
from a number of commenters (see, e.g., Exs. 15: 147, 181, 188, 226,
281, 304, 341, 345, 363, 348, 373). Other commenters supported this
proposal but suggested consolidating it with the proposed exception for
voluntary activities away from the employer's establishment (see, e.g.,
Exs. 15-176, 231, 248, 249, 250, 273, 301). OSHA has decided not to
combine this exception with another exception because questions are
often asked about injuries and illnesses that arise at the employer's
establishment and the Agency believes that a separate exception
addressing voluntary wellness programs and other activities will
provide clearer direction to employers.
(iv) Injuries and illnesses will not be considered work-related if
they are solely the result of an employee eating, drinking, or
preparing food or drink for personal consumption (whether bought on the
premises or brought in). This exception responds to a situation that
has given rise to many letters of interpretation and caused employer
concern over the years. An example of the application of this exception
would be a case where the employee injured himself or herself by
choking on a sandwich brought from home but eaten in the employer's
establishment; such a case would not be considered work-related under
this exception. On the other hand, if the employee was injured by a
trip or fall hazard present in the employer's lunchroom, the case would
be considered work-related. In addition, a note to the exception makes
clear that if an employee becomes ill as a result of ingesting food
contaminated by workplace contaminants such as lead, or contracts food
poisoning from food items provided by the employer, the case would be
considered work-related. As a result, if an employee contracts food
poisoning from a sandwich brought from home or purchased in the company
cafeteria and must take time off to recover, the case is not considered
work related. On the other hand, if an employee contracts food
poisoning from a meal provided by the employer at a business meeting or
company function and takes time off to recover, the case would be
considered work related. Food provided or supplied by the employer does
not include food purchased by the employee from the company cafeteria,
but does include food purchased by the employer from the company
cafeteria for business meetings or other company functions. OSHA
believes that the number of cases to which this exception applies will
be few. This exception was included in the proposal and received
generally favorable comments (see, e.g., Exs. 15: 31, 78, 105, 159,
176, 181, 184, 188, 345, 359, 428).
(v) Injuries and illnesses will not be considered work-related if
they are solely the result of employees doing personal tasks (unrelated
to their employment) at the establishment outside of their assigned
working hours. This exception, which responds to inquiries received
over the years, allows employers limited flexibility to exclude from
the recordkeeping system situations where the employee is using the
employer's establishment for purely personal reasons during his or her
off-shift time. For example, if an employee were using a meeting room
at the employer's establishment outside of his or her assigned working
hours to hold a meeting for a civic group to which he or she belonged,
and slipped and fell in the hallway, the injury would not be considered
work-related. On the other hand, if the employee were at the employer's
establishment outside his or her assigned working hours to attend a
company business meeting or a company training session, such a slip or
fall would be work-related. OSHA also expects the number of cases
affected by this exception to be small. The comments on this exception
are discussed in more detail in the section concerning proposed
Exception B-5, Personal Tasks Unrelated To Employment Outside of Normal
Working Hours, found later in this document.
(vi) Injuries and illnesses will not be considered work-related if
they are solely the result of personal grooming, self-medication for a
non-work-related condition, or are intentionally self-inflicted. This
exception allows the employer to exclude from the Log cases related to
personal hygiene, self-administered medications and intentional self-
inflicted injuries, such as attempted suicide. For example, a burn
injury from a hair dryer used at work to dry the employee's hair would
not be work-related. Similarly, a negative reaction to a medication
brought from home to treat a non-work condition would not be considered
a work-related illness, even though it first manifested at work. OSHA
also expects that few cases will be affected by this exception.
(vii) Injuries will not be considered work-related if they are
caused by motor vehicle accidents occurring in company parking lots or
on company access roads while employees are commuting to or from work.
This exception allows the employer to exclude cases where an employee
is injured in a motor vehicle accident while commuting from work to
home or from home to work or while on a personal errand. For example,
if an employee was injured in a car accident while arriving at work or
while leaving the company's property at the end of the day, or while
driving on his or her lunch hour to run an errand, the case would not
be considered work-related. On the other hand, if an employee was
injured in a car accident while leaving
[[Page 5952]]
the property to purchase supplies for the employer, the case would be
work-related. This exception represents a change from the position
taken under the former rule, which was that no injury or illness
occurring in a company parking lot was considered work-related. As
explained further below, OSHA has concluded, based on the evidence in
the record, that some injuries and illnesses that occur in company
parking lots are clearly caused by work conditions or activities--e.g.,
being struck by a car while painting parking space indicators on the
pavement of the lot, slipping on ice permitted to accumulate in the lot
by the employer--and by their nature point to conditions that could be
corrected to improve workplace safety and health.
(viii) Common colds and flu will not be considered work-related.
Paragraph 1904.5(b)(2)(viii) allows the employer to exclude cases
of common cold or flu, even if contracted while the employee was at
work. However, in the case of other infectious diseases such as
tuberculosis, brucellosis, and hepatitis C, employers must evaluate
reports of such illnesses for work relationship, just as they would any
other type of injury or illness.
(ix) Mental illness will not be considered work-related unless the
employee voluntarily provides the employer with an opinion from a
physician or other licensed health care professional with appropriate
training and experience (psychiatrist, psychologist, psychiatric nurse
practitioner, etc.) stating that the employee has a mental illness that
is work-related.
Exception (ix) is an outgrowth of proposed Exception B-11--Mental
illness, unless associated with post-traumatic stress. There were more
than 70 comments that addressed the issue of mental illness
recordkeeping. Two commenters suggested that OSHA postpone any decision
on the issue: the National Safety Council (Ex. 15: 359) recommended
further study, and the AFL-CIO (Ex. 15: 418) stated that the problem of
mental illness in the workplace was so prevalent and so important that
it should be handled in a separate rulemaking devoted to this issue.
A few commenters, including NIOSH (Ex. 15: 407), the American
Psychological Association (Ex. 15: 411), the AFL-CIO (Ex. 14: 418), the
United Steelworkers of America (Ex. 15: 429), and the United
Brotherhood of Carpenters Health and Safety Fund of North America (Ex.
15: 350) argued that recording should not be limited to post-traumatic
stress as OSHA had proposed but should instead include a broader range
of mental disorders. The primary arguments of this group of comments
were:
Workers are afflicted with a number of mental disorders
caused or exacerbated by work, and the statistics should include those
disorders just as they include physical disorders;
If the records include only post-traumatic stress as a
mental disorder, many work-related cases of mental illness will go
unreported (6,000 mental illness cases are reported to the BLS and
involve days away from work, but less than 10% of these are post-
traumatic stress cases), and the statistics will be skewed and
misinterpreted;
Workers' compensation does not restrict compensable mental
illnesses to post-traumatic stress cases;
Employers are recording and reporting all mental disorders
now and thus would not be burdened by continuing the practice.
Arguments in support of treating mental illnesses no differently
from any other injury or illness were made by the American
Psychological Association (Ex. 15: 411):
The American Psychological Association strongly opposes OSHA's
proposal to consider a mental illness to be work related only if it
is ``associated with post-traumatic stress.'' We feel that this
proposal disregards an accumulating body of research showing the
relationship between mental health/illness and workplace stressors.
Mental illness associated with post traumatic stress is only one
form of mental illness and use of this singular definition would
exclude much of the mental illness affecting our nation's workforce.
Job stress is perhaps the most pervasive occupational health
problem in the workplace today. There are a number of emotional and
behavioral results and manifestations of job stress, including
depression and anxiety. These mental disorders have usually been
captured under the ``mental illness'' category but would no longer
be recognized if the proposed reporting guidelines were enacted.
The 1985 National Health Interview Survey (Shilling & Brackbill,
1987) indicated that approximately 11 million workers reported
health-endangering levels of ``mental stress'' at work. A large and
growing body of literature on occupational stress has identified
certain job and organizational characteristics as having deleterious
effects on the psychological and physical health of workers,
including their mental health. These include high workload demands
coupled with low job control, role ambiguity and conflict, lack of
job security, poor relationships with coworkers and supervisors, and
repetitive, narrow tasks (American Psychological Association, 1996).
These include role stressors and demands in excess of control. More
precise analyses reveal that specific occupations and job factors
present particular risks. For example, machine-paced workers
(involving limited worker control of job demands) have one of the
highest levels of anxiety, depression, and irritation of 24
occupations studied (Caplan et al., 1975). Health professionals
(e.g., physicians, dentists, nurses, and health technologists) have
higher than expected rates of suicide which is most often related to
depression (Milham, 1983) and of alcohol and drug abuse (Hoiberg,
1982). Nurses and other health care workers have increased rates of
hospitalizations for mental disorders (Gundersson & Colcord, 1982;
Hoiberg, 1982). This information about specific risks within
different occupations provides important information for possible
intervention and training to improve conditions while at the same
time, indicating the possibility of specific stressors that need to
be addressed within the job. This type information would be lost
with the proposed reporting guidelines.
Fourteen commenters opposed having to record mental illness cases
of any kind (Exs. 15: 78, 133, 184, 248, 249, 250, 304, 348, 378, 395,
406, 409, 412, 424). Their primary arguments were:
The diagnosis of mental illnesses is subjective and
unreliable;
It is often impossible, even for a health care
professional, to determine objectively which mental disorders are work-
related and which are not;
Workers have a right to privacy about mental conditions
that should not be violated; employers fear the risk of invasion of
privacy lawsuits if they record these cases on ``public records'';
because of confidentiality concerns, workers are unlikely to disclose
mental illnesses, and employers will therefore be unable to obtain
sufficient information to make recordability determinations;
Mental illnesses are beyond the scope of the OSHA Act;
Congress intended to include only ``recognized injuries or illnesses'';
Recording mental disorders opens the door to abuse;
workers may ``fake'' mental illnesses, and unions may encourage workers
to report mental problems as a harassment tactic; and
No useful statistics will be generated by such recording.
The American Iron and Steel Institute (AISI) (Ex.15: 395) expressed
the concerns of the group of employers opposed to any recording of
mental conditions:
OSHA should eliminate its proposed recording requirements for
mental illness. OSHA's proposed rule includes changes in an
employee's psychological condition as an ``injury or illness,'' and
[proposed] Appendix A presumes that mental illness ``associated with
post-traumatic stress'' is work related. Employers, employees, and
OSHA have been wrestling for 25 years with the proper recording of
fairly simple injuries like back
[[Page 5953]]
injuries, sprains, and illnesses caused by chemical exposures.
Requiring employers to record something as vague as psychological
conditions will impose impossible burdens on employers (and
compliance officers) and thus will create an unworkable
recordkeeping scheme.
Moreover, too little is known about the etiology of most mental
conditions to justify any presumption or conclusion that a condition
that surfaces at work was ``caused'' by something in the work
environment. It is hard to imagine a mental illness appearing at
work that is not a manifestation of a preexisting condition or
predisposition. Thus, the only sensible approach is to exclude all
mental illnesses from recording requirements.
Many commenters from business and trade associations either agreed
with OSHA's proposal or recommended an even stricter limitation on
recordable mental disorders (see, e.g., Exs. 33, 15: 27, 31, 38, 46,
79, 122, 127, 132, 153, 170, 176, 181, 199, 203, 226, 230, 231, 273,
277, 289, 301, 305, 307, 308, 313, 325, 332, 352, 353, 368, 384, 387,
389, 392, 410, 427, 430, 434). Points raised by these commenters
included recommendations that OSHA should require:
Recording only of those mental illnesses that arise from a
single, work-related traumatic or catastrophic event, such as a
workplace explosion or an armed robbery;
Recording only of those mental illnesses that are directly
and substantially caused by a workplace incident;
Recording only of diagnosed mental illnesses resulting
from a single workplace event that is recognized as having the
potential to cause a significant and severe emotional response;
Recognition only of post-traumatic stress cases or related
disorders that include physical manifestations of illness and that are
directly related to specific, objectively documented, catastrophic
work-related events; and
Recording only of diagnosed conditions directly
attributable to a traumatic event in the workplace, involving either
death or severe physical injury to the individual or a co-worker.
Several commenters suggested the use of a medical evaluation to
determine diagnosis and/or work-relationship in cases of mental illness
(see, e.g., Exs. 15: 65, 78, 105, 127, 170, 181, 184, 226, 230). For
example, the Aluminum Company of America (Ex. 15: 65) stated that:
OSHA should define mental health conditions for recordkeeping
purposes as conditions diagnosed by a licensed physician or advanced
health care practitioner with specialized psychiatric training
(i.e., psychiatric nurse practitioner). Work-relatedness of the
mental health condition should be determined by a psychiatric
independent medical evaluation.
A comment from the Department of Energy (Ex. 15: 163) stated that
any diagnosis of mental illness should be made by at least two
qualified physicians, and CONSOL Inc. (Ex. 15: 332) and Akzo Nobel (Ex.
15: 387) wanted the rule to require that any such diagnosis meet the
criteria of the Diagnostic and Statistical Manual, Version IV (DSM-IV).
Commenters had different opinions about the minimum qualifications
necessary for a health care professional to make decisions about mental
health conditions; specifically, some commenters urged OSHA to exclude
``counselors'' (Ex. 15: 226) or to include ``only psychiatrists and
Ph.D. psychologists'' (Ex. 15: 184).
A number of commenters suggested excluding from the requirement to
record any mental illness related to personnel actions such as
termination, job transfer, demotions, or disciplinary actions (see,
e.g., Exs. 15: 68, 127, 136, 137, 141, 176, 184, 224, 231, 266, 273,
278, 301, 395, 424). The New York Compensation Board (Ex. 15: 68) noted
that New York's workers' compensation law excludes such cases by
specifying that mental injuries are compensable with the exception of
injuries that are the ``direct consequence of a lawful personnel
decision involving a disciplinary action, work evaluation, job
transfer, demotion, or termination taken in good faith by the
employer.''
Finally, several employers raised the issues of the privacy of an
employee with a mental disorder, the need to protect doctor-patient
confidentiality, and the potential legal repercussions of employers
breaching confidentiality in an effort to obtain injury and illness
information and in recording that information (see, e.g., Exs. 15: 78,
153, 170, 195, 260, 262, 265, 277, 348, 392, 401, 406, 409). Some of
these commenters suggested that an employer should only have the
obligation to record after the employee has brought the condition to
the attention of the employer, either directly or through medical or
workers' compensation claims, and in no case should doctor-patient
confidentiality be breached. (Issues related to confidentiality of the
Log are discussed in detail in the summary and explanation of
Sec. 1904.35, Employee Involvement.)
After a review of the comments and the record on this issue, OSHA
has decided that the proposed exception, which would have limited the
work-relatedness (and thus recordability) of mental illness cases to
those involving post-traumatic stress, is not consistent with the
statute or the objectives of the recordkeeping system, and is not in
the best interest of employee health. The OSH Act is concerned with
both physical and mental injuries and illnesses, and in fact refers to
``psychological factors'' in the statement of Congressional purpose in
section 2 of the Act (29 U.S.C. 651(b)(5)).
In addition, discontinuing the recording of mental illnesses would
deprive OSHA, employers and employees, and safety and health
professionals of valuable information with which to assess occupational
hazards and would additionally skew the statistics that have been kept
for many years. Therefore, the final rule does not limit recordable
mental disorders to post traumatic stress syndrome or any other
specific list of mental disorders. OSHA also does not agree that
recording mental illnesses will lead to abuse by employees or others.
OSHA has required the recording of these illnesses since the inception
of the OSH Act, and there is no evidence that such abuse has occurred.
However, OSHA agrees that recording work-related mental illnesses
involves several unique issues, including the difficulty of detecting,
diagnosing and verifying mental illnesses; and the sensitivity and
privacy concerns raised by mental illnesses. Therefore, the final rule
requires employers to record only those mental illnesses verified by a
health care professional with appropriate training and experience in
the treatment of mental illness, such as a psychiatrist, psychologist,
or psychiatric nurse practitioner. The employer is under no obligation
to seek out information on mental illnesses from its employees, and
employers are required to consider mental illness cases only when an
employee voluntarily presents the employer with an opinion from the
health care professional that the employee has a mental illness and
that it is work related. In the event that the employer does not
believe the reported mental illness is work-related, the employer may
refer the case to a physician or other licensed health care
professional for a second opinion.
OSHA also emphasizes that work-related mental illnesses, like other
illnesses, must be recorded only when they meet the severity criteria
outlined in Sec. 1904.7. In addition, for mental illnesses, the
employee's identity must be protected by omitting the employee's name
from the OSHA 300 Log and instead entering ``privacy concern case'' as
required by Sec. 1904.29.
[[Page 5954]]
Exceptions Proposed but Not Adopted
The proposed rule contained eleven exceptions to the geographic
presumption. Some of these exceptions are included in the final rule,
and therefore are discussed above, while others were rejected for
various reasons. The following discussion addresses those proposed
exemptions not adopted in the final rule, or not adopted in their
entirety.
Proposed Exception B-5. Personal Tasks Unrelated To Employment
Outside of Normal Working Hours. The proposed rule included an
exception for injuries and illnesses caused solely by employees
performing personal tasks at the establishment outside of their normal
working hours. Some aspects of this proposed exception have been
adopted in the final, but others have not. Almost all the comments on
this proposed exception supported it (see, e.g., Exs. 15: 31, 78, 105,
121, 159, 281, 297, 336, 341, 350), and many suggested that the
exception be expanded to include personal tasks conducted during work
hours (see, e.g., Exs. 15: 176, 184, 201, 231, 248, 249, 250, 273, 301,
335, 348, 374). Caterpillar, Inc. (Ex. 15: 201) offered an opinion
representative of the views of these commenters: ``We agree with this
exception but it should be expanded to include any personal tasks
performed during work hours if the work environment did not cause the
injury or illness. Expanding this exemption will be consistent with the
exemptions for voluntary wellness program participation and eating,
drinking, and preparing one's own food.''
One commenter disagreed with the proposed exception (the Laborers
Safety and Health Fund of North America (Ex. 15: 310)) and cited as a
reason the difficulty of determining the extent to which, for example,
a case involving an employee misusing a hazardous chemical after hours
because he or she did not receive the necessary Right-to-Know training
from the employer would qualify for this exception.
Several commenters suggested that OSHA clarify what it meant by the
terms ``personal tasks'' and ``normal working hours'' (see, e.g., Exs.
15: 102, 304, 345). For example, a representative of Constangy, Brooks
& Smith recommended that:
More explanation be provided regarding the further limitation on
this exclusion. For example, does this section of the proposal
envision the exclusion of injuries and illnesses resulting from
personal tasks performed during overtime (i.e., outside of normal
working hours)? If I am injured while talking to my spouse on the
phone during regular business hours, must the case be recorded,
while if the same injury occurs during overtime, the case is non-
recordable? Also, how are injuries to salaried employees (who are
exempt from overtime) treated under this aspect of the proposal? I
submit that if these issues are not fully ``fleshed out'' in the
proposal or its preamble, this subparagraph will result in the
creation of more questions than it resolves.
The National Federation of Independent Business (NFIB) (Ex. 15:
304) asked OSHA ``to specify that the `normal working hours' refers to
the work schedule of the employee not the employer. If this distinction
is not made clear, this proposal arguably could deny this exemption to
establishments which operate during non-standard operating hours (e.g.,
24 hours a day, weekends, after 5 PM, etc.)--and we assume this is not
OSHA's intent.''
OSHA believes that injuries and illnesses sustained by employees
engaged in purely personal tasks at the workplace, outside of their
assigned working hours, are not relevant for statistical purposes and
that information about such injuries and illnesses would not be useful
for research or other purposes underlying the recordkeeping
requirements. OSHA has therefore decided to include some parts of the
proposed exception in the final rule. Additional language has been
added to the exception since the proposal to clarify that the exception
also applies when the employee is on the premises outside of his or her
assigned working hours, as the NFIB pointed out.
OSHA does not agree, however, with those commenters who suggested
that the exception be expanded to include personal tasks performed by
employees during work hours. As discussed in preceding sections of this
summary and explanation and in the Legal Authority discussion, there
are strong legal and policy reasons for treating an injury or illness
as work-related if an event or exposure in the work environment caused
or contributed to the condition or significantly aggravated a pre-
existing condition. Under this ``but-for'' approach, the nature of the
activity the employee was engaged in at the time of the incident is not
relevant, except in certain limited circumstances. Moreover, OSHA
believes that it would be difficult in many cases for employers to
distinguish between work activities and personal activities that occur
while the employee is on-shift. Accordingly, the final rule codifies
parts of this proposed exception in paragraph 1904.5(b)(v) in the
following form: ``The injury or illness is solely the result of an
employee doing personal tasks (unrelated to their employment) at the
establishment outside of the employee's assigned working hours.''
Proposed Exception B-6. Cases Resulting From Acts of Violence by
Family Members or Ex-spouses When Unrelated to Employment, Including
Self-inflicted Injuries. The final rule does not exempt workplace
violence cases from the Log, although it does allow employers to
exclude cases that involve intentionally self-inflicted injuries. The
final rule thus departs substantially from the proposal in this
respect. The proposed exception, which would have exempted domestic
violence and self-inflicted cases from the Log, drew many comments. The
comments generally fell into four categories: (1) those urging OSHA to
require the recording of all cases of violence occurring at the
establishment; (2) those recommending that no violence cases at the
establishment be recorded; (3) those recommending recordation only of
violence cases perpetrated by certain classes of individuals; and (4)
those urging OSHA to require the recording of cases involving violence
related to employment without regard to the perpetrator. The comments
on the proposed exception are discussed below.
No exemption/record all injuries and illnesses arising from violent
acts. A number of commenters objected to OSHA's proposed exemption of
domestic violence cases from the list of recordable injuries, arguing
that all acts of violence occurring at the workplace should be recorded
(see, e.g., Exs. 15: 31, 54, 56, 88, 90, 91, 93, 94, 99, 101, 103, 104,
106, 111, 114, 115, 144, 186, 187, 238, 345, 362, 407, 418, 439). For
example, the North Carolina Department of Labor stated that ``if an
employer must log the injuries sustained as a result of workplace
violence then the employer may also institute needed security measures
to protect the employees at the establishment. An employer should be
required to log any `preventable' injury (above first aid) that an
employee sustains at the establishment'' (Ex. 15: 186). The Miller
Brewing Company also supported recording all acts of workplace
violence, based on the following rationale: ``I envision a scenario
involving an angry husband attempting to kill his wife but, because he
is a ``bad shot,'' another employee is killed. Why should killing an
innocent bystander be a reportable event, whereas a fatality involving
a spouse is excluded?'' (Ex. 15: 442).
Exception for all violent acts. There were commenters who thought
injuries and illnesses resulting from violence were outside of OSHA's
purview and
[[Page 5955]]
should not be recorded at all (see, e.g., Exs. 15: 28, 75, 96, 107,
203, 254, 289). For example, the Quaker Oats Company (Ex. 15: 289)
stated that ``[w]orkplace violence in any form is a personal criminal
act, and in no way, shape or form should violence be labeled under
hazards in the workplace or even [be] monitored by OSHA. A person who
may turn to violent behavior from family, personal, or job dispute is a
matter of NLRB [National Labor Relations Board], law enforcement or
state employment statutes, not industrial safety.'' The National
Restaurant Association (Ex. 15: 96) agreed:
Congress passed the Occupational Safety and Health Act to
regulate workplace hazards dealing with the workplace environment or
processes that employers could identify and possibly protect. The
Congress did not contemplate that this statute would be used to
redress incidents over which the employer has no ability to control,
such as the unpredictability of workers or nonworkers committing
violent, tortuous acts towards others. This issue was litigated
unsuccessfully by OSHA in Secretary of Labor v. Megawest Financial,
Inc., OSHRC Doc. No. 93-2879 (June 19, 1995). OSHA apparently is
attempting in this NPR to obtain by regulatory fiat what was
rejected by case law and to displace state tort law actions by using
the OSH Act to police social behavior.
Recording work-related violence except acts of certain classes of
individuals. There were many commenters who supported the proposed
exception, which would only have excluded acts of violence on employees
committed by family members and ex-spouses and self-inflicted injuries
and illnesses. The proposed exception as drafted was supported by some
commenters (see, e.g., Exs. 15: 78, 198, 350, 359). Others thought the
exception should be expanded to include not only family members and ex-
spouses, but also live-in partners, friends, and other intimates (see,
e.g., Exs. 15: 80, 122, 153, 181, 213, 325, 363, 401), while others
argued that the exemption should apply to the general public, i.e., to
all people (see, e.g., Exs. 15: 9, 111, 119, 151, 152, 179, 180, 239,
260, 262, 265, 272, 303, 304, 341, 356, 375, 401, 430).
Typical of comments in support of a broader exception were the
remarks of the National Oilseed Processors Association (Ex. 15: 119):
The only time violence in the work place should be considered
work-related is when it is associated with a work issue and
committed by an employee or other person linked to the business,
e.g., a customer. Any other act of violence is not under the control
of the employer and should not be considered work-related.
Alabama Shipyard Inc. (Ex. 15: 152) added:
Exempting acts of violence based strictly on acts committed by
family members, a spouse, or when self-inflicted is too limited.
Instead, the exemption should be based on the relationship of the
perpetrator to the employer. The employer should be no more
responsible for some random act of violence by a crazy individual
walking in off the street who is in no way associated with the
employer than it should be for an act of violence by a family
member.
Southern California Edison (Ex. 15: 111) stated that ``violence is
another example that should be excluded from being work-related if the
employee personally knows the attacker. This would include family
members or coworkers. Only those acts of violence that result from
random criminal activity should be included (i.e., robbery, murder,
etc.).'' TU Services (Ex. 15: 262) recommended ``that only cases that
involve acts of violence that are the result of random criminal
activity should be recorded. Cases that involve anyone with a personal
relationship with the employee should be excluded.'' The American Feed
Industry Association (Ex. 15: 204) and United Parcel Service (Ex. 15:
424), on the other hand, argued that cases involving workplace violence
should only be recorded if the perpetrator was a fellow employee.
Record all violent acts directly related to employment regardless
of who commits the act. Commenters favoring this approach suggested
that violence by family members or others should be recorded if linked
to work, but that all personal disputes should be exempt (see, e.g.,
Exs. 15: 105, 146, 176, 184, 231, 273, 297, 301, 313, 336, 348, 352,
353, 374, 389, 392). The Workplace Health and Safety Council (Ex. 15:
313) proposed the following exception:
Cases will not be considered work-related if they result solely
from acts of violence committed by one's family, or ex-spouse, or
other persons when unrelated to the worker's employment, including
intentionally self-inflicted injuries. Violence by persons on the
premises in connection with the employer's business (including
thieves and former employees) is considered work related even if
committed by one's family or ex-spouse.
The American Ambulance Association (Ex. 15: 226) stated simply:
``AAA believes that OSHA should define what is work-related violence
and assume that all other acts are not work-related, and eliminate the
family and non-family distinction.'' The United Auto Workers (Ex. 15:
438) agreed:
Incidents of intentional violence should be recorded only if
they arise from employment activities. Incidents between employees,
or between employees and non-employees which rise from personal
disputes should not be recorded. Existing data show that the number
of incidents of interpersonal violence between coworkers or workers
and intimates is small, although these incidents do get high
visibility. Therefore, exclusion of these small number of cases will
have little effect on statistical measures.
Some commenters urged OSHA to place some restrictions on the
proposed exception. For example, two commenters argued that cases
involving violence should only be recorded for occupations where there
is a reasonable potential of encountering violence (Exs. 15: 335, 409).
The American Automobile Manufacturers Association (AAMA) stated that:
Workplace violence as a reasonable function of an employee's
employment should be recorded, for example: a cashier injured in a
robbery attempt at a 24-hour retail establishment. An example of
``unreasonable'' recordable workplace violence that should not be
recordable (i.e., where an employee was simply ``in the wrong place
at the wrong time'') would be a flight crew that perishes mid-flight
from a terrorist's bomb. These cases have nothing to do with the
individual's employer, only that they happened to be victims at the
employer's place of employment. It is AAMA's understanding that the
purpose of the subject standard is to collect information pertaining
to injuries and illnesses that arise out of conditions in the
workplace, with the end objective being to use that information to
correct or mitigate these conditions so as to prevent additional
injuries or illnesses.
Caterpillar Inc. (Ex. 15: 201) suggested that ``a predominant
contributor concept, similar to that being proposed to help establish
work-relatedness, could be utilized in cases where the clear cause of
violence is not readily apparent.''
In the final rule, OSHA has decided not to exclude from recording
those injury and illness cases involving acts of violence against
employees by family members or ex-spouses that occur in the work
environment or cases involving other types of violence-related injuries
and illnesses. The final rule does exempt from recording those cases
resulting from intentionally self-inflicted injuries and illnesses;
these cases represent only a small fraction of the total number of
workplace fatalities (three percent of all 1997 workplace violence
fatalities) (BLS press release USDL 98-336, August 12, 1998). OSHA
believes that injuries and illnesses resulting from acts of violence
against employees at work are work-related under the positional theory
of causation. The causal connection is usually established by the fact
that the assault or other harmful event would not have
[[Page 5956]]
occurred had the employee not, as a condition of his or her employment,
been in the position where he or she was victimized. Moreover,
occupational factors are directly involved in many types of workplace
violence, such as assaults engendered by disputes about working
conditions or practices, or assaults on security guards or cashiers and
other employees, who face a heightened risk of violence at work.
Accordingly, OSHA does not accept the premise, advanced by some
commenters, that workplace violence is outside the purview of the
statute.
In some cases, acts of violence committed by a family member or ex-
spouse at the workplace may be prevented by appropriate security
measures enforced by employers. Moreover, information about workplace
injuries due to assaults by family members or ex-spouses is relevant
and should be included in the overall injury and illness data for
statistical and research purposes. Omitting the proposed exception also
obviates the need for employers to make distinctions among various
degrees of personal relationships. Accordingly, the final rule does not
allow employers to exclude injuries and illnesses resulting from
violence occurring in the workplace from their Logs. However, some
cases of violence will be excluded under Sec. 1904.5(b)(2)(v), which
exempts an injury or ilness that is solely the result of an employee
doing personal tasks (unrelated to their employment) at the
establishment outside of the employee's assigned working hours. For
example, if an employee arrives at work early to use a company
conference room for a civic club meeting, and is injured by some
violent act, the case would not be considered work related.
OSHA has decided to maintain the exclusion for intentionally self-
inflicted injuries that occur in the work environment in the final
rule. The Agency believes that when a self-inflicted injury occurs in
the work environment, the case is analogous to one in which the signs
or symptoms of a pre-existing, non-occupational injury or illness
happen to arise at work, and that such cases should be excluded for the
same reasons. (see paragraph 1904.5(b)(2)(ii)). The final rule at
paragraph 1904.5(b)(2)(vi) therefore includes that the part of
exception proposed that applied to injuries and illnesses that are
intentionally self-inflicted.
Proposed Exception B-7. Parking Lots and Access Roads. This
proposed exception, which in effect would have narrowed the definition
of ``establishment'' to exclude company parking lots, had approximately
equal numbers of commenters in favor and opposed. The final rule
includes some aspects of the proposed exemption. In favor of recording
injuries in parking lots and on access roads were the commenters
represented by Exs. 24, 15: 41, 72, 310, 362. Typical of the views of
this group was that of the Association of Operating Room Nurses (AORN)
(Ex. 15: 72), which noted that:
[e]mployee parking lots should be included in defining ``work-
related.'' Perioperative nurses and other surgical service providers
may be required on a ``call'' basis during the night hours.
Consequently they enter and leave parking lots at unusual times when
traffic in the lots is minimal. These providers may be at increased
risk for random violence. Absent the ``call'' requirement, the
employee would not be in the parking lot at the time of the injury.
Further, if the employee is paid for travel time to and/or from the
facility, injuries occurring during that period should be considered
``work-related.''
The AFL-CIO (Ex. 15: 362) added that employers may be less likely
to provide lighting, security and other controls that could prevent
violent assaults in parking lots and access roads if injuries occurring
there are not recordable.
The opposite view, in support of the proposed exception for parking
lots, was expressed by several employers (see, e.g., Exs. 15: 27, 45,
176, 185, 195, 231, 248, 249, 250, 273, 289, 301, 304, 341, 363). The
National Wholesale Druggists Association (NWDA) (Ex. 15: 185) supported
the proposed exclusion:
[i]nevitably, activities that take place in the company parking
lot or on the company access road are not only outside of the
employer's dominion and control but also are most often not related
in any way to the employee's work. Including injuries that occur in
these locations as part of the OSHA log would lead to an inaccurate
reflection of injury data as a whole. OSHA should retain this
exemption. An employer has no control over an employee's commute to
and from the workplace, with the exception of arrival and departure
times for the work day. If OSHA requires the reporting of injuries
that occur during the employee's commute, the number of injuries
reported would increase dramatically.
The National Federation of Independent Business (Ex. 15: 304)
stated that the proposed exception would be consistent with workers'
compensation rules.
OSHA has concluded that a limited exception for cases occurring on
parking lots is appropriate but that the broader exception proposed is
not. The final rule thus provides an exception for motor vehicle injury
cases occurring when employees are commuting to and from work. As
discussed in the preamble that accompanies the definition of
``establishment'' (see Subpart G of the final rule), OSHA has decided
to rely on activity-based rather than location-based exemptions in the
final rule. The parking lot exception in the final rule applies to
cases in which employees are injured in motor vehicle accidents
commuting to and from work and running personal errands (and thus such
cases are not recordable), but does not apply to cases in which an
employee slips in the parking lot or is injured in a motor vehicle
accident while conducting company business (and thus such cases are
recordable). This exception is codified at paragraph 1904.5(b)(2)(vii)
of the final rule.
Proposed Exception B-8. Never Engaged in an Activity That Could
Have Placed Stress On the Affected Body Part. This proposed exception
would have allowed employers not to record cases if no aspect of the
worker's job placed stress on the affected body part or exposed the
worker to any chemical or physical agent at work that could be
associated with the observed injury or illness. This proposed exception
received support from a number of employers (see, e.g., Exs. 15: 176,
185, 231, 273, 301, 341, 359, 406). For example, the National Wholesale
Druggists' Association stated that ``Such injuries or illnesses are
obviously not caused by any work-related activities and should
therefore be excluded from any reporting and recording requirements'
(Ex. 15: 185).
Deleting the word ``never'' from the proposed exception was also
supported by many respondents (see, e.g., Exs. 15: 146, 279, 304, 335,
374, 392, 395, 430, 431, 442). Representative of the latter group is
the following comment by the BF Goodrich Company (Ex. 15: 146):
The use of the term ``never'' in this exemption requires too
harsh a test for case evaluation. A back injury should not be
recordable because the employee lifted a box 10 years previous to
the injury. A more reasonable evaluation criteria meeting the same
intent could be stated as below: The injury or illness is not work-
related if it cannot be associated with the employee's duties or
exposures at work.
Taking an opposing view to the proposed exception were the AFL-CIO
(Ex. 15: 418), the United Steelworkers of America (Ex. 15: 429), and
the United Brotherhood of Carpenters Health and Safety Fund of North
America (Ex. 15: 350). The AFL-CIO stated that:
We believe when evaluating injuries this approach could
logically work in most cases, but in cases of chemical exposures and
musculoskeletal disorders this logic does not hold merit. If the
Agency attempts to apply this approach to the aforementioned types
of cases, the employer will have to become an
[[Page 5957]]
epidemiologist, ergonomist or toxicologist to determine if these
cases meet the recordability criteria set forth in this proposal . .
. . We encourage the Agency to omit this provision from the final
standard. Because of the increasing numbers of workers being
medically diagnosed for multiple chemical sensitivity and the
exposures some workers receive without any knowledge until years
after the incident, the Agency must carefully think about the
inclusion of this provision to the final standard.
Similarly, the Carpenters Fund (UBC H&SF) argued that:
[T]his [exception] would exclude those cases where symptoms
arise at work, but are caused by accidents or exposures away from
work. The UBC H&SF agrees with the theory of this provision, but
emphasizes that the task placed on employers to determine causation
by exposures away from work would in many cases be impossible. Also
the apportionment of causation is not discussed in this analysis and
would allow some to record cases .01 percent caused by work and
others to not record cases 99 percent caused by work. For the
foregoing reasons, that this requirement is unworkable, we urge it
be dropped from the final rule.
Based on a review of the record on this issue, OSHA has decided not
to include this proposed exception in the final rule. On reflection,
the proposed language is confusing and would be difficult to apply. The
underlying concept, to the extent it has merit, is better covered in
the exemption paragraph 1904.5(b)(2)(ii). As discussed in preceding
sections of this summary and explanation for section 1904.5, there are
sound legal and policy justifications for defining work-relationship
broadly to include injuries and illnesses that result from events or
exposures in the work environment. The proposed exception would
effectively ``swallow'' the geographic presumption theory of causation
underpinning the rule by shifting the focus of enquiry in every case to
the employee's specific job duties. As OSHA has noted, the geographic
presumption includes some cases in which the illness or injury cannot
be directly linked to the stresses imposed by job duties. For example,
if an employee trips while walking on a level factory floor and breaks
his arm, the injury should be recordable. The comments supporting the
proposed exemption do not, in OSHA's view, provide a basis for
excluding these types of cases from recording on the Log.
Proposed Exception B-9. Voluntary Community Activities Away From
The Employer's Establishment. This proposed exemption drew two comments
supporting it as written (Exs. 15: 78, 304), and several other
participants recommended that it be expanded to exclude injuries and
illnesses that arise from voluntary community activities wherever they
occur (see, e.g., Exs. 15: 146, 184, 272, 303, 359). Typical of these
comments is one from U.S. West (Ex. 15: 184), which stated that
``[e]mphasis should be on the activity that occurred, not the location
of the activity.''
The United Brotherhood of Carpenters, Health & Safety Fund of North
America (Ex. 15: 350) agreed with the proposed exception, except for
cases where the employee is present as a condition of employment or in
the employer's interest. It commented:
[A]t the surface this exception seems to make perfect sense.
However, real employment relationships and real employer-community
relationships do not fit such clean characterizations. Many times
employees are forced to become ``team players'' and volunteer for
unpaid off-establishment activities. Many employers engage in
community ``good will'' generating activities by having their
employees volunteer. For the above reasons we urge that cases
occurring away from the employer's establishment be considered work-
related if the employee is engaged in any activity in the interest
of the employer or is there as a condition of employment.
OSHA has decided not to include this proposed exception in the
final rule because the final rule's overall definition of work-
environment addresses this situation in a simple and straightforward
way. If the employee is taking part in the activity and is either
working or present as a condition of employment, he or she is in the
work environment and any injury or illness that arises is presumed to
be work-related and must then be evaluated for its recordability under
the general recording criteria. Thus, if the employee is engaged in an
activity at a location away from the establishment, any injury or
illness occurring during that activity is considered work-related if
the worker is present as a condition of employment (for example, the
worker is assigned to represent the company at a local charity event).
For those situations where the employee is engaged in volunteer work
away from the establishment and is not working or present as a
condition of employment, the case is not considered work-related under
the general definition of work-relationship. There is thus no need for
a special exception.
Proposed Exception B-10. The Case Results Solely From Normal Body
Movements, not Job-Related Motions or Contribution from the Work
Environment. This proposed exception generated some support (see, e.g.,
Exs. 15: 107, 147, 173, 185, 341, 348, 373, 392) but also caused much
confusion about the meaning of the phrases ``normal body movement'' and
``job-related'' (see, e.g., Exs. 15: 80, 83, 89, 98, 146, 176, 225,
226, 231, 239, 273, 301, 304, 313, 352, 353, 355, 359, 406, 424). The
following comment by the American Gas Association (Ex. 15: 225) is
representative of those in this group:
`[N]ormal body movements' needs clarification since OSHA has not
set forth any reasons for excluding it. OSHA's language states that
there is an exclusion ``* * * provided that activity does not
involve a job related motion and the work environment does not
contribute to the injury or illness''. OSHA goes on to elaborate
that illnesses or injuries should not be recorded if they are not
related to an identifiable work activity. However, OSHA also states
the exclusion would not apply if it involved repetitive motion or if
the work environment either caused or contributed to the injury or
illness. This language is ambiguous and redundant. Repetitive motion
injury/illness conditions should be treated in the same way as any
other condition. There should be a work-related exclusion if the
work environment did not cause or contribute to the injury/illness.
LeRoy E. Euvard, Jr., Safety and Environmental Staff (Ex. 15: 80)
added:
[T]he definition of work-related resulting from normal body
movements is too broad. The definition excludes walking, talking,
etc. `provided the activity does not involve a job-related motion.'
Does that mean that if an employee is walking to the rest room and
becomes ill, the illness is not work-related, but, if he/she is
walking from the rest room back to his/her work station, it is work-
related? If the employee is engaged in social talk, the illness is
not work-related, but, if he/she is engaged in a conversation
regarding some aspect of work, the illness is work-related?
Other commenters objected to the concept of excluding cases
resulting from normal body movements from the Log (Ex. 56X, pp. 51, 52;
Ex. 15: 418). Walter Jones of the International Brotherhood of
Teamsters used the following example:
We do take opposition to some of the exceptions. For cases that
result in normal body movement, I'd like to just bring another
example up. We have a member who after spending most of his morning
sorting about 700 different boxes, on break in a normal,
unencumbered motion, dropped his pencil and picked it up, had a back
spasm and his back went out. And I know that according to the way
the standard is written, or the regulation is written, that this can
be attributed to work activity. But the reason we bring it up is we
need to be careful in trying to be that exact because an employer
will take an uninformed employee and may take liberties (Ex. 56X,
pp. 51, 52).
OSHA has decided not to include a recordkeeping exception for
injuries or illnesses associated with normal body movements in the
final rule. The
[[Page 5958]]
proposed provision was intended to exclude the recording of cases that
happened to occur in the work environment without any real work
contribution. However, the comments on this issue have convinced OSHA
that the proposed provision is unnecessary, would be unworkable, and
would result in incomplete and inconsistent data. The case cited by the
Teamsters is but one example of a legitimate work-related injury that
could go unrecorded if OSHA were to adopt this provision in the final
rule. Further, the final rule already makes clear that injuries and
illnesses that result solely from non-work causes are not considered
work-related and therefore are excluded from the Log, and establishes
the requirements employers must follow to determine work-relationship
for an injury or illness when it is unclear whether the precipitating
event occurred in the workplace or elsewhere (see paragraph
1904.5(b)(3)). According to the requirements in that section, the
employer must evaluate the employee's work duties and the work
environment to decide whether it is more likely than not that events or
exposures in the work environment either caused or contributed to the
condition or significantly aggravated a pre-existing condition. If so,
the case is work-related.
Additional Exemptions Suggested by Commenters but Not Adopted
In addition to commenting on the eleven proposed exceptions,
interested parties suggested adding some exceptions to the final rule.
This section contains a discussion of those additional exemptions
suggested by commenters but not adopted in the final rule.
Acts of God: The International Dairy Foods Association (IDFA)
suggested that OSHA exclude any injury or illness that was ``the result
of an ``Act of God,'' such as, but not limited to, an earthquake or a
tornado'' (Ex. 15: 203). OSHA has not adopted such an exception because
doing so would not be in keeping with the geographic presumption
underpinning this final rule, and would exclude cases that are in fact
work-related. For example, if a worker was injured in a flood while at
work, the case would be work-related, even though the flood could be
considered an act of God. Accordingly, if workplace injuries and
illnesses result from these events, they must be entered into the
records (for a more detailed discussion of this point, see the Legal
Authority section, above).
Phobias: The American Crystal Sugar Company (Ex. 15: 363) suggested
that OSHA add an exception from recording for cases involving phobias:
I would also like to suggest exempting an employee's loss of
consciousness based on a fear-based phobia, i.e., fainting at the
sight of blood. Occasionally an OSHA regulation may require blood
tests, such as checking lead levels in blood. There are a few
employees that will lose consciousness at the sight of a needle.
These phobias are not limited to medical procedures, but may include
spiders, snakes, etc. In several of our factories, the occupational
health nurse will administer tetanus boosters as a service to our
employees. Employees that have a phobia about injections can (and
do) lose consciousness, which now makes what was intended as a
service an OSHA recordable accident.
OSHA has not included an exception from recording in the final
recordkeeping regulation for phobias or any other type of mental
illness. The scenario described by the American Crystal Sugar Company,
which involved fainting from fear of an injection offered as a service
to employees, might be considered non-work-related under the exception
codified at paragraph 1904.5(b)(2)(iii), Voluntary participation in a
medical activity. OSHA also believes that it would be unreasonable to
omit a case of loss of consciousness resulting from the administration
of a blood test for lead exposure at work. These tests are necessitated
by the employee's exposure to lead at work and are required by OSHA's
lead standard (29 CFR 1910.1025). The other scenarios presented by
these commenters, involving spiders, snakes, etc., would also be work-
related under the geographic presumption.
Illegal activities and horseplay: Several commenters suggested an
exception for an employee engaging in illegal activities, horseplay, or
failing to follow established work rules or procedures (see, e.g., Exs.
15: 49, 69, 117, 151, 152, 179, 180, 203, 368, 393). The comment of the
American Network of Community Options and Resources (ANCOR) (Ex. 15:
393) is representative of those on this issue:
Employees who fail to follow employer training and best
practices or violate established policy present a threat not only to
other employees and consumers/customers, but also to employers held
responsible for the consequences of their actions. For example,
ANCOR does not believe that employers should have to use these
recording and reporting procedures when illnesses and injuries are a
result of an employee engaged in illegal activities or fails/
violates established procedures.
OSHA has not adopted any of these recommended exceptions in the
final recordkeeping rule because excluding these injuries and illnesses
would be inconsistent with OSHA's longstanding reliance on the
geographic presumption to establish work-relatedness. Furthermore, the
Agency believes that many of the working conditions pointed to in these
comments involve occupational factors, such the effectiveness of
disciplinary policies and supervision. Thus, recording such incidents
may serve to alert both the employer and employees to workplace safety
and health issues.
Non-occupational degenerative conditions: Two commenters also asked
OSHA to include in the final rule a recording exception for non-
occupational degenerative conditions (Exs. 15: 176, 248) such as high
blood pressure, arthritis, coronary artery disease, heart attacks, and
cancer that can develop regardless of workplace exposure. OSHA has not
added such an exception to the rule, but the Agency believes that the
fact that the rule expects employers confronted with such cases to make
a determination about the extent to which, if at all, work contributed
to the observed condition will provide direction about how to determine
the work-relatedness of such cases. For example, if work contributes to
the illness in some way, then it is work-related and must be evaluated
for its recordability. On the other hand, if the case is wholly caused
by non-work factors, then it is not work-related and will not be
recorded in the OSHA records.
Determining Whether the Precipitating Event or Exposure Occurred in the
Work Environment or Elsewhere
Paragraph 1904.5(b)(3) of the final rule provides guidance on
applying the geographic presumption when it is not clear whether the
event or exposure that precipitated the injury or illness occurred in
the work environment or elsewhere. If an employee reports pain and
swelling in a joint but cannot say whether the symptoms first arose
during work or during recreational activities at home, it may be
difficult for the employer to decide whether the case is work-related.
The same problem arises when an employee reports symptoms of a
contagious disease that affects the public at large, such as a
staphylococcus infection (``staph'' infection) or Lyme disease, and the
workplace is only one possible source of the infection. In these
situations, the employer must examine the employee's work duties and
environment to determine whether it is more likely than not that one or
more events or exposures at work caused or contributed to the
condition. If the employer determines that it is unlikely that the
precipitating event or exposure
[[Page 5959]]
occurred in the work environment, the employer would not record the
case. In the staph infection example given above, the employer would
consider the case work-related, for example, if another employee with
whom the newly infected employee had contact at work had been out with
a staph infection. In the Lyme disease example, the employer would
determine the case to be work-related if, for example, the employee was
a groundskeeper with regular exposure to outdoor conditions likely to
result in contact with deer ticks.
In applying paragraph 1904.5(b)(3), the question employers must
answer is whether the precipitating event or exposure occurred in the
work environment. If an event, such as a fall, an awkward motion or
lift, an assault, or an instance of horseplay, occurs at work, the
geographic presumption applies and the case is work-related unless it
otherwise falls within an exception. Thus, if an employee trips while
walking across a level factory floor, the resulting injury is
considered work-related under the geographic presumption because the
precipitating event--the tripping accident--occurred in the workplace.
The case is work-related even if the employer cannot determine why the
employee tripped, or whether any particular workplace hazard caused the
accident to occur. However, if the employee reports an injury at work
but cannot say whether it resulted from an event that occurred at work
or at home, as in the example of the swollen joint, the employer might
determine that the case is not work-related because the employee's work
duties were unlikely to have caused, contributed to, or significantly
aggravated such an injury.
Significant Workplace Aggravation of a Pre-existing Condition
In paragraph 1904.5(b)(4), the final rule makes an important change
to the former rule's position on the extent of the workplace
aggravation of a preexisting injury or illness that must occur before
the case is considered work-related. In the past, any amount of
aggravation of such an injury or illness was considered sufficient for
this purpose. The final rule, however, requires that the amount of
aggravation of the injury or illness that work contributes must be
``significant,'' i.e., non-minor, before work-relatedness is
established. The preexisting injury or illness must be one caused
entirely by non-occupational factors.
A number of commenters on OSHA's proposed rule raised the issue of
recording injuries that were incurred off the job and then were
aggravated on the job (see, e.g., Exs. 15: 60, 80, 95, 107, 176, 201,
204, 213, 281, 308, 313, 338, 368, 375, 395, 396, 406, 424, 427, 428,
441). The National Roofing Contractors Association (NRCA) commented
that ``[t]his definition [includes] aggravating a pre-existing
condition. While NRCA believes that the exemptions provided [in the
proposed rule] are a step in the right direction, this provision could
require that an employer record an injury that originally occurred
outside the employer's workplace. The motion or activity that
aggravated the injury may not represent any substantial hazard, yet
would still be recorded'' (Ex. 15: 441). The United Parcel Service (Ex.
15: 424) objected to the inclusion of the concept of aggravation in the
definition of work-relatedness:
[a]nother flaw in the proposal arises from its proposed
recording requirement in the case of ``aggravation'' of prior
conditions. As drafted, the rule would require reporting as an
occupational injury or illness a musculoskeletal condition arising
away from work which becomes aggravated by performing job duties
(i.e., the job increases discomfort), when accompanied by swelling
or inflammation. Thus, an employee who hurts his wrist playing
tennis on the weekend and who returns to his word processing job
Monday would have a reportable MSD under the rule. With such
criteria for recordation, reported occupational injuries and
illnesses would skyrocket, and yet most often these reports would
reflect conditions arising away from work.
The Food Distributors International (Ex. 15: 368) recommended:
[i]t is very important that injuries that are not truly work-
related not be the subject of mandatory recording. For example, if
an employee were injured off the job and came to work to ``try it
out'' (i.e., to see if he or she was capable of performing the
normal job functions), resulting pain might be seen as
``aggravation'' and become recordable on that basis. The true source
of injury, however, would be outside the workplace, and recording
would produce an artificially inflated rate of injuries and
illnesses, and a profile that was inaccurate.
Several commenters were concerned about the aggravation of
preexisting injuries in the context of recurrences or new cases (see,
e.g., Exs. 15: 210, 204, 338) . For example, Caterpillar Inc. (Ex. 15:
201) stated that:
[b]ack injuries, repetitive motion injuries, and other chronic
conditions which have degenerative or aging causal factors often
recur without a new work accident and further without a new work
accident capable of causing the underlying condition. Even if a new
work accident occurs, the accident should be serious enough to cause
the underlying condition before the new case presumption is
applicable. The effect of this would be to eliminate minor
aggravation of preexisting conditions from consideration as new
injuries.
LeRoy E. Euvard, Jr., of the Safety and Environmental Staff Company
(Ex. 15: 80), suggested that:
[a]ggravation of a pre-existing condition should not be
recordable if normal body movements or events cause the aggravation.
For example, a smoker with asthma or other obstructive airway
disease may experience shortness of breath while climbing a flight
of stairs. A person with degenerative disk disease may experience
pain while lifting a normal bag of groceries. If performing similar
activities at work likewise aggravates the condition, it should not
be recordable.
As discussed above, OSHA agrees that non-work-related injuries and
illnesses should not be recorded on the OSHA Log. To ensure that non-
work-related cases are not entered on the Log, paragraph
1904.5(b)(2)(ii) requires employers to consider as non-work-related any
injury or illness that ``involves signs or symptoms that surface at
work but result solely from a non-work-related event or exposure that
occurs outside the work environment.''
The Agency also believes that preexisting injury or illness cases
that have been aggravated by events or exposures in the work
environment represent cases that should be recorded on the Log, because
work has clearly worsened the injury or illness. OSHA is concerned,
however, that there are some cases where work-related aggravation
affects the preexisting case only in a minor way, i.e., in a way that
does not appreciably worsen the preexisting condition, alter its
nature, change the extent of the medical treatment, trigger lost time,
or require job transfer. Accordingly, the final rule requires that
workplace events or exposures must ``significantly'' aggravate a pre-
existing injury or illness case before the case is presumed to be work-
related. Paragraph 1904.5(a) states that an injury or illness is
considered work-related if ``an event or exposure in the work
environment either caused or contributed to the resulting condition or
significantly aggravated a pre-existing injury or illness.''
Paragraph 1904.5(b)(4) of the final rule defines aggravation as
significant if the contribution of the aggravation at work is such that
it results in tangible consequences that go beyond those that the
worker would have experienced as a result of the preexisting injury or
illness alone, absent the aggravating effects of the workplace. Under
the final rule, a preexisting injury or illness will be considered to
have been significantly aggravated, for the purposes of OSHA injury and
illness recordkeeping, when an event or exposure in the work
[[Page 5960]]
environment results in: (i) Death, providing that the preexisting
injury or illness would likely not have resulted in death but for the
occupational event or exposure; (ii) Loss of consciousness, providing
that the preexisting injury or illness would likely not have resulted
in loss of consciousness but for the occupational event or exposure;
(iii) A day or days away from work or of restricted work, or a job
transfer that otherwise would not have occurred but for the
occupational event or exposure; or (iv) Medical treatment where no
medical treatment was needed for the injury or illness before the
workplace event or exposure, or a change in the course of medical
treatment that was being provided before the workplace event or
exposure. OSHA's decision not to require the recording of cases
involving only minor aggravation of preexisting conditions is
consistent with the Agency's efforts in this rulemaking to require the
recording only of non-minor injuries and illnesses; for example, the
final rule also no longer requires employers to record minor illnesses
on the Log.
Preexisting Conditions
Paragraph 1904.5(b)(5) stipulates that pre-existing conditions, for
recordkeeping purposes, are conditions that resulted solely from a non-
work-related event or exposure that occurs outside the employer's work
environment. Pre-existing conditions also include any injury or illness
that the employee experienced while working for another employer.
Off Premises Determinations
Employees may be injured or become ill as a result of events or
exposures away from the employer's establishment. In these cases, OSHA
proposed to consider the case work-related only if the employee was
engaged in a work activity or was present as a condition of employment
(61 FR 4063). In the final rule, (paragraph 1904.5(b)(1)) the same
concept is carried forward in the definition of the work environment,
which defines the environment as including the establishment and any
other location where one or more employees are working or are present
as a condition of their employment.
Thus, when employees are working or conducting other tasks in the
interest of their employer but at a location away from the employer's
establishment, the work-relatedness of an injury or illness that arises
is subject to the same decision making process that would occur if the
case had occurred at the establishment itself. The case is work-related
if one or more events or exposures in the work environment either
caused or contributed to the resulting condition or significantly
aggravated a pre-existing condition, as stated in paragraph 1904.5(a).
In addition, the exceptions for determining work relationship at
paragraph 1904.5(b)(2) and the requirements at paragraph 1904.5(b)(3)
apply equally to cases that occur at or away from the establishment.
As an example, the work-environment presumption clearly applies to
the case of a delivery driver who experiences an injury to his or her
back while loading boxes and transporting them into a building. The
worker is engaged in a work activity and the injury resulted from an
event--loading/unloading--occurring in the work environment. Similarly,
if an employee is injured in an automobile accident while running
errands for the company or traveling to make a speech on behalf of the
company, the employee is present at the scene as a condition of
employment, and any resulting injury would be work-related.
Employees on Travel Status
The final rule continues (at Sec. 1904.5(b)(6)) OSHA's longstanding
practice of treating injuries and illnesses that occur to an employee
on travel status as work-related if, at the time of the injury or
illness, the employee was engaged in work activities ``in the interest
of the employer.'' Examples of such activities include travel to and
from customer contacts, conducting job tasks, and entertaining or being
entertained if the activity is conducted at the direction of the
employer.
The final rule contains three exceptions for travel-status
situations. The rule describes situations in which injuries or
illnesses sustained by traveling employees are not considered work-
related for OSHA recordkeeping purposes and therefore do not have to be
recorded on the OSHA 300 Log. First, when a traveling employee checks
into a hotel, motel, or other temporary residence, he or she is
considered to have established a ``home away from home.'' At this time,
the status of the employee is the same as that of an employee working
at an establishment who leaves work and is essentially ``at home''.
Injuries and illnesses that occur at home are generally not considered
work related. However, just as an employer may sometimes be required to
record an injury or illness occurring to an employee working in his or
her home, the employer is required to record an injury or illness
occurring to an employee who is working in his or her hotel room (see
the discussion of working at home, below).
Second, if an employee has established a ``home away from home''
and is reporting to a fixed worksite each day, the employer does not
consider injuries or illnesses work-related if they occur while the
employee is commuting between the temporary residence and the job
location. These cases are parallel to those involving employees
commuting to and from work when they are at their home location, and do
not have to be recorded, just as injuries and illnesses that occur
during normal commuting are not required to be recorded.
Third, the employer is not required to consider an injury or
illness to be work-related if it occurs while the employee is on a
personal detour from the route of business travel. This exception
allows the employer to exclude injuries and illnesses that occur when
the worker has taken a side trip for personal reasons while on a
business trip, such as a vacation or sight-seeing excursion, to visit
relatives, or for some other personal purpose.
The final rule's travel-related provisions (at paragraph
1904.5(b)(6)) are essentially identical to those proposed (63 FR 4063),
with only minor editorial changes, and are also parallel to those for
determining the work-relationship of traveling employees under the
former recordkeeping system (Ex. 2, pp. 36, 37). OSHA received various
comments and suggestions about how best to determine work relationship
for traveling employees. A few commenters endorsed OSHA's proposed
approach (see, e.g., Exs. 15: 199, 396, 406). Other commenters believe,
however, that employer control of, or the authority to control, the
work environment should be determinative because activities outside the
employer's control fall outside the scope of the employer's safety and
health program (see, e.g., Exs. 15: 335, 396, 409, 424). The comments
of the Dow Chemical Company (Ex. 15: 335) are typical of these views:
[t]ravel on public carriers such as commercial airlines, trains,
and taxi services or pre-existing conditions that are aggravated
during normal unencumbered body motions, or injuries that occur off-
the-job but do not impair someone until they arrive at work are all
beyond the control of the employer and the scope of any safety and
health program. The commercial plane that crashes while the employee
was flying on company business or the taxi accident while the
employee was trying to get to the airport to fly on company business
are events which, while tragic, are beyond the scope of an
employer's control and beyond the reasonable reach of that
employer's safety and health program.
[[Page 5961]]
However, as discussed in the Legal Authority section and the
introduction to the work-relationship section of the preamble, OSHA has
decided not to limit the recording of occupational injuries and
illnesses to those cases that are preventable, fall within the
employer's control, or are covered by the employer's safety and health
program. The issue is not whether the conditions could have, or should
have, been prevented or whether they were controllable, but simply
whether they are occupational, i.e., are related to work. This is true
regardless of whether the employee is injured while on travel or while
present at the employer's workplace. An employee who is injured in an
automobile accident or killed in an airline crash while traveling for
the company has clearly experienced a work-related injury that is
rightfully included in the OSHA injury and illness records and the
Nation's occupational injury and illness statistics. As the American
Industrial Hygiene Association (Ex. 15: 153) remarked:
The workforce is increasingly made up of service sector jobs.
Computers, materials movement, travel, violence are all emerging and
increasing sources of occupational injury and illness. Many of these
newer trends in cases may not involve lost workdays, but are
recordable and significant to the workforce none the less. Many of
the clean, non-manufacturing employers who were traditionally exempt
from recordkeeping have risk in these and other emerging areas about
which OSHA should be collecting data.
Two commenters specifically objected to the inclusion of cases
involving client entertainment (Ex. 15: 409, 424). The American
Association of Automobile Manufacturers (AAMA) remarked:
AAMA agrees with OSHA that injuries/illnesses to employees
during travel status are work-related and recordable. However, AAMA
takes strong exception to the inclusion of `entertaining or being
entertained for the purpose of transacting, discussing, or promoting
business.' We find the notion of recording an illness for an
employee, while he/she was engaged in a business related dinner, and
subsequently suffering acute onset of diarrhea leading to
hospitalization for gastroenteritis, to be inappropriate. OSHA needs
to remove this obligation from the final rule. (Ex. 15: 409)
OSHA does not agree with this comment, because the Agency believes
that employees who are engaged in management, sales, customer service
and similar jobs must often entertain clients, and that doing so is a
business activity that requires the employee to work at the direction
of the employer while conducting such tasks. If the employee is injured
or becomes ill while engaged in such work, the injury or illness is
work-related and should be recorded if it meets one or more of the
other criteria (death, medical treatment, etc.). The gastroenteritis
example provided by the AAMA is one type of injury or illness that may
occur in this situation, but employees are also injured in accidents
while transporting clients to business-related events at the direction
of the employer or by other events or exposures arising in the work
environment.
On the other hand, not all injuries and illnesses sustained in the
course of business-related entertainment are reportable. To be
recordable, the entertainment activity must be one that the employee
engages in at the direction of the employer. Business-related
entertainment activities that are undertaken voluntarily by an employee
in the exercise of his or her discretion are not covered by the rule.
For example, if an employee attending a professional conference at the
direction of the employer goes out for an evening of entertainment with
friends, some of whom happen to be clients or customers, any injury or
illness resulting from the entertainment activities would not be
recordable. In this case, the employee was socializing after work, not
entertaining at the direction of the employer. Similarly, the fact that
an employee joins a private club or organization, perhaps to
``network'' or make business contacts, does not make any injury that
occurs there work-related.
Two commenters recommended that OSHA eliminate the exceptions for
determining work-relationship while employees are on travel and simply
require all injuries and illnesses occurring while an employee is on
travel status to be considered work-related (Exs. 15: 350, 418). For
example, the AFL-CIO (Ex. 15: 418) suggested:
We would also strongly encourage the Agency to re-evaluate
[proposed] Appendix A Section C ``Travel Status''. The AFL-CIO
believes that employees in ``travel status'' (e.g., traveling on
company business) should be considered engaged in work-related
activities during ALL of their time spent on the trip. This includes
all travel, job tasks, entertaining and other activities occurring
during ``travel status.''
OSHA believes that expanding the concept of work-related travel to
include all of the time the worker spends on a trip would be
inconsistent with the tests of work-relationship governing the
recording of other injuries and illnesses and would therefore skew the
statistics and confuse employers. As the Dow Chemical Company (Ex. 15:
335) stated:
While the employee is traveling for the benefit of the company,
it cannot be said that 100% of their time is engaged in work-related
activities. Employees engage in personal and social activities while
traveling on company business that is not for the direct benefit of
the company nor a condition of employment and which cannot be
impacted by an employer's safety or health program. Often there is
``free time'' while traveling and employees engage in a myriad of
activities such as shopping, sightseeing, dining out with friends or
family that may be in the area, and the like. These are activities
that do not benefit the company and are outside the company's
control or reasonable reach of its safety and health programs. These
are activities which, if the employee were engaged in them at their
normal work location, would not be recordable; but just by the fact
that they happen to be traveling for business purposes raises these
otherwise non-recordable cases into those subject to the
recordkeeping rule.
OSHA agrees with Dow that there are situations where an injury or
illness case involving an employee who is on travel status should be
excluded from the records. There is no value in recording injuries and
illnesses that would not be recorded under non-travel circumstances.
For example, there is no value to including in the statistics an injury
sustained by an employee who slips and falls in a motel room shower or
who is injured in an automobile accident while on personal business, or
becomes the victim of random street violence while doing personal
shopping on a business trip. OSHA is therefore continuing the Agency's
practice of excluding certain cases while employees are in travel
status and applying the exceptions to the geographic presumption in the
final rule to those occurring while the worker is traveling.
The Department of Energy (Ex. 15: 163) expressed a concern about
overseas travel, remarking ``For employees who travel in the U.S., the
standard makes sense. For employees who travel out of the country,
additional burdens to them are generally incurred. Travelers to
tropical locations or other areas with different fauna and microbes may
incur diseases that are not indigenous to the U.S.'' In response, OSHA
notes that the recordkeeping regulation does not apply to travel
outside the United States because the OSH Act applies only to the
confines of the United States (29 U.S.C. Sec. 652(4)) and not to
foreign operations. Therefore, the OSHA recordkeeping regulation does
not apply to non-U.S. operations, and injuries or illnesses that may
occur to a worker traveling outside the United States need not be
recorded on the OSHA 300 Log.
Working at Home
The final rule also includes provisions at Sec. 1904.5(b)(7) for
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determining the work-relatedness of injuries and illnesses that may
arise when employees are working at home. When an employee is working
on company business in his or her home and reports an injury or illness
to his or her employer, and the employee's work activities caused or
contributed to the injury or illness, or significantly aggravated a
pre-existing injury, the case is considered work-related and must be
further evaluated to determine whether it meets the recording criteria.
If the injury or illness is related to non-work activities or to the
general home environment, the case is not considered work-related.
The final rule includes examples to illustrate how employers are
required to record injuries and illnesses occurring at home. If an
employee drops a box of work documents and injures his or her foot, the
case would be considered work-related. If an employee's fingernail was
punctured and became infected by a needle from a sewing machine used to
perform garment work at home, the injury would be considered work-
related . If an employee was injured because he or she tripped on the
family dog while rushing to answer a work phone call, the case would
not be considered work-related. If an employee working at home is
electrocuted because of faulty home wiring, the injury would not be
considered work-related.
This provision is consistent with longstanding Agency practice
under the former recordkeeping system. It was also included in the
proposed rule (63 FR 4063), which read ``An injury or illness will be
considered work-related if it occurs while the employee is performing
work for pay or compensation in the home, if the injury or illness is
directly related to the performance of work rather than the general
home environment or setting.''
A number of commenters supported OSHA's proposed approach to
recording the injuries and illnesses of employees who work at home
(see, e.g., Exs. 15: 31, 146, 176, 231, 273, 301, 336, 348, 375, 406,
409, 413, 427, 429). The comments of the Council of Community Blood
Centers (CCBC) (Ex. 15: 336) are typical of the views of these
participants:
CCBC believes this is a good rule and should stay on the books.
Accident or illness should be work-related if it occurs at home and
is related to performance of the work, not the general home
environment or setting. Workers often are off the premises in a
variety of situations, such as travel, providing repair services, or
consultation. Just as injuries in these situations are reportable,
so should those during work at home, if authorized by the employer.
A large number of commenters objected to the proposed approach,
however (see, e.g., Exs. 65, 66, 78, 89, 105, 111, 123, 194, 200, 225,
239, 260, 262, 265, 277, 288, 330, 335, 341, 345, 360, 387, 393, 401,
406, 409, 430, 434, 440). Most of these commenters objected because of
the employer's perceived inability to control working conditions in the
home environment (see, e.g., Exs. 15: 89, 163, 194, 239, 262, 288, 330,
345, 360). For example, the Fort Howard Corporation commented:
Fort Howard strongly opposes OSHA's proposal to consider any
injuries and illnesses as ``work-related'' if it occurs while the
employee is performing work for pay or compensation in the home if
the injury or illness is directly related to the performance of the
work. Employers have absolutely no control over employees' homes.
They cannot oversee employees who are doing the work nor can they
effectively monitor the manner the work is conducted or the
environment in which it is conducted. OSHA's proposal could place
employers in the role of insuring the home as a safe work
environment. (Ex. 15: 194)
Again, as discussed above, OSHA is concerned that all non-minor
work-related cases be recorded on the Log and become part of the
national statistics, both because these injuries and illnesses provide
information about the safety and health of the work environment to
employers, employees, and safety and health professionals and because
collecting them may allow previously obscured safety and health issues
to be identified. Injuries and illnesses occurring while the employee
is working for pay or compensation at home should be treated like
injuries and illnesses sustained by employees while traveling on
business. The relevant question is whether or not the injury or illness
is work-related, not whether there is some element of employer control.
The mere recording of these injuries and illnesses as work-related
cases does not place the employer in the role of insuring the safety of
the home environment.
The law firm of Leonard, Ralston, Stanton & Remington, Chartered
(Ex. 15: 430) raised questions about OSHA's role when employees perform
office work activities in a home office:
The increasing incidence of home work (or ``telecommuting'')
raises some interesting issues. For example, does OSHA assume that
its right of inspection extends to an employee's private home? If
so, has the Agency examined the constitutionality of this position?
What control does the Agency assume an employer has over working
conditions in a private home? Does the Agency expect the employer to
inspect its employees' homes to identify unsafe conditions? Must the
employer require an employee to correct unsafe conditions in the
home (e.g., frayed carpet which presents a tripping hazard;
overloaded electrical wiring or use of extension cords; etc.) as a
condition of employment? If so, who must pay the cost of necessary
home improvements?
OSHA has recently issued a compliance directive (CPL 2-0.125)
containing the Agency's response to many of the questions raised by
this commenter. That document clarifies that OSHA will not conduct
inspections of home offices and does not hold employers liable for
employees' home offices. The compliance directive also notes that
employers required by the recordkeeping rule to keep records ``will
continue to be responsible for keeping such records, regardless of
whether the injuries occur in the factory, in a home office, or
elsewhere, as long as they are work-related, and meet the recordability
criteria of 29 CFR Part 1904.''
With more employees working at home under various telecommuting and
flexible workplace arrangements, OSHA believes that it is important to
record injuries and illnesses attributable to work tasks performed at
home. If these cases are not recorded, the Nation's injury and illness
statistics could be skewed. For example, placing such an exclusion in
the final rule would make it difficult to determine if a decline in the
overall number or rate of occupational injuries and illnesses is
attributable to a trend toward working at home or to a change in the
Nation's actual injury and illness experience. Further, excluding these
work-related injuries and illnesses from the recordkeeping system could
potentially obscure previously unidentified causal connections between
events or exposures in the work environment and these incidents. OSHA
is unwilling to adopt an exception that would have these potential
effects. As the BF Goodrich Company (Ex. 15: 146) said, ``[s]pecific
criteria to address employee work-at-home situations is appropriate to
assure consistent reporting in our changing work environment.''
Section 1904.6 Determination of New Cases
Employers may occasionally have difficulty in determining whether
new signs or symptoms are due to a new event or exposure in the
workplace or whether they are the continuation of an existing work-
related injury or illness. Most occupational injury and illness cases
are fairly discrete events, i.e., events in which an injury or acute
illness occurs, is treated, and then resolves completely. For example,
a worker may suffer a cut, bruise, or rash from a clearly recognized
event in the
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workplace, receive treatment, and recover fully within a few weeks. At
some future time, the worker may suffer another cut, bruise or rash
from another workplace event. In such cases, it is clear that the two
injuries or illnesses are unrelated events, and that each represents an
injury or illness that must be separately evaluated for its
recordability.
However, it is sometimes difficult to determine whether signs or
symptoms are due to a new event or exposure, or are a continuance of an
injury or illness that has already been recorded. This is an important
distinction, because a new injury or illness requires the employer to
make a new entry on the OSHA 300 Log, while a continuation of an old
recorded case requires, at most, an updating of the original entry.
Section 1904.6 of the final rule being published today explains what
employers must do to determine whether or not an injury or illness is a
new case for recordkeeping purposes.
The basic requirement at Sec. 1904.6(a) states that the employer
must consider an injury or illness a new case to be evaluated for
recordability if (1) the employee has not previously experienced a
recorded injury or illness of the same type that affects the same part
of the body, or (2) the employee previously experienced a recorded
injury or illness of the same type that affected the same part of the
body but had recovered completely (all signs and symptoms of the
previous injury or illness had disappeared) and an event or exposure in
the work environment caused the injury or illness, or its signs or
symptoms, to reappear.
The implementation question at Sec. 1904.6(b)(1) addresses chronic
work-related cases that have already been recorded once and
distinguishes between those conditions that will progress even in the
absence of workplace exposure and those that are triggered by events in
the workplace. There are some conditions that will progress even in the
absence of further exposure, such as some occupational cancers,
advanced asbestosis, tuberculosis disease, advanced byssinosis,
advanced silicosis, etc. These conditions are chronic; once the disease
is contracted it may never be cured or completely resolved, and
therefore the case is never ``closed'' under the OSHA recordkeeping
system, even though the signs and symptoms of the condition may
alternate between remission and active disease.
However, there are other chronic work-related illness conditions,
such as occupational asthma, reactive airways dysfunction syndrome
(RADs), and sensitization (contact) dermatitis, that recur if the ill
individual is exposed to the agent (or agents, in the case of cross-
reactivities or RADs) that triggers the illness again. It is typical,
but not always the case, for individuals with these conditions to be
symptom-free if exposure to the sensitizing or precipitating agent does
not occur.
The final rule provides, at paragraph (b)(1), that the employer is
not required to record as a new case a previously recorded case of
chronic work-related illness where the signs or symptoms have recurred
or continued in the absence of exposure in the workplace. This
paragraph recognizes that there are occupational illnesses that may be
diagnosed at some stage of the disease and may then progress without
regard to workplace events or exposures. Such diseases, in other words,
will progress without further workplace exposure to the toxic
substance(s) that caused the disease. Examples of such chronic work-
related diseases are silicosis, tuberculosis, and asbestosis. With
these conditions, the ill worker will show signs (such as a positive TB
skin test, a positive chest roentgenogram, etc.) at every medical
examination, and may experience symptomatic bouts as the disease
progresses.
Paragraph 1904.6(b)(2) recognizes that many chronic occupational
illnesses, however, such as occupational asthma, RADs, and contact
dermatitis, are triggered by exposures in the workplace. The difference
between these conditions and those addressed in paragraph 1904.6(b)(1)
is that in these cases exposure triggers the recurrence of symptoms and
signs, while in the chronic cases covered in the previous paragraph,
the symptoms and signs recur even in the absence of exposure in the
workplace. This distinction is consistent with the position taken by
OSHA interpretations issued under the former recordkeeping rule (see
the Guidelines discussion below). The Agency has included provisions
related to new cases/continuations of old cases in the final rule to
clarify its position and ensure consistent reporting.
Paragraph 1904.6(b)(3) addresses how to record a case for which the
employer requests a physician or other licensed health care
professional (HCP) to make a new case/continuation of an old case
determination. Paragraph (b)(3) makes clear that employers are to
follow the guidance provided by the HCP for OSHA recordkeeping
purposes. In cases where two or more HCPs make conflicting or differing
recommendations, the employer is required to base his or her decision
about recordation based on the most authoritative (best documented,
best reasoned, or most persuasive) evidence or recommendation.
The final rule's provisions on the recording of new cases are
nearly identical to interpretations of new case recordability under the
former rule. OSHA has historically recognized that it is generally an
easier matter to differentiate between old and new cases that involve
injuries than those involving illnesses: the Guidelines stated that
``the aggravation of a previous injury almost always results from some
new incident involving the employee * * * [w]hen work-related, these
new incidents should be recorded as new cases on the OSHA forms,
assuming they meet the criteria for recordability * * *'' (Ex. 2, p.
31). However, the Guidelines also stated that ``certain illnesses, such
as silicosis, may have prolonged effects which recur over time. The
recurrence of these symptoms should not be recorded as a new case on
the OSHA forms. * * * Some occupational illnesses, such as certain
dermatitis or respiratory conditions, may recur as the result of new
exposures to sensitizing agents, and should be recorded as new cases.''
OSHA developed and included specific guidance for evaluating when
cumulative trauma disorders (CTDs) (ergonomic injuries and illnesses,
now known as musculoskeletal disorders, or MSDs) should be recorded as
new cases in the Ergonomics Program Management Guidelines For
Meatpacking Plants (Ex. 11, p. 15) which were published in 1990. These
Guidelines provided:
If and when an employee who has experienced a recordable CTD
becomes symptom free (including both subjective symptoms and
physical findings), any recurrence of symptoms establishes a new
case. Furthermore, if the worker fails to return for medical care
within 30 days, the case is presumed to be resolved. Any visit to a
health care provider for similar complaints after the 30-day
interval ``implies reinjury or reexposure to a workplace hazard and
would represent a new case.''
Thus, the former rule had different ``new case'' criteria for
musculoskeletal disorders than for other injuries and illnesses. (For
the final rule's recording criteria for musculoskeletal disorders, see
Section 1904.12.)
OSHA's recordkeeping NPRM proposed a single approach to the
identification of new cases for all injuries and illnesses, including
musculoskeletal disorders. The proposal would have required the
recurrence of a pre-existing injury or illness to be considered a new
case to evaluate for recordability if (1) it resulted from a
[[Page 5964]]
new work event or exposure, or (2) 45 days had elapsed since medical
treatment, work restriction, or days away from work had ceased, and the
last sign or symptom had been experienced. The proposed approach would,
in effect, have extended the recurrence criteria for musculoskeletal
disorders to all injury and illness cases, but would have increased the
no-medical-intervention interval from 30 to 45 days. A recurrence of a
previous work-related injury or illness would have been presumed, under
the proposed approach, to be a new case if (1) it resulted from a new
work accident or exposure, or (2) 45 days had elapsed since medical
treatment had been administered or restricted work activity or days
away had occurred and since the last sign or symptom had been
experienced. This proposed presumption would have been rebuttable if
there was medical evidence indicating that the prior case had not been
resolved. In the proposal, OSHA also asked for input on the following
questions related to new case recording:
OSHA solicits comment on the appropriateness of the 45-day
interval. Is 45 days too short or long of a period? If so, should
the period be 30 days? 60 days? 90 days? or some other time period?
Should different conditions (e.g. back cases, asthma cases etc.)
have different time intervals for evaluating new cases?
OSHA is also seeking input for an improved way to evaluate new
cases. Should a new category of cases be created to capture
information on recurring injuries and illnesses? One option is to
add an additional ``check box'' column to the proposed OSHA Form 300
for identifying those cases that are recurrences of previously
recorded injuries and illnesses. This would allow employers,
employees and OSHA inspectors to differentiate between one time
cases and those that are recurrent, chronic conditions. This
approach may help to remove some of the stigma of recording these
types of disorders and lead to more complete records. OSHA solicits
input on this approach. Will a recurrence column reduce the stigma
of recording these types of cases? Should recurrences be included in
the annual summaries? Should a time limit be used to limit the use
of a recurrence column?
In response to the views and evidence presented by commenters to
the record, OSHA has decided not to adopt the proposed approach to the
recording of new/recurring cases in the final rule. Commenters
expressed a wide variety of views about the recording of recurring
injury and illness cases. Some commenters favored the proposed approach
as drafted. Others, however, objected to it on many grounds: (1) the
time limit should be longer or shorter than the 45 days proposed; (2)
the proposed approach would result in under- or overreporting; (3) it
would conflict with workers' compensation requirements; (4) it was too
restrictive (5) it would encourage excessive use of the health care
system; and (6) it should be replaced by a physician or other licensed
health care professional's opinion.
A number of commenters supported OSHA's proposed approach (see,
e.g., Exs. 15: 27, 65, 70, 151, 152, 154, 179, 180, 181, 185, 186, 188,
214, 331, 332, 336, 359, 387, 396, 424, 428). Representative of these
comments was one from The Fertilizer Institute (TFI):
TFI agrees with OSHA's proposed 45 day criterion for the
recording of new cases. Concerning OSHA's solicitation of comments
on whether different conditions should have different evaluation
periods, TFI encourages OSHA to adopt a single time period for all
conditions. Different evaluation periods for different conditions
will lead to complexity and confusion without any resulting benefit
to recordkeeping (Ex. 15: 154).
Other commenters supported the concept of using a time limit for
determining new cases, but thought the number of days should be higher
(see, e.g., Exs. 15: 45, 49, 61, 82, 89, 131, 147, 184, 235, 331, 389).
Some commenters generally opposed the time limit concept but made
recommendations for longer time periods if OSHA decided in the final
rule to adopt a time limit (see, e.g., Exs. 15: 38, 79, 89, 111, 136,
137, 141, 194, 224, 246, 266, 278, 288, 299, 313, 335, 352, 353, 430).
The longer intervals suggested by commenters included 60 days (see,
e.g., Exs. 15: 82, 389); 90 days (see, e.g., Exs. 15: 38, 49, 79, 147,
184, 246, 299, 313, 331, 335, 352, 353, 430); 120 days (Ex. 15: 194);
180 days (see, e.g., Exs. 15: 61, 111, 136, 137, 141, 224, 266, 278,
288); one year (Ex. 15: 131); and five years (Ex. 15: 89).
A large number of commenters opposed the proposed approach for
identifying new cases that would then be tested for their recordability
(see, e.g., Exs. 15: 33, 38, 39, 41, 78, 79, 89, 95, 102, 107, 111,
119, 127, 133, 136, 137, 141, 153, 171, 176, 194, 199, 203, 224, 225,
231, 246, 266, 273, 278, 281, 288, 289, 299, 301, 305, 307, 308, 313,
335, 337, 341, 346, 348, 352, 353, 375, 395, 405, 410, 413, 424, 425,
428, 430, 440). Some commenters argued that the proposed 45-day
interval was arbitrary (see, e.g., Exs. 15: 119, 203, 289, 313, 352,
353, 395), that it conflicted with workers' compensation new case
determinations (see, e.g., Exs. 15: 38, 119, 136, 137, 141, 224, 266,
278), that the approach would not work in the case of chronic injury
(see, e.g., Exs. 33; 15: 176, 199, 231, 273, 299, 301, 305, 308, 337,
346, 348, 375), or that the proposed 45-day rule would result in over-
reporting of occupational injuries and illnesses (see, e.g., Exs. 15:
119, 127, 136, 137, 141, 171, 199, 224, 266, 278, 305, 337, 424, 425).
The comments of the NYNEX Corporation (Ex. 15: 199) illustrate the
general concerns of these commenters:
We do not agree, however, with the second criterion of a symptom
free 45 day period following medical treatment, restriction, or days
away from work. This criterion fails to take into account the
persistent nature of many chronic or recurring conditions, i.e.,
back strains, musculoskeletal disorders, where the symptoms may
disappear for a period of time, but the underlying conditions are
still present. If adopted, this criterion could cause injury and
illness data to be artificially inflated with the onset of ``new''
cases, which in fact are recurrences of existing conditions. This in
turn could lead to false epidemics and a diversion of resources from
more legitimate workplace concerns.
On the other hand, William K. Principe of Constangy, Brooks &
Smith, LLC (Ex. 15: 428) was concerned that the proposed method would
result in fewer recordable cases:
Since many employees will report that they continued to
experience symptoms or that they continue to have good days and bad
days, the new rule will result in many fewer recordable CTD
[cumulative trauma disorder] cases. In fact, at some hand-intensive
manual operations, the number of CTD cases should be drastically
reduced under the proposal that 45 days must elapse since the last
symptom. There is something fundamentally wrong with a recordkeeping
system that one year shows a high incidence of CTDs and the next
shows a dramatic decline, when the underlying conditions remain
virtually identical.
United Parcel Service (Ex. 15: 424) stated that there should be no
time limit to determining whether or not a case is a recurrence:
In UPS's experience, however, it is a simple process to
determine, by medical referral or by examining prior medical
history, whether a condition is a recurrence. This has long been the
practice, and indeed the [proposal] contemplates it will remain the
practice through the first 44 days. It does not become any more
complex on the 45th, 50th, or 100th day; and if in an individual
employer's judgment it does, then the employer may of course report
the condition as a new injury.
Three commenters disapproved of OSHA's approach because it would
have been applicable to all recurrences and they believe that each case
must be evaluated on its own merits (Exs. 15: 78, 184, 203). The
International Dairy Foods Association (IDFA) described this concern
succinctly: ``Each injury has its own resolution based on the injury,
illness, degree, and numerous other factors that are characteristic of
the
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