[Federal Register: January 19, 2001 (Volume 66, Number 13)]
[Rules and Regulations]               
[Page 5965-6014]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja01-22]                         
 
[[pp. 5965-6014]] Occupational Injury and Illness Recording and Reporting 
Requirements

[[Continued from page 5964]]

[[Page 5965]]

individual. As such, it is impossible for OSHA or anyone else to set a 
valid number of days even if the resolution period is set on the basis 
of the type of illness/injury'' (Ex. 15: 203).
    In addition, the proposed 45-day approach was interpreted 
differently by different commenters. For example, David E. Jones of the 
law firm Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) suggested:

    The words ``either'' and ``or'' * * * should be deleted because 
an aggravation of the previously recorded injury or illness brought 
about within the 45-day period would require the entry of a new case 
at that time, thus negating the 45-day rule, leading to the adverse 
result that the 45-day rule otherwise would rectify. Accordingly, 
ODNSS recommends * * * ``A recurrence of a previous work-related 
injury or illness is a new case when it (1) results from a new work 
event or exposure and (2) 45 days have elapsed since medical 
treatment, restricted work activity, or days away from work (as 
applicable) were discontinued and the employee has been symptom-free 
(including both subjective symptoms and physical findings) (emphasis 
added) (Ex. 15: 406).

    In the final rule, OSHA has decided against the proposed approach 
of determining case resolution based on a certain number of days during 
which the injured or ill employee did not lose time, receive treatment, 
have signs or symptoms, or be restricted to light duty. OSHA agrees 
with those commenters who argued that the proposed approach was too 
prescriptive and did not allow for the variations that naturally exist 
from one injury and illness case to the next. Further, the record 
contains no convincing evidence to support a set number of days as 
appropriate. OSHA thus agrees with those commenters who pointed out 
that adoption of a fixed time interval would result in the 
overrecording of some injury and illness cases and the underrecording 
of others, and thus would impair the quality of the records.
    Further, OSHA did not intend to create an ``injury free'' time zone 
during which an injury or illness would not be considered a new case, 
regardless of cause, as ODNSS suggested. Instead, OSHA proposed that a 
case be considered a new case if either condition applied: the case 
resulted from a new event or exposure or 45 days had elapsed without 
signs, symptoms, or medical treatment, restricted work, or days away 
from work. There are clearly cases where an event or exposure in the 
workplace would be cause for recording a new case. A new injury may 
manifest the same signs and symptoms as the previous injury but still 
be a new injury and not a continuation of the old case if, for example, 
an employee sustains a fall and fractures his or her wrist, and four 
months later falls again and fractures the wrist in the same place. 
This occurrence is not a continuation of the fracture but rather a new 
injury whose recordability must be evaluated. The final rule's approach 
to recurrence/new case determinations avoids this and other recording 
problems because it includes no day count limit and relies on one of 
the basic principles of the recordkeeping system, i.e., that injuries 
or illnesses arising from events or exposures in the workplace must be 
evaluated for recordability.
    In response to those commenters who raised issues about 
inconsistency between the OSHA system and workers' compensation, OSHA 
notes that there is no reason for the two systems, which serve 
different purposes (recording injuries and illnesses for national 
statistical purposes and indemnifying workers for job-related injuries 
and illnesses) to use the same definitions. Accordingly, the final rule 
does not rely on workers' compensation determinations to identify 
injuries or illness cases that are to be considered new cases for 
recordkeeping purposes.
    Another group of commenters argued that the 45-day recording 
requirement would lead employers to spend money on unnecessary and 
costly health care (see, e.g., Exs. 15: 136, 137, 141, 224, 266, 278, 
305, 346, 348, 375). The views of the American Petroleum Institute 
(API) are representative: ``OSHA's proposal would also add 
substantially to employers' costs since it could require employees to 
make frequent trips to a health care professional, even if symptom 
free, just to avoid being recorded repeatedly on the OSHA log as new 
cases'' (Ex. 15: 375). Union Carbide Corporation (Ex. 15: 396) also 
remarked on the proposed approach's potential incentive for medical 
follow-up, but viewed such an incentive as a positive phenomenon, 
stating ``One benefit [of the proposed approach] is that it encourages 
medical follow-up for the employee.'' Although the proposed approach 
would not have ``required'' an employer to send a worker to a physician 
or other licensed health care professional, and OSHA is not persuaded 
that employers would choose to spend money in this way merely to avoid 
recording an occasional case as a new case, elimination of any set day-
count interval from the final rule will also have made the concerns of 
these commenters moot.
    OSHA also received a number of suggestions about the role of 
physicians and other licensed health care professionals (HCP) in new 
case determinations. A number of commenters recommended that the 
decision to record should be based solely on the opinions of a 
physician or other licensed health care professional (see, e.g., Exs. 
33: 15: 39, 95, 107, 119, 127, 133, 225, 289, 332, 335, 341, 387, 424, 
440). The National Grain and Feed Association, the National Oilseed 
Processors Association, and the Grain Elevator and Processing Society 
(Ex. 15: 119) commented as a group and recommended that ``[r]elying on 
a physician's opinion rather than an arbitrary timeframe would simplify 
recordkeeping and help ensure that the records are consistent with 
existing and accepted workers' compensation plans.''
    Other commenters recommended that, if OSHA adopted a day count time 
limit, the rule should specifically allow a physician's opinion to be 
used to refute a new case determination (see, e.g., Exs. 15: 65, 181, 
184, 203). Several others simply asked OSHA to provide more guidance on 
what type of medical evidence could be used in new case determinations 
(see, e.g., Exs. 15: 176, 231, 273, 301, 430). The National Wholesale 
Druggists' Association (NWDA) suggested that ``OSHA should also include 
a provision that the employee obtain written approval from a doctor 
that the employee's condition has been resolved before going back to 
work. Determining the end of treatment should be left in the hands of a 
medical professional and OSHA should require some type of documentation 
to that effect'' (Ex. 15: 185).
    OSHA has not included any provisions in the final rule that require 
an employer to rely on a physician or other licensed health care 
professional or that tell a physician or other licensed health care 
professional how to treat an injured or ill worker, or when to begin or 
end such treatment. In the final rule OSHA does require the employer to 
follow any determination a physician or other licensed health care 
professional has made about the status of a new case. That is, if such 
a professional has determined that a case is a new case, the employer 
must record it as such. If the professional determines that the case is 
a recurrence, rather than a new case, the employer is not to record it 
a second time. In addition, the rule does not require the employee, or 
the employer, to obtain permission from the physician or other licensed 
health care professional before the employee can return to work. OSHA 
believes that the employer is capable of, and often in the best 
position to, make return-to-work decisions.
    Southern California Edison (Ex. 15: 111) expressed concern that 
imposing a day limit would not take differences

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between types of injuries and illnesses into account, stating ``A 
recurrence of a previous work-related injury or illness should only be 
considered a new case when the injury or illness has completely healed. 
Severe muscle and nerve damage can take many weeks or months to 
properly heal.'' The final rule takes such differences into account, as 
follows. If the previous injury or illness has not healed (signs and 
symptoms have not resolved), then the case cannot be considered 
resolved. The employer may make this determination or may rely on the 
recommendation of a physician or other licensed health care 
professional when doing so. Clearly, if the injured or ill employee is 
still exhibiting signs or symptoms of the previous injury or illness, 
the malady has not healed, and a new case does not have to be recorded. 
Similarly, if work activities aggravate a previously recorded case, 
there is no need to consider recording it again (although there may be 
a need to update the case information if the aggravation causes a more 
severe outcome than the original case, such as days away from work).
    The Quaker Oats Company (Ex. 15: 289) suggested that employers 
should be permitted by the rule to decide whether a given case was a 
new case or not, without requirements in the rule:

    The 45 day interval on determining if a case is a new one or 
should be counted under a previous injury should be left to the 
discretion of the employer. They have the most intimate knowledge of 
the work environment, medical treatment of the affected employee and 
the status of their work-related injury or illness. I will agree 
that it is a difficult matter to decide and to assure consistency 
throughout industry * * * I believe that any number of days would 
simply be an arbitrary attempt at quantifying something that is best 
left to the medical judgment of a healthcare professional.

    Under the OSHA recordkeeping system, the employer is always the 
responsible party when it comes to making the determination of the 
recordability of a given case. However, if OSHA did not establish 
consistent new case determination criteria, a substantial amount of 
variability would be introduced into the system, which would undermine 
the Agency's goals of improving the accuracy and consistency of the 
Nation's occupational injury and illness data. Accordingly, OSHA has 
not adopted this suggested approach in the final rule.
    A number of commenters argued that the occurrence of a new event, 
exposure, or incident should be required to trigger the recording of a 
new case (see, e.g., Exs. 33, 15: 102, 171, 176, 231, 273, 301, 307, 
308, 405, 410, 413, 425). Representative of these comments was one from 
the Voluntary Protection Programs Participants' Association (VPPPA), 
which recommended that OSHA ``adopt a definition for new case that 
requires the occurrence of a new work-related event to trigger a new 
case. In the absence of this, the case would be considered recurring'' 
(Ex. 15: 425). OSHA agrees with the VPPPA that if no further event or 
exposure occurs in the workplace to aggravate a previous injury or 
illness, a new case need not be recorded. However, if events or 
exposures at work cause the same symptoms or signs to recur, the final 
rule requires employers to evaluate the injury or illness to see if it 
is a new case and is thus recordable.
    The OSHA statistical system is designed to measure the incidence, 
rather than prevalence, of occupational injury and illness. Incidence 
measures capture the number of new occupational injuries and illnesses 
occurring in a given year, while prevalence measures capture the number 
of such cases existing in a given year (prevalence measures thus 
capture cases without regard to the year in which they onset). 
Prevalence measures would therefore capture all injuries and illnesses 
that occurred in a given year as well as those unresolved injuries and 
illnesses that persist from previous years. The difference is 
illustrated by the following cases: (1) A worker experiences a cut that 
requires sutures and heals completely before the year ends; this injury 
would be captured both by an incidence or prevalence measure for that 
particular year. (2) Another worker retired last year but continues to 
receive medical treatment for a work-related respiratory illness that 
was first recognized two years ago. This case would be captured in the 
year of onset and each year thereafter until it resolves if a 
prevalence measure is used, but would be counted only once (in the year 
of onset) if an incidence measure is used.
    Because the OSHA system is intended to measure the incidence of 
occupational injury and illness, each individual injury or illness 
should be recorded only once in the system. However, an employee can 
experience the same type of injury or illness more than once. For 
example, if a worker cuts a finger on a machine in March, and is then 
unfortunate enough to cut the same finger again in October, this worker 
has clearly experienced two separate occupational injuries, each of 
which must be evaluated for its recordability. In other cases, this 
evaluation is not as simple. For example, a worker who performs 
forceful manual handling injures his or her back in 1998, resulting in 
days away from work, and the case is entered into the records. In 1999 
this worker has another episode of severe work-related back pain and 
must once again take time off for treatment and recuperation. The 
question is whether or not the new symptoms, back pain, are continuing 
symptoms of the old injury, or whether they represent a new injury that 
should be evaluated for its recordability as a new case. The answer in 
this case lies in an analysis of whether or not the injured or ill 
worker has recovered fully between episodes, and whether or not the 
back pain is the result of a second event or exposure in the workplace, 
e.g., continued manual handling. If the worker has not fully recovered 
and no new event or exposure has occurred in the workplace, the case is 
considered a continuation of the previous injury or illness and is not 
recordable.
    One reason for the confusion that is apparent in some of the 
comments on the proposal's approach to the recording of recurrences may 
be the custom that developed over the years of referring to recordable 
recurrences of work-related injuries and illnesses as ``new cases.'' 
See for example, 61 FR 4037/1 (``employers may be dealing with a re-
injury or recurrence of a previous case and must decide whether the 
recurrence is a ``new case'' or a continuation of the original case.'') 
The term ``new case'' tends to suggest to some that the case is totally 
original, when in fact new cases for OSHA recordkeeping purposes 
include three categories of cases; (1) totally new cases where the 
employee has never suffered similar signs or symptoms while in the 
employ of that employer, (2) cases where the employee has a preexisting 
condition that is significantly aggravated by activities at work and 
the significant aggravation reaches the level requiring recordation, 
and (3) previously recorded conditions that have healed (all symptoms 
and signs have resolved) and then have subsequently been triggered by 
events or exposures at work.
    Under the former rule and the final rule, both new injuries and 
recurrences must be evaluated for their work-relatedness and then for 
whether they meet one or more of the recording criteria; when these 
criteria are met, the case must be recorded. If the case is a 
continuation of a previously recorded case but does not meet the ``new 
case'' criteria, the employer may have to update the OSHA 300 Log entry 
if the original case continues to progress, i.e., if the status of the 
case worsens. For example, consider a case where an

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employee has injured his or her back lifting a heavy object, the injury 
resulted in medical treatment, and the case was recorded as a case 
without restricted work or days away. If the injury does not heal and 
the employer subsequently decides to assign the worker to restricted 
work activity, the employer is required by the final rule to change the 
case classification and to track the number of days of restricted work. 
If the case is a previous work-related injury that did not meet the 
recording criteria and thus was not recorded, future developments in 
the case may require it to be recorded. For example, an employee may 
suffer an ankle sprain tripping on a step. The employee is sent to a 
health care professional, who does not recommend medical treatment or 
restrictions, so the case is not recorded at that time. If the injury 
does not heal, however, and a subsequent visit to a physician results 
in medical treatment, the case must then be recorded.
    OSHA and employers and employees need data on recurring cases 
because recurrence is an important indicator of severity over the long 
term. Just as the number of days away is a useful indicator of health 
and safety risk at a particular establishment, so is the total number 
of injury and illness events and of exposures resulting in health 
consequences that occur in an establishment or industry. Further, any 
realistic assessment of occupational safety and health conditions 
should reflect the fact that some but not all injuries and illnesses 
have long-term consequences. In other words, a safety and health 
analysis should give less weight to an injury or illness that has a 
clear and relatively quick recovery without impairment of any kind and 
an injury or illness that is chronic in nature or one that involves 
recurring episodes that are retriggered by workplace events or 
exposures.
    Ignoring the fact that an occupational injury or illness is a 
recurrence occasioned by an event or exposure in the workplace would 
result in an underestimate of the true extent of occupational injury 
and illness and deprive employers, employees, and safety and health 
professionals of essential information of use in illness prevention. 
The other extreme, requiring employers to record on-going signs or 
symptoms repeatedly, even in the absence of an event or exposure in the 
workplace, would result in overstating the extent of illness. In terms 
of the recordkeeping system, deciding how most appropriately to handle 
new cases requires a balanced approach that minimizes both 
overrecording and underrecording. OSHA has dealt with this problem in 
the final rule by carefully defining the circumstances under which a 
chronic and previously recorded injury or illness must be considered 
closed and defining the circumstances under which a recurrence is to be 
considered a new case and then evaluated to determine whether it meets 
one or more of the recordability criteria.
    OSHA's proposal to apply a single criterion to the determination of 
the recordability of all recurrences of previously recorded injuries 
and illnesses received support from several commenters (see, e.g., Exs. 
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria 
for determining whether any injury or illness, including a 
musculoskeletal disorder, is to be treated as a new case or as the 
continuation of an ``old'' injury or illness. First, if the employee 
has never had a recorded injury or illness of the same type and 
affecting the same part of the body, the case is automatically 
considered a new case and must be evaluated for recordability. This 
provision will handle the vast majority of injury and illness cases, 
which are new cases rather than recurrences or case continuations. 
Second, if the employee has previously had a recorded injury or illness 
of the same type and affecting the same body part, but the employee has 
completely recovered from the previous injury or illness, and a new 
workplace event or exposure causes the injury or illness (or its signs 
or symptoms) to reappear, the case is a recurrence that the employer 
must evaluate for recordability.
    The implementation section of Sec. 1904.6 describes these 
requirements and includes explanations applying to two special 
circumstances. In the first case, paragraph 1904.6(b)(1) the employee 
has experienced a chronic injury or illness of a type that will 
progress regardless of further workplace exposure. Cases to which this 
provision applies are serious, chronic illness conditions such as 
occupational cancer, asbestosis, silicosis, chronic beryllium disease, 
etc. These occupational conditions generally continue to progress even 
though the worker is removed from further exposure. These conditions 
may change over time and be associated with recurrences of symptoms, or 
remissions, but the signs (e.g., positive chest roentgenogram, positive 
blood test) generally continue to be present throughout the course of 
the disease.
    The second kind of case, addressed in paragraph 1904.6(b)(b)(2), 
requires employers to record chronic illness cases that recur as a 
result of exposures in the workplace. These conditions might include 
episodes of occupational asthma, reactive airways dysfunction syndrome 
(RADS), or contact allergic dermatitis, for example.
    Paragraph 1904.6(b)(3) recognizes the role of physicians and other 
licensed health care professionals that the employer may choose to rely 
on when tracking a ``new case'' or making a continuation of an old case 
determination. If a physician or other licensed health care 
professional determines that an injury or illness has been resolved, 
the employer must consider the case to be resolved and record as a new 
case any episode that causes the signs and symptoms to recur as a 
result of exposure in the workplace. On the other hand, if the HCP 
consulted by the employer determines that the case is a chronic illness 
of the type addressed by paragraph 1904.6(b)(1), the employer would not 
record the case again. In either case, the employer would evaluate it 
for work-relatedness and then determine whether the original entry 
requires updating or the case meets the recording criteria. Paragraph 
(b)(3) also recognizes that the employer may ask for input from more 
than one HCP, or the employer and employee may each do so, and in such 
cases, the rule requires the employer to rely on the one judged by the 
employer to be most authoritative.
Adding a Recurrence Column to the OSHA 300 Log
    In the proposal, OSHA asked commenters whether the Log should 
include a column with a check-box that could be marked if a case was a 
recurrence of a pre-existing condition (61 FR 4037). Some commenters 
supported the proposed approach (see, e.g., Exs. 15: 27, 39, 61, 65, 
89, 154, 186, 214, 235, 277, 299, 305, 332, 336). For example, the 
National Association of Manufacturers (NAM) suggested that, in lieu of 
adopting a 45-day time limit, OSHA should add a column to the Log: ``If 
the Agency believes there is a need to track the number of recurring 
cases, we believe the better approach would be to add a column to the 
log which would permit the original entry for each injury or illness to 
be updated in the event of a recurrence'' (Ex. 15: 305). The American 
Association of Homes and Services for the Aging (AAHSA) agreed:

    [t]here should be a column on the injury and illness log for 
employers to check for reoccurring injuries. This addition would 
help the employer to identify possible patterns or problems 
associated with a specific job and find solutions. Recommendation: 
Add a column to the injury and illness log allowing the employer

[[Page 5968]]

to check when an employee is having a repetitive injury or illness 
(Ex. 15: 214).

    Other commenters did not support the proposal's approach to 
tracking recurrences (see, e.g., Exs. 15: 70, 78, 136, 137, 141, 151, 
152, 179, 180, 194, 224, 266, 278). The comments of Kathy Lehrman, RN, 
Occupational Health Nurse (Ex. 15: 136) are representative of these 
comments:

    The addition of a column to record recurrent conditions would 
not reduce the stigma and would lead to increased health care 
provider visits to avoid having an ongoing case labeled as a new 
case. * * * I do not see the value of including a new category of 
case designation. This runs counter to the simplification objective.

    After a review of the comments on this issue, OSHA has decided not 
to include such a check-box on the Log. The final rule adds several 
columns to the OSHA 300 form to collect data on the number of 
restricted workdays and on various types of occupational injuries and 
illnesses. The addition of these columns, and the decision to provide 
more space on the Log to add information on the case, has used up the 
available space on the form. Requiring employers to record recurrences 
would also be burdensome and make the rule more complex. Further, OSHA 
did not propose such a requirement, and this issue raises questions not 
adequately aired in the record. For example, if an employee has 
recurring episodes of low back pain, should the employer be required to 
record each day the employee experiences such pain as a recurring 
injury? OSHA is also unsure how recurrence data should be captured and 
used in the Nation's injury and illness statistics. For example, would 
a separate data set on recurrences, similar to data on injuries and 
illnesses, be produced by the BLS?
    OSHA has therefore decided that it is not appropriate to add a 
column to the Log to capture data on recurring injuries and illnesses. 
However, OSHA recognizes that data on injury and illness recurrence may 
be useful to employers and employees at individual worksites and 
encourages employers who wish to collect this additional information to 
do so; however, the final rule does not require employers to provide 
recurrence data on the Log.

Section 1904.7 General Recording Criteria

    Section 1904.7 contains the general recording criteria for 
recording work-related injuries and illnesses. This section describes 
the recording of cases that meet one or more of the following six 
criteria: death, days away from work, restricted work or transfer to 
another job, medical treatment beyond first aid, loss of consciousness, 
or diagnosis as a significant injury or illness by a physician or other 
licensed health care professional.
Paragraph 1904.7(a)
    Paragraph 1904.7(a) describes the basic requirement for recording 
an injury or illness in the OSHA recordkeeping system. It states that 
employers must record any work-related injury or illness that meets one 
or more of the final rule's general recording criteria. There are six 
such criteria: death, days away from work, days on restricted work or 
on job transfer, medical treatment beyond first aid, loss of 
consciousness, or diagnosis by a physician or other licensed heath care 
professional as a significant injury or illness. Although most cases 
are recorded because they meet one of these criteria, some cases may 
meet more than one criterion as the case continues. For example, an 
injured worker may initially be sent home to recuperate (making the 
case recordable as a ``days away'' case) and then subsequently return 
to work on a restricted (``light duty'') basis (meeting a second 
criterion, that for restricted work). (see the discussion in Section 
1904.29 for information on how to record such cases.)
Paragraph 1904.7(b)
    Paragraph 1904.7(b) tells employers how to record cases meeting 
each of the six general recording criteria and states how each case is 
to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a 
simple decision table listing the six general recording criteria and 
the paragraph number of each in the final rule. It is included to aid 
employers and recordkeepers in recording these cases.
1904.7(b)(2) Death
    Paragraph 1904.7(b)(2) requires the employer to record an injury or 
illness that results in death by entering a check mark on the OSHA 300 
Log in the space for fatal cases. This paragraph also directs employers 
to report work-related fatalities to OSHA within 8 hours and cross 
references the fatality and catastrophe reporting requirements in 
Sec. 1904.39 of the final rule, Reporting fatalities and multiple 
hospitalizations to OSHA.
    Paragraph 1904.7(b)(2) implements the OSH Act's requirements to 
record all cases resulting in work-related deaths. There were no 
comments opposing the recording of cases resulting in death. However, 
there were several comments questioning the determination of work-
relatedness for certain fatality cases and the appropriateness of 
reporting certain kinds of fatalities to OSHA. These comments are 
addressed in the sections of this preamble devoted to work-relationship 
and fatality reporting (sections 1904.5 and 1904.39, respectively).
Paragraph 1904.7(b)(3) Days Away From Work
    Paragraph 1904.7(b)(3) contains the requirements for recording 
work-related injuries and illnesses that result in days away from work 
and for counting the total number of days away associated with a given 
case. Paragraph 1904.7(b)(3) requires the employer to record an injury 
or illness that involves one or more days away from work by placing a 
check mark on the OSHA 300 Log in the space reserved for day(s) away 
cases and entering the number of calendar days away from work in the 
column reserved for that purpose. This paragraph also states that, if 
the employee is away from work for an extended time, the employer must 
update the day count when the actual number of days away becomes known. 
This requirement continues the day counting requirements of the former 
rule and revises the days away requirements in response to comments in 
the record.
    Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic 
requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not 
to count the day of the injury or illness as a day away, but is to 
begin counting days away on the following day. Thus, even though an 
injury or illness may result in some loss of time on the day of the 
injurious event or exposure because, for example, the employee seeks 
treatment or is sent home, the case is not considered a days-away-from-
work case unless the employee does not work on at least one subsequent 
day because of the injury or illness. The employer is to begin counting 
days away on the day following the injury or onset of illness. This 
policy is a continuation of OSHA's practice under the former rule, 
which also excluded the day of injury or onset of illness from the day 
counts.
    Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to 
record days-away cases when a physician or other licensed health care 
professional (HCP) recommends that the injured or ill worker stay at 
home or that he or she return to work but the employee chooses not to 
do so. As these paragraphs make clear, OSHA requires employers to 
follow the physician's or HCP's recommendation when recording the case. 
Further, whether the employee works or not is in the control of the

[[Page 5969]]

employer, not the employee. That is, if an HCP recommends that the 
employee remain away from work for one or more days, the employer is 
required to record the injury or illness as a case involving days away 
from work and to keep track of the days; the employee's wishes in this 
case are not relevant, since it is the employer who controls the 
conditions of work. Similarly, if the HCP tells the employee that he or 
she can return to work, the employer is required by the rule to stop 
counting the days away from work, even if the employee chooses not to 
return to work. These policies are a continuation of OSHA's previous 
policy of requiring employees to follow the recommendations of health 
care professionals when recording cases in the OSHA system. OSHA is 
aware that there may be situations where the employer obtains an 
opinion from a physician or other health care professional and a 
subsequent HCP's opinion differs from the first. (The subsequent 
opinion could be that of an HCP retained by the employer or the 
employee.) In this case, the employer is the ultimate recordkeeping 
decision-maker and must resolve the differences in opinion; he or she 
may turn to a third HCP for this purpose, or may make the recordability 
decision himself or herself.
    Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account 
for weekends, holidays, and other days during which the employee was 
unable to work because of a work-related injury or illness during a 
period in which the employee was not scheduled to work. The rule 
requires the employer to count the number of calendar days the employee 
was unable to work because of the work-related injury or illness, 
regardless of whether or not the employee would have been scheduled to 
work on those calendar days. This provision will ensure that a measure 
of the length of disability is available, regardless of the employee's 
work schedule. This requirement is a change from the former policy, 
which focused on scheduled workdays missed due to injury or illness and 
excluded from the days away count any normal days off, holidays, and 
other days the employee would not have worked.
    Paragraph 1904.7(b)(3)(v) tells the employer how to count days away 
for a case where the employee is injured or becomes ill on the last day 
of work before some scheduled time off, such as on the Friday before 
the weekend or the day before a scheduled vacation, and returns to work 
on the next day that he or she was scheduled to work. In this 
situation, the employer must decide if the worker would have been able 
to work on the days when he or she was not at work. In other words, the 
employer is not required to count as days away any of the days on which 
the employee would have been able to work but did not because the 
facility was closed, the employee was not scheduled to work, or for 
other reasons unrelated to the injury or illness. However, if the 
employer determines that the employee's injury or illness would have 
kept the employee from being able to work for part or all of time the 
employee was away, those days must be counted toward the days away 
total.
    Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the 
days away from work when the injury or illness has resulted in 180 
calendar days away from work. When the injury or illness results in an 
absence of more than 180 days, the employer may enter 180 (or 180+) on 
the Log. This is a new provision of the final rule; it is included 
because OSHA believes that the ``180'' notation indicates a case of 
exceptional severity and that counting days away beyond that point 
would provide little if any additional information.
    Paragraph 1904.7(b)(3)(vii) specifies that employers whose 
employees are away from work because of a work-related injury or 
illness and who then decide to leave the company's employ or to retire 
must determine whether the employee is leaving or retiring because of 
the injury or illness and record the case accordingly. If the 
employee's decision to leave or retire is a result of the injury or 
illness, this paragraph requires the employer to estimate and record 
the number of calendar days away or on restricted work/job transfer the 
worker would have experienced if he or she had remained on the 
employer's payroll. This provision also states that, if the employee's 
decision was unrelated to the injury or illness, the employer is not 
required to continue to count and record days away or on restricted 
work/job transfer.
    Paragraph 1904.(b)(3)(viii) directs employers how to handle a case 
that carries over from one year to the next. Some cases occur in one 
calendar year and then result in days away from work in the next year. 
For example, a worker may be injured on December 20th and be away from 
work until January 10th. The final rule directs the employer only to 
record this type of case once, in the year that it occurred. If the 
employee is still away from work when the annual summary is prepared 
(before February 1), the employer must either count the number of days 
the employee was away or estimate the total days away that are expected 
to occur, use this estimate to calculate the total days away during the 
year for the annual summary, and then update the Log entry later when 
the actual number of days is known or the case reaches the 180-day cap 
allowed in Sec. 1904.7(b)(3)(v).
Comments on the Recording of Days Away From Work
    OSHA received a large number of comments on how days away should be 
counted. The issues addressed by commenters included (1) whether to 
count scheduled workdays or calendar days, (2) whether the day counts 
should be ``capped,'' and, if so, at what level, (3) how to count days 
away or restricted when employees are terminated or become permanently 
disabled, and (4) how to handle cases that continue to have days away/
restricted from one year to the next.
    Scheduled or calendar work days. OSHA proposed to count scheduled 
workdays, consistent with its long-standing policy of excluding normal 
days off such as weekends, holidays, days the facility is closed, and 
prescheduled vacation days (61 FR 4033). The proposal asked the public 
for input on which counting method--calendar days or scheduled work 
days--would be better, stating that ``OSHA is considering a 
modification to the concept of days away from work to include days the 
employee would normally not have worked (e.g. weekends, holidays, 
etc.). OSHA believes this change to calendar days would greatly 
simplify the method of counting days away by eliminating the need to 
keep track of, and subtract out, scheduled days off from the total time 
between the employee's first day away and the time the employee was 
able to return to full duty'' (61 FR 4033). The proposal also discussed 
the potential benefits and pitfalls of counting calendar days:

    Another potential benefit of changing to calendar days would be 
that the day count would more accurately reflect the severity of the 
injury or illness. The day count would capture all the days the 
employee would not have been able to work at full capacity 
regardless of work schedules. For example, if an employee, who 
normally does not work weekends, is injured on a Friday and is 
unable to work until the following Tuesday, the ``days away from 
work'' would be three (3), using calendar days, rather than one (1) 
day, using work days. If the same injury occurred on a Monday, the 
day count would be three (3) using either calendar or workdays. 
Changing the day count to calendar days would eliminate 
discrepancies based upon work schedules. Thus, the day counts would 
be easier to calculate and potentially more meaningful.
    One of the potential problems with this change would be that 
economic information on lost work time as a measure of the impact of 
job related injuries and illnesses on work

[[Page 5970]]

life would no longer be available. Employers could, however, 
estimate work time lost by applying a work day/calendar day factor 
to the recorded day counts. OSHA solicits comment on the idea of 
counting calendar days rather than work days, in particular, what 
potential do these methods have for overstating (i.e. counting 
calendar days) or understating (i.e. counting work days) the 
severity of injuries and illnesses? (61 FR 4034)

    OSHA received a large number of comments on the calendar day/
scheduled day issue. Many commenters suggested that OSHA track days 
away from work using its former method of counting scheduled workdays 
(see, e.g., Exs. 21; 30; 37; 15: 10, 16, 30, 42, 44, 48, 61, 66, 69, 
78, 79, 89, 100, 107, 108, 119, 121, 122, 127, 130, 133, 146, 151, 152, 
154, 159, 163, 170, 172, 179, 180, 200, 203, 204, 213, 214, 219, 226, 
246, 260, 262, 265, 281, 287, 297, 299, 300, 304, 305, 307, 308, 341, 
346, 356, 363, 364, 368, 373, 378, 384, 385, 387, 389, 390, 397, 401, 
404, 410, 413, 414, 424, 426, 427, 431, 440, 443). Many commenters also 
suggested that OSHA use calendar days instead of scheduled workdays to 
track days away from work (see, e.g., Exs. 19; 44; 15: 26, 27, 31, 34, 
44, 71, 75, 82, 105, 111, 119, 127, 136, 137, 138, 141, 153, 181, 182, 
188, 198, 205, 218, 224, 233, 242, 263, 266, 269, 270, 271, 278, 310, 
316, 326, 337, 345, 347, 350, 359, 369, 377, 391, 396, 405, 407, 409, 
415, 418, 423, 425, 428, 429, 434, 438). The arguments of each group 
fall loosely into two categories: which counting method provides the 
most meaningful data and which method is least burdensome.
    Arguing against counting calendar days, a number of commenters 
stated that calendar days would overstate lost workdays and 
artificially inflate or distort severity rates (see, e.g., Exs. 15: 10, 
16, 42, 44, 69, 108, 119, 127, 130, 133, 146, 159, 163, 170, 195, 203, 
213, 219, 281, 287, 297, 300, 304, 305, 307, 341, 356, 364, 373, 385, 
389, 390, 397, 404, 410, 414, 424, 426, 431, 440, 443). Some commenters 
also argued that the information would be ``false and misleading'' 
(see, e.g., Exs. 15: 287, 443), ``would not indicate true severity'' 
(Ex. 15: 108), or would make it difficult to compare data from the old 
rule with data kept under the new rules (see, e.g., Exs. 37; 15: 44, 
61, 130, 146, 226, 281, 297, 299, 300, 304, 341, 378, 384, 385, 397, 
404, 426, 440). Typical of these views was the one expressed by the 
American Trucking Associations (Ex. 15: 397), which stated that:

    This provision serves no useful purpose. Its proponents 
exaggerate the difficulty in computing days away from work under the 
current regulation. Instead, it will only serve the purpose of 
artificially increasing incidence and severity rates which would 
falsely designate a given worksite as unsafe or delineate it as a 
high hazard workplace. This false delineation of high hazardousness 
would also result in the workplace being unfairly targeted by OSHA 
for enforcement activities. In addition, this change would make it 
difficult, if not impossible, for employers to compare previous lost 
work day incidence rates with current rates. Such trend data is 
invaluable to employers in tracking progress made in eliminating 
workplace injuries and illnesses.

    Other commenters, however, argued that calendar days would be a 
better statistical measure (see, e.g., Exs. 15: 71, 75, 347, 425, 434, 
438). For example, the American Waterways Shipyard Conference (Ex. 15: 
75) stated:

    AWSC would also urge that ``days away from work'' be counted by 
calendar days rather than work days. This would ease the burden on 
establishments in their recordkeeping and would also make the data 
more useful. For example, an employee injured on Friday who does not 
return to work until Tuesday is currently counted as one-day off the 
job. If ``days away from work'' are calculated by calendar days, 
then this same injury would be counted as three days. The three day 
injury ruling is a more accurate indicator of the seriousness of the 
injury.

    The United Auto Workers (UAW) argued that: ``Calendar days are a 
much better measure of severity or disability than actual days which 
are adjusted for work schedule, vacations, layoffs and other extraneous 
disruptions. Frankly, counting actual days is a waste of effort, 
subject to manipulation and serves no public health purpose. It is 
relic and should be eliminated. The only reason some employers might 
wish to retain this measure is because they can generate a lower 
number'' (Ex. 15: 438).
    Other commenters were concerned that the change to counting 
calendar days would have an unfair effect on firms that rely more 
heavily on part-time workers, use alternative schedules, and/or use 
planned plant shutdowns (see, e.g., Exs. 15: 42, 96, 121, 159, 163, 
213, 219, 200, 262, 281, 299). For example, Dayton Hudson Corporation 
(Ex. 15: 121) stated that:

    DHC questions the concept of counting calendar days versus the 
proposed scheduled work days in documenting days away from work. 
Both methods have their value and also potential problems. The 
calendar method would make it much easier for a company to record 
the severity of an accident. However, this method would have a 
significant effect on an industry such as retailing, since the 
majority of our work force is part-time. If OSHA decides to go with 
the calendar method, there needs to be clearly defined examples 
referenced in the standard dealing with part-time workers.

    Northrop Grumman Corporation (Ex. 15: 42) asserted that: 
``[c]ounting calendar days for days away from work would have an 
adverse impact on those companies, such as aerospace companies, which 
routinely have shut downs for one or more weeks at a time. Employees 
injured on the day prior to shut down would have to be recorded as 
being injured, off work, for the entire time of the shut down.'' The 
Texas Chemical Council (Ex. 15: 159) expressed concern about the impact 
the change to calendar days might have on day counts involving 
alternative schedules:

    We believe the value of the reduced burden is not worth the 
skewed data that may result. OSHA's proposal may yield accurate data 
and better reflect severity when applied to work schedules following 
an 8 hour day, Monday through Friday. However, many industries 
utilize a 12 hour shift that provides periods of time off longer 
than the normal two day weekends. The proposed method of counting 
days could, for example, turn an injury requiring two days 
recuperation time into a case requiring four or more days to be 
counted. This would skew severity analysis utilizing days off data.

    However, the Eli Lilly Company (Ex. 15: 434) argued that calendar 
days would help equalize day counts: ``[a] calendar day count would 
ensure employer consistency and comparability even when employers have 
unique and variable shift works.''
    Other commenters argued that scheduled workdays are a better 
measurement because they measure economic impact and lost productivity 
(see, e.g., Exs. 15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364, 
367, 397). The Fertilizer Institute (Ex. 15: 154) argued that: 
``Although such a change might simplify the counting of days, it will 
make comparisons difficult for companies, trade and professional 
associations, and government agencies that are trying to measure the 
severity of injuries and illnesses in terms of productivity. In 
addition to the health and safety of its employees, industry is 
primarily concerned with the cost of work-related injuries and 
illnesses, as they relate to lost productivity. Thus, the basis of the 
lost work day, not the lost calendar day, is the most appropriate 
measurement to use.'' The Society of the Plastics Industry, Inc. (Ex. 
15: 364) urged OSHA to retain the scheduled days system because of its 
usefulness in measuring the economic impact of job-related accidents 
and the incentive such information provides for prevention efforts.
    In addition to arguments about the preferred way of counting days 
away, commenters discussed the issues of

[[Page 5971]]

simplification and the burden of counting days away from work with both 
methods. A number of commenters supported using calendar days because 
doing so would simplify the process and reduce burden (see, e.g., Exs. 
15: 71, 75, 82, 136, 137, 141, 224, 242, 263, 266, 269, 270, 278, 347, 
377, 415, 418, 423, 434). Two commenters made the point that using 
calendar days would make it easier to use computer software to 
calculate days away from work (Exs. 15: 347, 423). Representative of 
the comments supporting the use of calendar days to reduce the 
recording burden was the view of the Ford Motor Company (Ex. 15: 347):

    The single most significant change that could be made to 
simplify and reduce the burden of the current recordkeeping system 
would be a change to a calendar count for days away from work. This 
would eliminate the need to keep track of and subtract out any 
scheduled days off from the time of the employee's first day away 
until the time the employee was able to return to work. Of 
additional importance, a calendar count approach would provide a 
more accurate reflection of the severity of injuries and illnesses.
    Currently, tracking days away from work is a particular problem 
in that many individuals no longer work a traditional eight hours a 
day, Monday through Friday. Some individuals work four days a week, 
ten hours a day, others work every Saturday and/or Sunday, and some 
individuals have their scheduled days off during the week. Different 
employees in the same establishment commonly have different work 
schedules. Different departments are commonly on ``down time'' while 
the rest of the establishment may be in full operation. A calendar 
count will simplify the calculation of days away from work for 
alternative work schedules.
    In comparison to the current system, a calendar count will 
provide meaningful, consistent, and useful data, as well as provide 
an accurate reflection of severity. The calendar day count will also 
enhance the ability to develop software to standardize the 
recordkeeping process.
    In addition, the change to a calendar day count would enable 
Ford Motor Company to free up highly trained personnel for more 
productive and effective pursuits rather than tracking lost workdays 
under the current system. The cost of these resources to track lost 
workdays cases exceeds one million dollars per year.

    Even some of the commenters who argued against OSHA's adoption of a 
calendar day approach in the final rule acknowledged that counting 
calendar days would be simpler but emphasized that this added 
simplicity and reduction in burden would not offset the deleterious 
effect of this change on the data (see, e.g., Exs. 15: 44, 61, 69, 121, 
154, 159, 170, 195). The Institute for Interconnecting and Packaging 
Electronic Circuits (IPC) said that: ``According to IPC member 
companies, the potential simplification gains that may be achieved by 
this proposal would not outweigh the gross overreporting and, 
therefore, inaccurate data that would result'' (Ex. 15: 69).
    Other commenters arguing against calendar days stated that counting 
scheduled workdays is not difficult or onerous (see, e.g., Exs. 15: 
107, 146, 387), that counting calendar days would not simplify the 
counting of lost workdays (see, e.g., Exs. 15: 16, 119, 146, 281, 299, 
304, 308, 341, 364, 367, 424), that counting calendar days would add to 
the administrative burden (see, e.g., Exs. 15: 42, 146, 304, 308, 341, 
364, 367, 431), that counting calendar days would add confusion (see, 
e.g., Exs. 15: 204, 431), or that employers already report scheduled 
workdays to workers' compensation and thus this information is already 
available (see, e.g., Exs. 15: 367, 384). Commenters also cited the 
need to change computer software systems if a shift to calendar days 
was made (Ex. 15: 122) and argued that retaining scheduled workdays 
would require less training than moving to calendar days (see, e.g., 
Exs. 15: 37, 122, 133, 304, 384). The BF Goodrich Company (Ex. 15: 146) 
summed up these views:

    BF Goodrich's business systems are set up to count and track 
work days and work hours. We do not agree with the suggestion of 
counting calendar days rather than actual work days for Days Away 
From Work cases. Counting calendar days would improperly inflate the 
severity incidence rates which are calculated based on actual hours 
worked and defeat any efforts to perform trend analysis against 
previous years. Use of calendar days would also require unnecessary 
analysis of work capability for days that would not be worked 
anyway. There would be no reduction in burden in a calendar day 
system and there would be loss of severity trend analysis 
capability.

    A number of commenters pointed to the difficulty of analyzing days 
away for injuries that occur just before scheduled time off, such as 
before the weekend (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179, 
226, 281, 299, 341, 363, 389, 414, 424). The Institute for 
Interconnecting and Packaging Electronic Circuits (IPC) described the 
following scenario:

    [i]f a worker is injured on Friday, is sent home, and returns to 
work on Monday, the alternative [calendar day] proposal would 
require employers to count weekend days in the lost workday count. 
IPC believes that this alternative proposal would not accurately 
reflect the severity of the injury since, if the same injury had 
occurred on a Monday, the worker might have been able to return to 
work on Tuesday. (Ex. 15: 69)

    United Parcel Service (UPS) was concerned about the accuracy of 
employee reporting of injuries and illnesses under the calendar day 
system:

    [t]he cessation of the effects of an employee's injury or 
illness cannot reliably be determined in the case of a worker who 
``heals'' on the weekend. Thus, the number of days away from work 
and their impact on the perception of serious incidents will be 
substantially inflated. Indeed, it has been UPS's experience that a 
disproportionate number of injuries are reported on Friday and 
Monday; inclusion of claimed weekend injury, therefore, would 
greatly inflate OSHA statistics with factors that honest observers 
know to be linked, to some degree, with the universal attraction of 
an extended weekend. The risk, moreover, is not merely inflated 
numbers, but inflation of the apparent severity of those conditions 
that are difficult to verify and that are therefore the most likely 
resort of employees who would misreport a condition for time off 
(Ex. 15: 424).

    Another issue noted by commenters was the difficulty of getting 
medical attention over the weekend. For example, the American Ambulance 
Association (Ex. 15: 226) cautioned that ``The common practice of a 
health care provider is to defer an employee's return to work until 
after a weekend or holiday, due to limited staff resources for 
evaluating employee status on those days,'' and the Sandoz Corporation 
(Ex. 15: 299) noted that ``This change [to calendar days] would lead to 
overstatement of the severity in cases of part-time employees due to 
the difficulty of getting return-to-work clearance from medical 
personnel.''
    Two commenters (Exs. 15: 69, 15: 363) objected to counting calendar 
days based on a belief that counting these days would raise their 
workers' compensation insurance rates. For example, the Institute for 
Interconnecting and Packaging Electronic Circuits (IPC) stated that 
``Lost time is a major factor in insurance premiums for facilities. As 
a result, a definition that would over-estimate lost time would 
significantly raise facility insurance costs'' (Ex. 15: 69).
    Patrick R. Tyson, a partner in the law firm of Constangy, Brooks & 
Smith, LLC (Ex. 55X, pp. 99-100), strongly favored moving to a 
calendar-day-count system, for the following reason:

    [w]hat we've seen in some audits is companies that attempt to 
try to control the number of days that would be counted as lost work 
days by controlling the number of days that otherwise would be 
worked.* * *
    We * * * encountered one company that announced proudly in its 
newsletter that one particular employee should be congratulated 
because when she had to have surgery for carpal tunnel syndrome, 
clearly work related * * * she chose to have that surgery during

[[Page 5972]]

her vacation so that the company's million man hours of work without 
a lost time accident would not be interrupted. That doesn't make any 
sense where we encourage those kinds of things * * * We ought to 
consider a calendar count if only to address those kinds of 
situations. I understand that would cause problems with respect to 
those companies who use lost work days as a measure of the economic 
impact of injuries and illnesses in the workplace, but I suspect 
that a better measure of that would be worker's compensation. If 
it's a lost work day, you're going to pay comp on it. * * *

    OSHA agrees with some of the points made by those in favor of, and 
those opposed to, changing over to calendar day counts. After a 
thorough review of the arguments for each alternative, however, OSHA 
has decided to require employers to count calendar days, both for the 
totals for days away from work and the count of restricted workdays. 
OSHA does not agree with those commenters who argued that the counting 
of calendar days away from work would be a significant burden. The 
Agency finds that counting calendar days is administratively simpler 
than counting scheduled days away and thus will provide employers who 
keep records some relief from the complexities of counting days away 
from work (and days of restricted work) under the old system. For the 
relatively simple injury or illness cases (which make up the great 
majority of recorded cases) that involve a one-time absence from work 
of several days, the calendar-day approach makes it much easier to 
compare the injury/illness date with the return-to-work date and 
compute the difference. This process is easier than determining each 
employee's normal schedule and adjusting for normal days away, 
scheduled vacations, and days the facility was not open. The calendar 
method also facilitates computerized day counts. OSHA recognizes that, 
for those injuries and illnesses that require two or more absences, 
with periods of work between, the advantages of the calendar day system 
are not as significant; OSHA notes, however, that injuries and 
illnesses following this pattern are not common.
    Changing to a calendar day counting system will also make it easier 
to count days away or restricted for part-time workers, because the 
difficulties of counting scheduled time off for part-time workers will 
be eliminated. This will, in turn, mean that the data for part-time 
workers will be comparable to that for full-time workers, i.e., days 
away will be comparable for both kinds of workers, because scheduled 
time will not bias the counting method. Calendar day counts will also 
be a better measure of severity, because they will be based on the 
length of disability instead of being dependent on the individual 
employee's work schedule. This policy will thus create more complete 
and consistent data and help to realize one of the major goals of this 
rulemaking: to improve the quality of the injury and illness data.
    OSHA recognizes that moving to calendar day counts will have two 
effects on the data. First, it will be difficult to compare injury and 
illness data gathered under the former rule with data collected under 
the new rule. This is true for day counts as well as the overall number 
and rate of occupational injuries and illnesses. Second, it will be 
more difficult for employers to estimate the economic impacts of lost 
time. Calendar day counts will have to be adjusted to accommodate for 
days away from work that the employee would not have worked even if he 
or she was not injured or ill. This does not mean that calendar day 
counts are not appropriate in these situations, but it does mean that 
their use is more complicated in such cases. Those employers who wish 
to continue to collect additional data, including scheduled workdays 
lost, may continue to do so. However, employers must count and record 
calendar days for the OSHA injury and illness Log.
    Thus, on balance, OSHA believes that any problems introduced by 
moving to a calendar-day system will be more than offset by the 
improvements in the data from one case to the next and from one 
employer to another, and by the resulting improvements in year-to-year 
analysis made possible by this change in the future, i.e., by the 
improved consistency and quality of the data.
    The more difficult problem raised by the shift to calendar days 
occurs in the case of the injury or illness that results on the day 
just before a weekend or some other prescheduled time off. Where the 
worker continues to be off work for the entire time because of the 
injury or illness, these days are clearly appropriately included in the 
day count. As previously discussed, if a physician or other licensed 
health care professional issues a medical release at some point when 
the employee is off work, the employer may stop counting days at that 
point in the prescheduled absence. Similarly, if the HCP tells the 
injured or ill worker not to work over the scheduled time off, the 
injury was severe enough to require days away and these must all be 
counted. In the event that the worker was injured or became ill on the 
last day before the weekend or other scheduled time off and returns on 
the scheduled return date, the employer must make a reasonable effort 
to determine whether or not the employee would have been able to work 
on any or all of those days, and must count the days and enter them on 
the Log based on that determination. In this situation, the employer 
need not count days on which the employee would have been able to work, 
but did not, because the facility was closed, or the employee was not 
scheduled to work, or for other reasons unrelated to the injury or 
illness.
    Accordingly, the final rule adopts the counting of calendar days 
because this approach provides a more accurate and consistent measure 
of disability duration resulting from occupational injury and illness 
and thus will generate more reliable data. This method will also be 
easier and less burdensome for employers who keep OSHA records and make 
it easier to use computer programs to keep track of the data.
Capping the Count of Lost Workdays
    OSHA proposed to limit, or cap, the total number of days away from 
work the employer would be required to record. This would have been a 
departure from OSHA's former guidance for counting both days away from 
work and restricted workdays. The former rule required the employer to 
maintain a count of lost workdays until the worker returned to work, 
was permanently reassigned to new duties, had permanent work 
restrictions, or was terminated (or retired) for reasons unrelated to 
the workplace injury or illness (Ex. 2, pp. 47-50).
    OSHA's proposed regulatory text stated that ``[f]or extended cases 
that result in 180 or more days away from work, an entry of ``180'' or 
``180+'' in the days away from work column shall be considered an 
accurate count'' (61 FR 4058). In the preamble to the proposal, OSHA 
explained that day counts of more than 180 days would add negligible 
information for the purpose of injury and illness case analysis but 
would involve burden when updating the OSHA records. The proposed 
preamble also asked several questions: ``Should the days away from work 
be capped? Is 180 days too short or long of a period? If so, should the 
count be capped at 60 days? 90 days? 365 days? or some other time 
period?'' (61 FR 4033)
    A large number of commenters supported a cap on day counts (see, 
e.g., Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, 85, 89, 95, 105, 108, 
111, 119, 120, 121, 127, 132, 133, 136, 137, 141, 146, 153, 159, 170, 
173, 176, 180, 182, 185, 188, 194, 195, 198, 199, 203, 205, 213, 224, 
231, 233, 239, 242, 260, 262, 263, 265, 266, 269, 270, 271, 273, 278, 
283, 287, 288, 289, 297, 298, 301, 304, 307, 310,

[[Page 5973]]

316, 317, 321, 332, 334, 335, 336, 341, 345, 346, 347, 348, 351, 368, 
373, 374, 375, 377, 378, 384, 385, 387, 389, 390, 392, 397, 401, 404, 
405, 434, 437, 440, 442). The most common argument was that capping the 
counts would reduce the burden on employers (see, e.g., Exs. 21; 33; 
15: 82, 95, 111, 146, 154, 159, 170, 176, 182, 188, 213, 231, 260, 262, 
265, 273, 288, 289, 297, 301, 304, 305, 310, 341, 345, 346, 373, 389, 
390, 401, 442) and simplify the OSHA recordkeeping system (see, e.g., 
Exs. 21; 15: 188, 297, 373). Several commenters argued that such a 
change would produce a ``significant'' reduction in burden and cost 
(see, e.g., Exs. 15: 154, 159, 203, 297). The Miller Brewing Company 
comment (Ex. 15: 442) was representative: ``We endorse this cap on the 
days away from work (DAFW) calculation. Once a case reaches 180 days, 
it is clearly recognized as a serious case. The requirement to 
calculate days away from work beyond 180 is a time consuming 
administrative exercise which provides no value-added information 
relative to the severity of a given case. Again, we support this rule 
change and OSHA's attempt to simplify the recordkeeping process.''
    Commenters also pointed out that limiting the day counts would make 
it easier to count days for cases that span two calendar years (see, 
e.g., Exs. 15: 153, 194, 195, 289). Other commenters stated that it was 
difficult to modify the former year's records (Ex. 15: 153) and that 
the day count cap would ease the burden of tracking cases that span two 
calendar years (Ex. 15: 289).
    Several commenters stated that the benefits of recording extended 
day counts were insignificant (see, e.g., Exs. 15: 111, 159, 176, 184, 
260, 262, 265, 288, 297, 373, 401, 430, 434, 442), that they added 
negligible information for case analysis or safety and health program 
evaluation (Ex. 15: 434), and that there was no ``value added 
information'' from high day counts (see, e.g., Exs. 15: 260, 262, 265, 
401, 442). Others stated that capping the day counts would provide 
``adequate data'' (see, e.g., Exs. 15: 111, 159, 304, 345) and that 
there would be no loss of significant data for analysis (see, e.g., 
Exs. 15: 170, 184, 297, 341, 373). The McDonnell Douglas Corporation 
(Ex. 15: 297) argued that a cap ``[w]ould allow industry to avoid the 
significant and costly paperwork burdens associated with tracking lost 
workdays, without any appreciable reduction in OSHA's ability to 
identify significant workplace injuries and illnesses or to assure 
continuing improvement in workplace safety and health.''
    Support for capping the count of days away from work was not 
unanimous, and several commenters opposed a day count cap (see, e.g., 
Exs. 15: 31, 62, 197, 204, 225, 277, 294, 302, 350, 359, 369, 379). The 
National Safety Council stated that ``[n]o cap on counting lost 
workdays is necessary provided that the count automatically ends with 
termination, retirement, or entry into long-term disability. Only a 
small proportion of cases have extended lost workday counts so there is 
little additional recordkeeping burden. The additional information 
gained about long-term lost workday cases is important and keeps 
employers aware of such cases'' (Ex. 15: 359). Other commenters 
stressed that it was important to obtain an accurate accounting of days 
away to assess the severity of the case (see, e.g., Exs. 15: 294, 379, 
429, 440), that the counts were needed to make these cases visible 
(see, e.g., Exs. 15: 294, 440), and that the counts demonstrate the 
impact of long term absences (Ex. 15: 62). For example, the Boeing 
Company (Ex. 15: 294) argued that

    If the count is suspended after 180 days (or any other arbitrary 
number), an employer will lose valuable information regarding the 
true amount of lost work days and their associated costs. The 
experience of The Boeing Company indicates that there are a small 
number of cases that have many more than 180 days. The result is a 
disproportionate amount of total costs. Not having visibility of 
these cases would be a mistake.

    The United Steelworkers of America (USWA) offered several reasons 
for not adopting a day count cap: ``The USWA also strongly opposes 
capping lost work day cases at 180. We believe that no cap is necessary 
or desirable. Only a very small proportion of cases have extended lost 
workdays recorded so there is little additional recordkeeping burden. 
The additional information gained about long-term lost workday cases is 
important in evaluating the severity of the injury and it keeps 
attention on such cases'' (Ex. 15: 429).
    The International Brotherhood of Teamsters (IBT) opposed the 
capping of day counts on the basis that the OSH Act requires 
``accurate'' records, stating that:

    The IBT opposes the elimination of counting the days of 
restricted work activity and opposes capping the count of ``days 
away from work'' at 180 days. The IBT uses the restricted work 
activity day count to gauge the severity of an injury or illness. We 
are supported by the OSH Act, section 24(a) ``the Secretary shall 
compile accurate statistics on work injuries and illnesses which 
shall include all disabling, serious, or significant injuries or 
illnesses. * * *. The International Brotherhood of Teamsters 
maintains that the recording of restricted work activity day counts 
and counting of days away from work enables OSHA to compile accurate 
data on serious and significant injuries. (Ex. 15: 369)

    After a review of the evidence submitted to the record, OSHA has 
decided to include in the final rule a provision that allows the 
employer to stop counting days away from work or restricted workdays 
when the case has reached 180 days. OSHA's primary reason for this 
decision is that very few cases involve more than 180 days away or days 
of restricted work, and that a cap of 180 days clearly indicates that 
such a case is very severe. Continuing to count days past the 180-day 
cap thus adds little additional information beyond that already 
indicated by the 180-day cap.
Selection of the Day Count Cap
    A large number of commenters specifically supported the 180 day cap 
proposed by OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121, 
127, 136, 137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260, 
262, 263, 265, 266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368, 
377, 385, 401, 404, 423, 430, 437, 442). The Chemical Manufacturers 
Association (CMA) stated that ``CMA supports the use of a cap on the 
number of days away from work that must be counted. Once an employee 
misses more than 180 days from work * * * due a workplace injury or 
illness, the relative seriousness of the incident is determined and 
little benefit is derived from continuing to count the number of days 
for OSHA's recordkeeping system.'' The Fertilizer Institute (Ex. 15: 
154) supported 180 days because it ``is consistent with most corporate 
long-term disability plans.''
    Many commenters who supported a cap on counting days away 
recommended that OSHA adopt a number of days other than 180 (see, e.g., 
Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182, 
185, 188, 194, 195, 198, 199, 203, 213, 239, 246, 271, 272, 287, 289, 
297, 303, 304, 305, 307, 308, 317, 336, 347, 348, 351, 375, 378, 384, 
385, 404, 405, 407, 409, 410, 414, 425, 431, 434). The most common 
argument against capping at 180 days was that a few very serious cases 
would skew the statistical data (see, e.g., Exs. 15: 75, 180, 246, 271, 
385, 409). Hoffman-La Roche, Inc. argued for 90 days on the grounds 
that ``90 days is more than sufficient to get a read on the severity of 
the injury/illness. This would enable employers to obtain meaningful 
data that is not skewed by one or two cases'' (Ex. 15: 271).

[[Page 5974]]

    Commenters suggested a number of alternatives, including 30 days 
(see, e.g., Ex. 15: 414); 60 days (see, e.g., Exs. 15: 60, 108, 119, 
194, 203, 246, 287, 405); 60 or 90 (Ex. 15: 407); 90 days (see, e.g., 
Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303, 
317, 336, 347, 378, 409, 410, 425, 431); 50 to 100 days (see, e.g., 
Exs. 37; 15: 384); 90 to 120 days (Ex. 15: 71); 90 or 180 days (Ex. 15: 
434); 120 days (Ex. 15: 198); the equivalent of six months (see, e.g., 
Exs. 15: 82, 188, 199, 213, 304, 307, 308, 351, 375); one year (Ex. 15: 
122); and 60 days after the beginning of the new year (see, e.g., Ex. 
15: 195).
    The most common alternative recommended by commenters was 90 days 
(see, e.g., Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 
289, 297, 303, 317, 336, 347, 378, 409, 410, 425, 431). These 
commenters argued that 90 days would reduce the burden without a loss 
of information (see, e.g., Exs. 15: 75, 85, 239, 297, 425), that 90 
days is sufficient to determine severity (see, e.g., Exs. 15: 85, 105, 
271 272, 289, 303, 410), that 90 days matches existing labor agreements 
(see, e.g., Exs. 15: 378), and that 90 days limits the problems caused 
by a case that extends over 2 years (see, e.g., Exs. 15: 407, 431).

    NIOSH (Ex. 15: 407) commented that:
    NIOSH agrees with OSHA that ``day counts greater than 180 days 
add negligible information while entailing significant burden on 
employers when updating OSHA records.'' Therefore, NIOSH agrees with 
the concept of capping the count of days away from work at a maximum 
of 180 days, and recommends that OSHA also consider caps of 60 or 90 
days away from work.
    Currently, the Annual Survey of Occupational Injuries and 
Illnesses reports distributional data for the number of days away 
from work and the median number of days away from work for 
demographic (age, sex, race, industry, and occupation) and injury/
illness (nature, part of body, source, and event) characteristics. 
The largest category of days away from work reported by the BLS for 
days away from work is ``31 days or more.'' In 1992, the Annual 
Survey reported median days away from work that ranged from 1 day to 
236 days [U.S. Department of Labor 1995]. For most demographic and 
injury/illness categories, capping the count of days away from work 
at 180 days will not alter the values for either the percent of 
injuries in the ``31 days or more'' category or median days away 
from work.
    OSHA may wish to consider capping the count of days away from 
work at either the 60 or the 90 day level. Employers could be 
instructed to enter a value of 61+(or 91+) to indicate that the 
recorded injury or illness condition existed beyond the cap on the 
count of days away from were based on the 1992 Annual Survey data, 
no reported industry and only one reported occupation had a median 
of greater than 60 days (dental hygienist, median = 71). There was 
also a very small number of injury/illness characteristics with 
medians between 60 and 90 days or with medians exceeding 90 days. 
Eleven of the 13 instances in which the median exceeded 60 days away 
from work were based on distributions involving a small number of 
estimated cases i.e., only 100 to 400 nationally. Capping the count 
of days away from work at either 60 or 90 days would still allow the 
reporting of the proportion of cases involving days away from work 
in the ``31 days or more category'' that is currently being reported 
by the BLS. A minor limitation of capping the count of days away 
from work at 60 or 90 days is that for a very small number of 
characteristics, the median would have to be reported as exceeding 
the cap.

    Two commenters suggested that OSHA use months instead of days as 
the measurement (Exs. 15: 304, 404), and a number of commenters pointed 
out that OSHA's proposed 180 days should be 125 if based on 6 months of 
actual workdays instead of calendar days (see, e.g., Exs. 15: 199, 213, 
307, 308, 348).
    After careful consideration, OSHA has decided to cap the day counts 
at 180 days and to express the count as days rather than months. The 
calendar month is simply too large and unwieldy a unit of measurement 
for this purpose. The calendar-day method is the simplest method and 
will thus produce the most consistent data.
    OSHA has decided to cap the counts at 180 days to eliminate any 
effect such capping might have on the median days away from work data 
reported by BLS. This cap will continue to highlight cases with long 
periods of disability, and will also reduce the burden on employers of 
counting days in excess of 180. Using a shorter threshold, such as 90 
or even 120 days, could impact the injury and illness statistics 
published by the BLS, and could thus undermine the primary purpose of 
this regulation: to improve the quality and utility of the injury and 
illness data. Using a shorter time frame would also make it harder to 
readily identify injuries and illnesses involving very long term 
absences. The rule also does not require the employer to use the 
designation of 180+ or otherwise require cases extending beyond 180 
days to be marked with an asterisk or any other symbol, as suggested by 
various commenters (see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407, 
425). Employers who wish to attach such designations are free to do so, 
but OSHA does not believe such designations are needed.
Counting Lost Workdays When Employees Are No Longer Employed by the 
Company
    The proposed rule contained a provision that would have allowed the 
employer to stop counting the days away from work when the worker was 
terminated for reasons unrelated to an injury or illness (61 FR 4058). 
This provision would have continued OSHA's former policy on this 
matter, which allowed the employer to stop counting days away or 
restricted workdays when the employee's employment was terminated by 
retirement, plant closings, or like events unrelated to the employee's 
work-related injury or illness (Ex. 2, pp. 49, 50). The final rule, at 
paragraph 1904.7(b)(3)(vii), permits employers to stop counting days 
away if an injured or ill employee leaves employment with the company 
for a reason unrelated to the injury or illness. Examples of such 
situations include retirement, closing of the business, or the 
employee's decision to move to a new job.
    Paragraph 1904.7(b)(3)(vii) also requires employers whose employees 
have left the company because of the injury or illness to make an 
estimate of the total days that the injured or ill employee would have 
taken off work to recuperate. The provisions in paragraph 
1904.7(b)(3)(vii) also apply to the counting of restricted or 
transferred days, to ensure that days are counted consistently and to 
provide the simplest counting method that will collect accurate data. 
OSHA's reasoning is that day counts continue to be relevant indicators 
of severity in cases where the employee was forced to leave work 
because of the injury or illness.
Handling Cases That Cross Over From One Year to the Next
    A special recording problem is created by injury and illness cases 
that begin in one year but result in days away from work or days of 
restricted work in the next year. Under the former rule, the employer 
was to record the case once, in the year it occurred, and assign all 
days away and restricted days to that case in that year (Ex. 2, p. 48). 
Under the rule being published today, this policy still applies. If the 
case extends beyond the time when the employer summarizes the records 
following the end of the year as required by Sec. 1904.32, the employer 
is required by paragraph 1904.7(b)(3)(viii) to update the records when 
the final day count is known. In other words, the case is entered only 
in the year in which it occurs, but the original Log entry must 
subsequently be updated if the day count extends into the following 
year.
    In addition to the NIOSH (Ex. 15: 407) comments on the day counts 
summarized above, the Society for Human Resource Management (Ex. 15: 
431) urged OSHA to adopt a lower day

[[Page 5975]]

count cap to limit the ``crossover'' problem. Two commenters urged OSHA 
to take a new approach to cases that extend over two or more years. 
Both the Laborers' Health & Safety Fund of North America (Ex. 15: 310) 
and the Service Employees International Union (Ex. 15: 379) recommended 
that these cases be recorded in each year, with the days for each year 
assigned to the appropriate case. The Laborers' Health & Safety Fund of 
North America (Ex. 15: 310) stated:

    One concern with a large number of days away from work is how to 
record the lost days which begin in one calendar year and end in a 
following calendar year. We suggest that it is best to record the 
number of days lost from the date of the injury to the end of the 
calendar year, and to enter the injury again on the following year's 
OSHA 300 with the remaining days of lost time up to the 180 day 
maximum. A box should be available to indicate that the entry is a 
continuation from the prior year.

    As stated earlier, OSHA has decided on the 180 day cap for both 
days away and days of restricted work cases to ensure the visibility of 
work-related injuries and illnesses with long periods of disability. 
The final rule also requires the employer to summarize and post the 
records by February 1 of the year following the reference year. 
Therefore, there will be some cases that have not been closed when the 
records are summarized. Although OSHA expects that the number of cases 
extending over two years will be quite small, it does not believe that 
these cases warrant special treatment. A policy that would require the 
same case to be recorded in two years would result in inaccurate data 
for the following year, unless special instructions were provided. 
Accordingly, the final rule requires the employer to update the Log 
when the final day count is known (or exceeds 180 days), but to record 
the injury or illness case only once. This approach is consistent with 
OSHA's longstanding practice and is thus familiar to employers.
Miscellaneous Day Counting Issues
    Two commenters provided additional comments for OSHA to consider on 
the issue of counting days away from work. The Laborers' Health & 
Safety Fund of North America (Ex. 15: 310) recommended that OSHA 
require employers to enter a count of 365 days away from work on the 
Log for any fatality case:

    In a recent project we used OSHA 200 data from road construction 
and maintenance employers to determine the causes and relative 
severities of serious injuries. The number of lost workdays plus 
restricted work activity days for an injury event or type was used 
as a measure of severity. In quite a few individual injury cases, 
the number of days away from work entry was not available because of 
the severity of the injury or because the injury resulted in a 
fatality. For recordkeeping purposes, we would suggest a maximum cap 
of 180 days for a non-fatal serious injury of long duration, and an 
automatic entry of 365 for fatalities. Using this method, the most 
severe cases would be weighted appropriately, with fatalities 
carrying the heaviest weight. Also, entering a lost workday number 
for fatalities would enable fatalities to count in a single and 
simple ``severity-weighted Lost Work Day Injury and Fatality (LWDIF) 
rate''.

    OSHA has not adopted the Laborers' Health & Safety Fund of North 
America recommendation. OSHA believes that fatalities must be 
considered separately from non-fatal cases, however severe the latter 
may be. When an employee dies due to a work-related injury or illness, 
the outcome is so severe and so important that it must be treated 
separately. Merging the two types of cases would diminish the 
importance of fatality entries and make the days away data less useful 
for determining the severity of days away injury cases. Accordingly, 
the final rule being published today does not reflect this 
recommendation.
    The Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look 
at days of hospitalization as a measure of severity, stating ``[t]he 
number of days hospitalized does provide a more objective indication of 
the seriousness of injury or illness, if for no other reason than cost 
control by insurance companies. If OSHA can document a legitimate use 
for an indicator of the ``seriousness'' of an injury, it may want to 
consider hospital stay time.'' OSHA has considered the use of 
hospitalized days, but has rejected them as a measure of injury or 
illness severity. Although these day counts may be a reasonable proxy 
for severity, they are applicable only in a relatively small number of 
cases.
Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job
    Another class of work-related injuries and illnesses that Section 
8(c) of the Act identifies as non-minor and thus recordable includes 
any case that results in restriction of work or motion2 or transfer 
to another job. Congress clearly identified restricted work activity 
and job transfer as indicators of injury and illness severity.
---------------------------------------------------------------------------

    2 The term restricted motion has been interpreted to mean 
restricted work motion and to be essentially synonymous with 
restricted work. OSHA does not distinguish between the two terms. 
OSHA's former Guidelines (Ex. 2, p. 43) clearly stated that a 
restriction of work or motion, such as that resulting from a 
bandaged finger, that did not also impair work was not recordable, 
and that is also the interpretation of the final rule.
---------------------------------------------------------------------------

    In the years since OSHA has been enforcing the recordkeeping rule, 
however, there has been considerable misunderstanding of the meaning of 
the term ``restricted work,'' and, as a result, the recording of these 
cases has often been inconsistent. The Keystone Report (Ex. 5), which 
summarized the recommendations of OSHA stakeholders on ways to improve 
the OSHA recordkeeping system, noted that restricted work was perhaps 
the least understood of the elements of the system.
    This section of the Summary and Explanation first discusses the 
former recordkeeping system's interpretation of the term restricted 
work, describes how the proposed rule attempted to revise that 
interpretation, and then summarizes and responds to the comments OSHA 
received on the proposed approach to the recording of work restriction 
and job transfer cases. Finally, this section explains the final rule's 
restricted work and job transfer requirements and OSHA's reasons for 
adopting them.
The Former Rule
    The former recordkeeping rule did not include a definition of 
restricted work or job transfer; instead, the definition of these terms 
evolved on the basis of interpretations in the BLS Guidelines (Ex. 2, 
p. 48). The Guidelines stated that restricted work cases were those 
cases ``where, because of injury or illness, (1) the employee was 
assigned to another job on a temporary basis; or (2) the employee 
worked at a permanent job less than full time; or (3) the employee 
worked at his or her permanently assigned job but could not perform all 
the duties connected with it.'' The key concepts in this interpretation 
were that work was to be considered restricted when an employee 
experienced a work-related injury or illness and was then unable, as a 
result of that injury or illness, to work as many hours as he or she 
would have been able to work before the incident, or was unable to 
perform all the duties formerly connected with that employee's job. 
``All duties'' were interpreted by OSHA as including any work activity 
the employee would have performed over the course of a year on the job.
    OSHA's experience with recordkeeping under the former system 
indicated that employers had difficulty with the restricted work 
concept. They questioned the need for keeping a tally of restricted 
work cases, disagreed with the ``less than full time'' concept, or

[[Page 5976]]

were unsure about the meaning of ``all the duties connected with [the 
job].'' (In OSHA's experience, employers have not generally had 
difficulty understanding the concept of temporary job transfer, which 
are treated in the same way as restricted work cases for recordkeeping 
purposes. The following discussion thus focuses on restricted work 
issues.) The changes OSHA proposed to make to the work restriction 
concept (61 FR 4033) were intended to address these employer concerns.
The Proposed Rule
    The proposal would have changed restricted work recordkeeping 
practices markedly. For example, the proposal would have required 
employers to acknowledge that the case involved restricted work by 
placing a check in the restricted work column on the Log but would no 
longer have required them to count the number of restricted work days 
associated with a particular case. At the time of the proposal, OSHA 
believed that dropping the requirement to count restricted days was 
appropriate because the Agency lacked data showing that restricted work 
day counts were being used by employers in their safety and health 
programs. In addition, the proposal would have limited the work 
activities to be considered by the employer in determining whether the 
injured or ill worker was on restricted work. Under the former rule, 
employers had to consider whether an injured or ill employee was able 
to perform ``all the duties'' normally connected with his or her job 
when deciding if the worker's job was restricted; OSHA interpreted 
``all the duties'' to include any work activity the employee performed 
at any time within a year. Under the proposal, the duties that the 
employer would have been required to consider were narrowed to include 
only (1) those work activities the employee was engaged in at the time 
of injury or illness onset, or (2) those activities the employee would 
have been expected to perform on that day (61 FR 4059). OSHA also 
requested comment in the proposal on the appropriateness of limiting 
the activities to be considered and on other definitions of work 
activities that should be considered, e.g., would it be appropriate not 
to consider an employee to be on restricted work if he or she is able 
to perform any of his or her former job activities? (61 FR 4059).
Comments on the Proposed Rule's Restricted Work and Job Transfer 
Provisions
    The comments OSHA received on these provisions were extensive. 
Commenters offered a wide variety of suggestions, including that OSHA 
eliminate restricted work activity cases from the recordkeeping system 
altogether, that the proposed definition of restricted work activity be 
changed, that the proposed approach be rejected, that it be adopted, 
and many other recommendations. These comments are grouped under topic 
headings and are discussed below.
Eliminate the Recording of Restricted Work Cases
    Several commenters recommended that OSHA completely eliminate the 
recording of restricted work cases because, in the opinion of these 
commenters, the concept confused employers, created disincentives to 
providing light duty work or return-to-work programs, and provided no 
useful information (see, e.g., Exs. 15: 119, 203, 235, 259, 336, 414, 
427). For example, the American Bakers Association said, ``We believe 
that the concept and definitions of `restricted work activity' should 
be eliminated. That term and its proposed definition is so ambiguous as 
to be unworkable, and information gleaned from that terminology would 
have little reliability or usefulness'' (Ex. 15: 427).
    The National Grain and Feed Association agreed, arguing that the 
recording of restricted work cases should be eliminated on the 
following grounds:

    [w]e agree with the conclusion of the Keystone Report that ``the 
recording of restricted work is perhaps the least understood and 
least accepted concept in the recordkeeping system.'' We disagree 
with OSHA, however, that the concept of restricted work is 
meaningful. For example, there is a wide range of restrictions that 
may be placed on an injured employee's activity after returning to 
work depending on the nature of the injury (e.g., the range of work 
possible for an employee who has experienced a slight sprain versus 
an employee with a broken bone). Additionally, the concept of 
restricted work is greatly dependent on individual employee 
motivation and job description. * * * Importantly, we believe the 
concepts embodied in the proposed restricted work definition run 
counter to modern work practices that encourage workers to return to 
productive work at the worksite. Workers who have experienced minor 
injuries on the job can return to productive work under employer 
``return-to-work'' programs. For this reason, the concept of 
restricted work is arbitrary and ultimately of little use to either 
evaluating the effectiveness of an employer's safety and health 
programs or determining the exposure of workers to a hazard at a 
specific worksite. We, therefore, recommend that the Agency delete 
the category of restricted work injuries from the proposed changes 
to 29 CFR 1904. Removal of this section will simplify the 
recordkeeping system and make it more ``user friendly.'' We support 
deletion of this category of injury because we think it will make 
the system more complex and is inconsistent with current practices 
of returning employees back to productive work at the earliest date 
(Ex. 15: 119).
Revise the Proposed Definition of a Restricted Work Case
    Most of the remaining comments recommended either that the 
definition of restricted work in the final rule be revised to include a 
more inclusive set of job activities or functions or a less inclusive 
set. For example, the Small Business Administration (Ex. 51) was 
concerned that:

    [t]he new definition for classifying ``restricted work 
activity'' could increase the number of cases that would be subject 
to this standard, and subsequently, classified as a recordable 
incident. Small businesses would face increased recordkeeping. Under 
the proposed definition, a case would be determined as a 
``restricted work activity'' if the employee cannot perform what he 
or she was doing at the time of the illness or injury, or he or she 
could not perform the activities scheduled for that day. While this 
would be a very simple method, it would encompass more recordable 
incidents. Many workers have a myriad of tasks associated with their 
job. If an employee can return to work and perform functions within 
their job description, this should not be considered ``restricted 
work activity''. * * *

    Several commenters recommended that OSHA rely on a definition of 
restricted work that would focus on ``non productive work'' and exclude 
the recording of any case where the employee was still productive (see, 
e.g., Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). For example, 
Countrymark Cooperative, Inc. (Ex. 15: 9) stated:

    [w]e disagree with a portion of the definition for restricted 
work activity. We agree that this should include injuries or 
illnesses where the worker is not capable of performing at full 
capacity for a full shift. However, by addressing the task that they 
were engaged in at the time of the injury will create problems. Most 
employees today have numerous assignments and responsibilities. They 
move from one task to another during a given day and during a given 
week. What they are doing at the time they are injured may not be 
the assignment for the next day or the next week. In these cases, 
they may be back at work in a fully productive role, but not doing 
the same task as when they were hurt. If they are performing a fully 
productive role within the same job description, but cannot perform 
the role of the job they were doing at the time, they should not be 
penalized. In many cases, this job task may not be active at the 
time they return. * * * It should be very clear that the ability to 
return an employee to a productive role (whether 50% or 100%) is 
extremely important to any ``Return-to-Work'' Program. If that 
person is returned to work and is

[[Page 5977]]

performing at full capacity in a given task within their job 
description, this should not be recorded unless it meets other 
criteria such as medical treatment. If we return to the days of 
recording these and penalizing the employer, they may be inclined to 
return to the days of only allowing employees to return to work when 
they are 100% in all given tasks within their job description. If 
this occurs, we all lose. * * * We do agree that any time an 
employee is returned to work and is restricted to only perform 
certain jobs, can only return for a limited duration, or must be 
reassigned to another task, this should be recorded as a restricted 
work case (Ex. 15: 9).

    Others recommended that OSHA adopt the Keystone Report's definition 
of restricted work (see, e.g., Exs. 15: 123, 129, 145, 225, 359, 379, 
418). For example, the National Safety Council recommended:

    [t]he concept of restricted work activity as described on page 
4046 [of the Federal Register] is one with which the Council 
concurs, but the specific wording in proposed section 1904.3 is less 
clear. The colon following the opening clause of the definition ``at 
full capacity for a full shift:'' seems to mean that the employee 
must be able to perform the task during which he/she was injured and 
the other tasks he/she performed or would have performed that day 
not only for the normal frequency or duration, but ``at full 
capacity for a full shift.'' For example, if the employee were 
required to open a valve at the start of a shift and close it at the 
end of the shift, the current wording seems to say that if the 
employee could not spend the entire shift opening and closing the 
valve, then his/her work activity is restricted. * * * The Council 
also believes that the concept of restricted work activity as 
formulated by the Keystone Report is appropriate in that it 
represents a consensus among the various stakeholder groups. For 
this reason, we also recommend that the task limitations refer to 
the week's activities rather than the day's activities (Ex. 15: 
359).

    The Union of Needletrades, Industrial and Textile Employees (UNITE) 
agreed with the National Safety Council that a different time period 
should be used in determining what job activities to consider. UNITE 
suggested that OSHA use the employee's monthly, rather than daily or 
weekly, duties to define restricted work activity (Ex. 15: 380).
    A few commenters expressed concern that use of the proposed 
restricted work definition could lead employers to include unusual, 
extraordinary or rarely performed duties in the ``work activities'' to 
be considered when determining whether a case was a restricted work 
case (see, e.g., Exs. 15: 80, 247). For example, the Arizona Public 
Service Company said:

    [d]etermining restricted duty days should remain as it currently 
is in the Guidelines. The restriction should focus on the ability of 
the employee to perform all or any part of his or her normal job 
duties. Focusing on what specifically they were doing at the time of 
injury could incorrectly base this determination on an activity that 
is performed rarely. Also, focusing on what they were scheduled to 
do for that week would not be useful for those whose schedules can 
change daily (Ex. 15: 247).
Adopt the Americans With Disabilities Act Definition of Essential 
Duties
    The Laboratory Corporation of America's comment (Ex. 15: 127) was 
typical of those of several commenters who suggested that OSHA use the 
concept of essential job duties that is also used for the 
administration of the Americans with Disabilities Act (ADA) (see, e.g., 
Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431):

    [t]he definition used by the Americans with Disability Act (ADA) 
would be very useful here. That definition indicates that restricted 
work exists if an employee is unable to perform the essential 
functions of his/her job. Since these essential functions are 
identified in the employee's job description, the employer would 
have a consistent ``yardstick'' with which to make this 
determination for each employee.

Adoption of the Proposed Approach Will Lead to Underreporting
    Some commenters, such as the AFL-CIO, opposed the proposed approach 
to restricted work on the grounds that it would result in 
underreporting:

    [w]e believe this proposed provision would entice employers to 
manipulate records and lead to further under-reporting. We strongly 
suggest that the Agency adopt the Keystone Report recommendation of 
restricted work which requires an employer to record if the employee 
is (1) unable to perform the task he or she was engaged in at the 
time of injury or onset of illness (task includes all facets of the 
assignment the employee was to perform); or (2) unable to perform 
any activity that he or she would have performed during the week 
(Ex. 15: 418).

    Other commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For 
example, the United Brotherhood of Carpenters (UBC) Health & Safety 
Fund of North America argued in favor of a broader definition to avoid 
this problem:

    [t]he majority of workers represented by the UBC, such as 
carpenters and millwrights, routinely perform a wide variety of 
tasks during their normal workdays in either construction or 
industrial settings. Therefore, OSHA should not limit the 
classification of ``restricted work activity'' to either ``the task 
he or she was engaged in at the time of the injury'' or his or her 
daily work activity (daily work activity includes all assignments 
the employee was expected to perform on the day of the injury or 
onset of illness)'' as proposed. The UBC feels that the current 
proposal would allow for manipulation of the records and will lead 
to serious under reporting. Many workplaces have armies of ``walking 
wounded'' rather than reporting lost or restricted work activity. 
OSHA should at the very least adopt the position of the Keystone 
Report which recommended that restricted work activity should be 
recorded if the employee is ``(1) unable to perform the task he or 
she was engaged in at the time of the injury or onset of illness, or 
(2) unable to perform any activity that he or she would have 
performed during the week.'' The UBC believes that the best 
definition of restricted work activity would be any illness or 
injury which inhibits, interferes with, or prevents a worker from 
performing any or all of the functions considered to be a normal 
part of his or her trade or occupation as defined in the applicable 
job description (Ex. 20).

Do Not Count Incidents Involving Only One or a Few Days as Restricted 
Work
    A number of commenters recommended that restricted work activity 
involving only the day of injury/illness onset should not trigger an 
OSHA recordable case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 
364, 374, 391). Typical of these comments is one from the Society of 
the Plastics Industry, Inc.:

    [e]mployers have had problems with OSHA's definition of 
restricted work activity because OSHA's interpretation that having 
any work restriction, even one which lasts only for the remainder of 
the shift and which imposes no significant limitations on the 
employee's ability to perform his or her job, makes a case 
recordable. OSHA should adopt the administratively simple and 
common-sense rule that restricted work activity on the day of the 
case report does not make the case recordable. . . . The definition 
of ``restricted work activity'' should be clarified to state that 
the criteria apply only to days following the day of injury or onset 
of the illness. An employee's inability to work a full shift on the 
actual date of injury or onset of illness should not require 
recording as a restricted work case. As noted above, because OSHA's 
interpretation that having any work restriction, even one which 
lasts only for the remainder of the shift and which imposes no 
significant limitations on the employee's ability to perform his or 
her job, makes a case recordable, many non-serious, non-disabling 
cases are now recorded. Cases which do not otherwise meet the 
recordability criteria should not be recordable. Therefore, as 
recommended above, OSHA should eliminate the current requirement to 
record cases in which restricted work activity occurs only on the 
day of the case report (Ex. 15: 364).

    The Kodak Company urged OSHA not to count cases involving 
restrictions lasting only for three days as restricted work cases on 
the grounds that such cases are ``minor'': ``Restricted work activity 
allows employers and employees to remain at work. This is a win-win 
situation for both. Kodak suggests restricted work activity be counted 
only if the restriction lasts

[[Page 5978]]

longer than 3 working days. Hence, only serious cases would be 
recorded'' (Ex. 15: 322).
Adopt the Proposed Approach
    A large number of commenters supported OSHA's proposed definition, 
however (see, e.g., Exs. 27, 15: 26, 61, 70, 133, 159, 171, 185, 199, 
204, 242, 263, 269, 270, 272, 283, 303, 305, 307, 317, 318, 324, 334, 
347, 351, 373, 375, 377, 378, 384, 390, 392, 405, 409, 413, 425, 430). 
Typical of these were comments from the New Jersey Department of Labor 
(Ex. 15: 70), which commented:

    [p]roviding a clear definition of what constitutes restricted 
work and an item to indicate that an injured employee has been 
shifted to restricted work activity should improve the accuracy and 
completeness of case reporting. Identifying the actual number of 
cases in which employees are shifted to alternate work, which are 
thought to be under reported, and adding the date when the employee 
returned to his/her usual work will help to assess the impact of 
these incidents.

    The American Petroleum Institute, which believed that the proposed 
definition would be easy to interpret and would therefore improve 
recording consistency, stated: ``API strongly supports OSHA's proposed 
definition of restricted activity. Because it is much more logical and 
easy to understand than the current definition, API believes it will 
lead to greater consistency'' (Ex. 15: 375).
Use Different Triggers Than Those Proposed
    The Commonwealth Edison Company recommended that restricted work be 
defined only in terms of the hours the employee is able to work, not 
the functions the employee is able to perform:

    [C]omEd disagrees with OSHA on its definition of ``restricted 
work activity''. We propose that OSHA consider that restricted work 
activity simply state ``Restricted work activity means the worker, 
due to his or her injury or illness, is unable to work a full 
shift.'' OSHA's proposed definition of restricted work activity is 
even more confusing than the current one. ComEd's proposed 
definition will allow quantifiable, direct cost tracking for this 
category of injury or illness. Workers will more than likely have 
some kind of meaningful work waiting for them if the injury is not 
disabling. If he or she is able to work the required normal shift 
hours, don't count the case as restricted. If they miss the entire 
shift, count is as a day away from work. If they miss part of the 
shift, count it as restricted (Ex. 15: 277).

    Two commenters suggested that a case should only be considered 
restricted when it involves both medical treatment and work 
restrictions (Exs. 15: 9, 348). For example, the E. I. du Pont de 
Nemours & Company (DuPont) said that the

    ``Restricted Work Activity'' definition is a definite 
improvement over the current one. Suggest making treatment AND 
restriction the criteria. An insignificant injury can result in 
being told not to climb ladders. This does not negate the ability to 
do the job; it just limits the job to levels where ladder climbing 
is not required. * * * Restricted work activity is more dependent on 
timing and job than on injury severity. It doesn't necessarily focus 
on hazardous conditions. Certainly the definition in the proposed 
guidelines is far more specific and appropriate than the current 
one. We suggest consideration be given to dropping the Restricted 
category where medical treatment is not also given. For example, a 
slight muscle strain will result in advice not to climb ladders. The 
case would be in the restricted category although the treatment, if 
any, would be at the first aid level. Injury severity is the 
equivalent of a cut finger'' (Ex. 15: 348).

    Other comments sought a broader, more inclusive definition of 
restricted work, one that relies on job descriptions (see, e.g., Exs. 
15: 41, 62, 198, 426). For example, Robert L. Rowan, Jr. stated:

    [t]he definition of ``restricted work activity'' also concerns 
me and I believe it is unsuitable. The definition refers to an 
employee who is not capable of performing at full capacity for a 
full shift the ``task'' that he or she was engaged in at the time of 
the injury or onset of illness. The definition should include ``any 
and all tasks'' within the employee's clearly defined job 
description'' (Ex. 15: 62).

    The Maine Department of Labor, however, preferred the former rule's 
interpretation, with some modifications:

    [w]e agree that there should be no mention of ``normal'' duties 
in the definition. Include: temporary transfer to a position or 
department other than the position or department the worker was 
working at when he/she was injured. Some of these can be detected on 
payroll records; only being able to work part of their workday. Time 
forms could raise suspicion here; a health care provider puts the 
person on written restrictions unless the employer can show that the 
restrictions listed do not impact the employee's ability to do his 
or her scheduled job during the time period of the restrictions. 
Keep a copy of the restrictions in the file. The doctor's name on 
the OSHA 301 serves as another possible check (Ex. 15:41).

Miscellaneous Comments and Questions
    There were also a variety of miscellaneous comments and questions 
about the proposed approach to the recording of restricted work cases. 
For example, Bob Evans Farms suggested that:

    [w]hen considering this proposal, OSHA needs to keep in mind the 
special nature of the restaurant business. It is not uncommon for a 
cook to cut himself or herself, apply a Band-Aid, and then 
temporarily be reassigned to janitorial work for a day or two to 
keep the cut dry while it heals. This could be considered work duty 
modification and would then need to be reported to OSHA. As you can 
see, this type of minor occurrence would clog the system with 
needless paper (Exs. 15: 3, 4, 5, 6).

    Phibro-Tech, Inc. offered this comment:

    [a] factory employee who normally performs heavy labor may be 
assigned office work as a restricted work activity, and may not 
actually be contributing anything meaningful to the job. Will 
employers be required to limit what is considered ``light duty'' 
tasks? Will there be directives as to when an employee should really 
be off work or when he can be on ``light duty''? Occupational 
physicians all have different opinions as to when an employee can 
return for light or full duty. It would be helpful to have more 
direction on this issue so employees aren't sent back to work too 
soon or kept off on lost time too long (Ex. 15: 35).

    The law firm of Constangy, Brooks & Smith, LLC, asked, ``[w]ould a 
restriction of piece rate or production rate be considered restricted 
duty under the proposed definition even though it is not considered 
restricted duty under the present guidelines?'' (Ex. 15: 428). Miller 
Brewing Company added, ``[w]ould also recommend that OSHA attempt to 
clarify whether a treating physician's [non-specific] return to work 
instructions such as ``8 hours only,'' ``self restrict as needed,'' and 
``work at your own pace'' will constitute restricted work activity 
under the proposed recordkeeping rule'' (Ex. 15: 442).
    The Pacific Maritime Association stated:

    This is another example where the ILWU/PMA workforce does not 
fit into the proposed recordkeeping system. The regulation as 
written pertains to employers who assign their employees to work 
tasks. As previously mentioned, in our industry it is the employee 
who selects the job they will perform. This dispatch system, or job 
selection process, presents many problems when the maritime industry 
is required to conform to requirements established for traditional 
employee/employer relationships found in general industry. At the 
present time there is no method available to determine why an 
individual longshoreman selects a specific job. Therefore, the 
requirement to identify, track, and record ``restricted work 
activity'' may be impossible to accomplish [in the maritime 
industry] (Ex. 15: 95).

Preventive Job Transfers
    Several commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged 
OSHA to make some accommodation for ``preventive

[[Page 5979]]

transfers'' and medical removals. Many transfers and removals of this 
nature are related to work-related musculoskeletal disorders and are 
used to prevent minor musculoskeletal soreness from becoming worse. The 
following comments are representative of the views of these commenters. 
The Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) coalition 
commented:

    [t]his definition [the proposed definition of restricted work] 
is overly broad, penalizes employers who have a light duty program 
in place, and fails to take into account that (1) today's employees 
increasingly are cross trained and perform varied tasks, and (2) the 
ability of an employee to perform alternative meaningful work 
mitigates the seriousness of the inability to perform work in the 
two categories set out in the definition as proposed. The ODNSS 
Coalition recommends curing these defects by adding the following 
proviso to the proposed definition: ``The case should be recorded as 
a restricted work case UNLESS the restrictive work activity is 
undertaken to relieve minor soreness experienced by a newly hired or 
transferred employee during a break-in phase to prevent the soreness 
from worsening, or the employee otherwise is able to perform other 
existing full-time duties.'' The appropriate nature of the 
recommended proviso is underscored by a baseball analogy where the 
right fielder and the center fielder change positions. They both 
continue to play on the same team and make substantial 
contributions, but the strain on the new right fielder is less 
because he doesn't have as much ground to cover (Ex. 15: 406).

    The National Association of Manufacturers (NAM) summed up its views 
as follows:

    [a] preventive or prophylactic measure such as medical removal 
(as opposed to a restorative or curative measure) is not and should 
not be deemed medical treatment, a job transfer or restricted 
activity for purposes of recordability, in the absence of a 
substantial impairment of a bodily function (Ex. 25).

    Although Organization Resource Counselors (ORC) generally endorsed 
the proposed approach to the treatment of restricted work cases, it did 
express concern about how medical removal cases would be treated under 
the proposed definition:

    [t]he proposed definition of restricted work is a significant 
improvement over the current [former] one, which was considered by 
many employers to be unfair and confusing. It is no secret that many 
employers did not understand the current restricted work rules and, 
as a result, did not follow them consistently. Additionally, the 
[proposed] elimination of the count of restricted workdays is 
appropriate and is a recognition by OSHA that the recording of this 
count is of little value to either the Agency or employers in 
program evaluation or program development. * * * Additionally, 
requirements for the recording of either voluntary or mandatory 
medical removals where no additional symptoms are present are 
examples of appropriate action taken by employers to prevent harm to 
employees and not of a recordable injury or illness. * * *'' (Ex. 
15: 358).

Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's 
Reasons for Adopting Them
    Paragraph 1904.7(b)(4) contains the restricted work and job 
transfer provisions of the final rule. These provisions clarify the 
definition of restricted work in light of the comments received and 
continue, with a few exceptions, most of the former rule's requirements 
with regard to these kinds of cases. OSHA finds, based on a review of 
the record, that these provisions of the final rule will increase 
awareness among employers of the importance of recording restricted 
work activity and job transfer cases and make the recordkeeping system 
more accurate and the process more efficient.
    OSHA believes that it is even more important today than formerly 
that the definition of restricted work included in the final rule be 
clear and widely understood, because employers have recently been 
relying on restricted work (or ``light duty'') with increasing 
frequency, largely in an effort to encourage injured or ill employees 
to return to work as soon as possible. According to BLS data, this 
category of cases has grown by nearly 70% in the last six years. In 
1992, for example, 9% of all injuries and illnesses (or a total of 
622,300 cases) recorded as lost workday cases were classified in this 
way solely because of restricted work days, while in 1998, nearly 18% 
of all injury and illness cases (or a total of 1,050,200 cases) were 
recorded as lost workday cases only because they involved restricted 
work [BLS Press Release 99-358, 12-16-99). The return-to-work programs 
increasingly being relied on by employers (often at the recommendation 
of their workers' compensation insurers) are designed to prevent 
exacerbation of, or to allow recuperation from, the injury or illness, 
rehabilitate employees more effectively, reintegrate injured or ill 
workers into the workplace more rapidly, limit workers' compensation 
costs, and retain productive workers. In addition, many employees are 
eager to accept restricted work when it is available and prefer 
returning to work to recuperating at home.
    The final rule's requirements in paragraph 1904.10(b)(4) of the 
final rule state:

    (4) How do I record a work-related injury or illness that 
involves restricted work or job transfer?
    When an injury or illness involves restricted work or job 
transfer but does not involve death or days away from work, you must 
record the injury or illness on the OSHA 300 Log by placing a check 
mark in the space for job transfer or restricted work and entering 
the number of restricted or transferred days in the restricted work 
column.
    (i) How do I decide if the injury or illness resulted in 
restricted work?
    Restricted work occurs when, as the result of a work-related 
injury or illness:
    (A) You keep the employee from performing one or more of the 
routine functions of his or her job, or from working the full 
workday that he or she would otherwise have been scheduled to work; 
or
    (B) A physician or other licensed health care professional 
recommends that the employee not perform one or more of the routine 
functions of his or her job, or not work the full workday that he or 
she would otherwise have been scheduled to work.
    (ii) What is meant by ``routine functions''?
    For recordkeeping purposes, an employee's routine functions are 
those work activities the employee regularly performs at least once 
per week.
    (iii) Do I have to record restricted work or job transfer if it 
applies only to the day on which the injury occurred or the illness 
began?
    No. You do not have to record restricted work or job transfers 
if you, or the physician or other licensed health care professional, 
impose the restriction or transfer only for the day on which the 
injury occurred or the illness began.
    (iv) If you or a physician or other licensed health care 
professional recommends a work restriction, is the injury or illness 
automatically recordable as a ``restricted work'' case?
    No. A recommended work restriction is recordable only if it 
affects one or more of the employee's routine job functions. To 
determine whether this is the case, you must evaluate the 
restriction in light of the routine functions of the injured or ill 
employee's job. If the restriction from you or the physician or 
other licensed health care professional keeps the employee from 
performing one or more of his or her routine job functions, or from 
working the full workday the injured or ill employee would otherwise 
have worked, the employee's work has been restricted and you must 
record the case.
    (v) How do I record a case where the worker works only for a 
partial work shift because of a work-related injury or illness?
    A partial day of work is recorded as a day of job transfer or 
restriction for recordkeeping purposes, except for the day on which 
the injury occurred or the illness began.
    (vi) If the injured or ill worker produces fewer goods or 
services than he or she would have produced prior to the injury or 
illness but otherwise performs all of the activities of his or her 
work, is the case considered a restricted work case?
    No. The case is considered restricted work only if the worker 
does not perform all of the

[[Page 5980]]

routine functions of his or her job or does not work the full shift 
that he or she would otherwise have worked.
    (vii) How do I handle vague restrictions from a physician or 
other licensed health care professional, such as that the employee 
engage only in ``light duty'' or ``take it easy for a week''?
    If you are not clear about a physician or other licensed health 
care professional's recommendation, you may ask that person whether 
the employee can perform all of his or her routine job functions and 
work all of his or her normally assigned work shift. If the answer 
to both of these questions is ``Yes,'' then the case does not 
involve a work restriction and does not have to be recorded as such. 
If the answer to one or both of these questions is ``No,'' the case 
involves restricted work and must be recorded as a restricted work 
case. If you are unable to obtain this additional information from 
the physician or other licensed health care professional who 
recommended the restriction, record the injury or illness as a case 
involving job transfer or restricted work.
    (viii) What do I do if a physician or other licensed health care 
professional recommends a job restriction meeting OSHA's definition 
but the employee does all of his or her routine job functions 
anyway?
    You must record the injury or illness on the OSHA 300 Log as a 
restricted work case. If a physician or other licensed health care 
professional recommends a job restriction, you should ensure that 
the employee complies with that restriction. If you receive 
recommendations from two or more physicians or other licensed health 
care providers, you may make a decision as to which recommendation 
is the most authoritative, and record the case based upon that 
recommendation.

    The concept of restricted work activity in the final rule falls 
somewhere between the commenters' broadest and narrowest definitions of 
the work activities that should be considered in determining whether a 
particular case involves work restriction. The final rule's concept of 
restricted work is based both on the type of work activities the 
injured or ill worker is able to perform and the length of time the 
employee is able to perform these activities. The term ``routine 
functions of the job'' in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii) 
clarifies that OSHA considers an employee who is unable, because of a 
work-related injury or illness, to perform the job activities he or she 
usually performs to be restricted in the work he or she may perform. 
Use of the term ``routine functions of the job'' should eliminate the 
concern of some commenters who read the proposed definition as meaning 
that an employee had to be able to perform every possible work 
activity, including those that are highly unusual or performed only 
very rarely, in order for the employer to avoid recording the case as a 
restricted work case (see, e.g., Exs. 15: 80, 247). In other words, 
OSHA agrees that it makes little sense to consider an employee who is 
prevented by an injury or illness from performing a particular job 
function he or she never or rarely performed to be restricted (see, 
e.g., Exs. 15: 80, 247). For example, OSHA finds that, for the purposes 
of recordkeeping, an activity that is performed only once per month is 
not performed ``regularly.'' This approach is consistent with OSHA 
interpretations under the former rule. Limiting the definition to 
``essential functions,'' the ADA term recommended by several commenters 
(see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431), would be 
inappropriate, because OSHA needs information on all restricted work 
cases, not just those that interfere with the essential functions of 
the job (29 U.S.C. 657(c)(2)).
    On the other hand, OSHA agrees with those commenters who argued 
that the proposed definition, to limit the definition of restricted 
activity to the specific functions or tasks the employee was engaged in 
on the day of injury or onset of illness would be unsatisfactory, 
because doing so could fail to capture activities that an employee 
regularly performs (see, e.g., Exs. 20; 15: 17, 129, 380, 418). In the 
final rule, OSHA has decided that defining restricted work as work that 
an employee would regularly have performed at least once per week is 
appropriate, i.e., OSHA believes that the range of activities captured 
by this interval of time will generally reflect the range of an 
employee's usual work activities. Activities performed less frequently 
than once per week reflect more uncommon work activities that are not 
considered routine duties for the purposes of this rule. However, the 
final rule does not rely on the duties the employee actually performed 
during the week when he or she was injured or became ill. Thus, even if 
an employee did not perform the activity within the last week, but 
usually performs the activity once a week, the activity will be 
included. OSHA believes that this change in definition will foster 
greater acceptance of the concept of restricted work among employers 
and employees because of its common sense approach.
    Use of the term ``partial work shift'' in paragraph 1904.7(b)(4)(v) 
covers restrictions on the amount of time an employee is permitted to 
work because of the injury or illness. This interpretation of 
restricted work was not generally disputed by commenters, although some 
argued that the restriction on the hours worked should last for a 
specific number of days before the case becomes recordable as a 
restricted work case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 
364, 374, 391).
    The final rule's restricted work provisions also clarify that work 
restriction must be imposed by the employer or be recommended by a 
health care professional before the case is recordable. Only the 
employer has the ultimate authority to restrict an employee's work, so 
the definition is clear that, although a health care professional may 
recommend the restriction, the employer makes the final determination 
of whether or not the health care professional's recommended 
restriction involves the employee's routine functions. Restricted work 
assignments may involve several steps: an HCP's recommendation, or 
employer's determination to restrict the employee's work, the employers 
analysis of jobs to determine whether a suitable job is available, and 
assignment of the employee to that job. All such restricted work cases 
are recordable, even if the health care professional allows some 
discretion in defining the type or duration of the restriction, an 
occurrence noted by one commenter (Ex. 15:442). However, the final 
rule's provisions make it clear that the employee is not the person 
making the determination about being placed on restricted work, as one 
commenter (Ex. 15: 97) feared.
    A number of commenters suggested that OSHA cease to require the 
recording of restricted work cases entirely (see, e.g., Exs. 15: 119, 
427). However, the Congress has directed that the recordkeeping system 
capture data on non-minor work-related injuries and illnesses and 
specifically on restricted work cases, both so that the national 
statistics on such injuries and illnesses will be complete and so that 
links between the causes and contributing factors to such injuries and 
illnesses will be identified (29 U.S.C. 651(b)). Days away and 
restricted work/job transfer cases together constitute two of the most 
important kinds of job-related injuries and illnesses, and it would be 
inappropriate not to record these serious cases. OSHA also cannot 
narrow the definition of restricted work to those cases where the 
employee is at work but cannot do productive work, as several 
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because 
the Congress clearly intended that workers whose work-related injuries 
and illnesses were so severe as to prevent them from doing their former 
work or from working for a full shift had experienced an injury or 
illness that was non-minor and thus worthy of being recorded. OSHA does 
not believe that requiring employers to record such injuries and 
illnesses as

[[Page 5981]]

restricted work cases will in any way discourage the use of restricted 
work or return-to-work programs, and the marked shift in the number of 
restricted work cases reported to the BLS in the last few years bears 
this out. It would also not be appropriate for OSHA to require that 
employers only record as restricted work cases those cases in which the 
injured or ill worker requires medical treatment and is placed on 
restricted work, as some commenters suggested (see, e.g., Exs. 15: 9, 
348). The OSH Act clearly requires the recording of all work-related 
cases that require either medical treatment or restricted work.
    Under the final rule, employers are not required to record a case 
as a restricted work case if the restriction is imposed on the employee 
only for the day of the injury or onset of illness. OSHA thus agrees 
with a number of commenters (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 
198, 364, 374, 391) that restricted activity only on the day the injury 
occurred or the illness began does not justify recording. This 
represents a change in the treatment of restricted work cases from 
OSHA's practice under the former rule. OSHA has made this change to 
bring the recording of restricted work cases into line with that for 
days away cases: under the final rule, employers are not required to 
record as days away or restricted work cases those injuries and 
illnesses that result in time away or time on restriction or job 
transfer lasting only for the day of injury of illness onset.
    Several commenters recommended that cases involving medical removal 
under the lead or cadmium standards or cases involving ``voluntary'' 
preventive actions, such as cases involving job transfer or restricted 
work activity, not be considered recordable under the final rule; these 
participants argued that requiring employers to record voluntary 
transfers or removals would create a disincentive for employers to take 
these protective actions (see, e.g., Exs. 25, 15: 69, 156, 358, 406). 
Under the final rule (see section 1904.9), mandated removals made in 
accordance with an OSHA health standard must be recorded either as days 
away from work or as days of restricted work activity, depending on the 
specific action an employer takes. Since these actions are mandated, no 
disincentive to record is created by this recordkeeping rule.
    Some commenters, however, urged OSHA to make an exception from the 
recording requirements for cases where the employer voluntarily, or for 
preventive purposes, temporarily transfers an employee to another job 
or restricts an employee's work activities. OSHA does not believe that 
this concept is relevant to the recordkeeping rule, for the following 
reasons. Transfers or restrictions taken before the employee has 
experienced an injury or illness do not meet the first recording 
requirement of the recordkeeping rule, i.e., that a work-related injury 
or illness must have occurred for recording to be considered at all. A 
truly preventive medical treatment, for example, would be a tetanus 
vaccination administered routinely to an outdoor worker. However, 
transfers or restrictions whose purpose is to allow an employee to 
recover from an injury or illness as well as to keep the injury or 
illness from becoming worse are recordable because they involve 
restriction or work transfer caused by the injury or illness. All 
restricted work cases and job transfer cases that result from an injury 
or illness that is work-related are recordable on the employer's Log.
    As the regulatory text for paragraph (b)(4) makes clear, the final 
rule's requirements for the recording of restricted work cases are 
similar in many ways to those pertaining to restricted work under the 
former rule. First, like the former rule, the final rule only requires 
employers to record as restricted work cases those cases in which 
restrictions are imposed or recommended as a result of a work-related 
injury or illness. A work restriction that is made for another reason, 
such as to meet reduced production demands, is not a recordable 
restricted work case. For example, an employer might ``restrict'' 
employees from entering the area in which a toxic chemical spill has 
occurred or make an accommodation for an employee who is disabled as a 
result of a non-work-related injury or illness. These cases would not 
be recordable as restricted work cases because they are not associated 
with a work-related injury or illness. However, if an employee has a 
work-related injury or illness, and that employee's work is restricted 
by the employer to prevent exacerbation of, or to allow recuperation 
from, that injury or illness, the case is recordable as a restricted 
work case because the restriction was necessitated by the work-related 
injury or illness. In some cases, there may be more than one reason for 
imposing or recommending a work restriction, e.g., to prevent an injury 
or illness from becoming worse or to prevent entry into a contaminated 
area. In such cases, if the employee's work-related illness or injury 
played any role in the restriction, OSHA considers the case to be a 
restricted work case.
    Second, for the definition of restricted work to apply, the work 
restriction must be decided on by the employer, based on his or her 
best judgment or on the recommendation of a physician or other licensed 
health care professional. If a work restriction is not followed or 
implemented by the employee, the injury or illness must nevertheless be 
recorded on the Log as a restricted case. This was also the case under 
the former rule.
    Third, like the former rule, the final rule's definition of 
restricted work relies on two components: whether the employee is able 
to perform the duties of his or her pre-injury job, and whether the 
employee is able to perform those duties for the same period of time as 
before.
    The principal differences between the final and former rules' 
concept of restricted work cases are these: (1) the final rule permits 
employers to cap the total number of restricted work days for a 
particular case at 180 days, while the former rule required all 
restricted days for a given case to be recorded; (2) the final rule 
does not require employers to count the restriction of an employee's 
duties on the day the injury occurred or the illness began as 
restricted work, providing that the day the incident occurred is the 
only day on which work is restricted; and (3) the final rule defines 
work as restricted if the injured or ill employee is restricted from 
performing any job activity the employee would have regularly performed 
at least once per week before the injury or illness, while the former 
rule counted work as restricted if the employee was restricted in 
performing any activity he or she would have performed at least once 
per year.
    In all other respects, the final rule continues to treat restricted 
work and job transfer cases in the same manner as they were treated 
under the former rule, including the counting of restricted days. 
Paragraph 1904.7(b)(4)(xi) requires the employer to count restricted 
days using the same rules as those for counting days away from work, 
using Sec. 1904.7(b)(3)(i) to (viii), with one exception. Like the 
former rule, the final rule allows the employer to stop counting 
restricted days if the employee's job has been permanently modified in 
a manner that eliminates the routine functions the employee has been 
restricted from performing. Examples of permanent modifications would 
include reassigning an employee with a respiratory allergy to a job 
where such allergens are not present, or adding a mechanical assist to 
a job that formerly required manual lifting. To make it clear that 
employers may stop

[[Page 5982]]

counting restricted days when a job has been permanently changed, but 
not to eliminate the count of restricted work altogether, the rule 
makes it clear that at least one restricted workday must be counted, 
even if the restriction is imposed immediately. A discussion of the 
desirability of counting days of restricted work and job transfer at 
all is included in the explanation for the OSHA 300 form and the 
Sec. 1904.29 requirements. The revisions to this category of cases that 
have been made in the final rule reflect the views of commenters, 
suggestions made by the Keystone report (Ex. 5), and OSHA's experience 
in enforcing the former recordkeeping rule.
Paragraph 1904.7(b)(5) Medical Treatment Beyond First Aid
    The definitions of first aid and medical treatment have been 
central to the OSHA recordkeeping scheme since 1971, when the Agency's 
first recordkeeping rule was issued. Sections 8(c)(2) and 24(a) of the 
OSH Act specifically require employers to record all injuries and 
illnesses other than those ``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.'' Many 
injuries and illnesses sustained at work do not result in death, loss 
of consciousness, days away from work or restricted work or job 
transfer. Accordingly, the first aid and medical treatment criteria may 
be the criteria most frequently evaluated by employers when deciding 
whether a given work-related injury must be recorded.
    In the past, OSHA has not interpreted the distinction made by the 
Act between minor (i.e., first aid only) injuries and non-minor 
injuries as applying to occupational illnesses, and employers have 
therefore been required to record all occupational illnesses, 
regardless of severity. As a result of this final rule, OSHA will now 
apply the same recordability criteria to both injuries and illnesses 
(see the discussion of this issue in the Legal Authority section of 
this preamble). The Agency believes that doing so will simplify the 
decision-making process that employers carry out when determining which 
work-related injuries and illnesses to record and will also result in 
more complete data on occupational illness, because employers will know 
that they must record these cases when they result in medical treatment 
beyond first aid, regardless of whether or not a physician or other 
licensed health care professional has made a diagnosis.
    The former recordkeeping rule defined first aid as ``any one-time 
treatment and any follow-up visit for the purpose of observation, of 
minor scratches, cuts, burns, splinters, and so forth, which do not 
ordinarily require medical care.'' Medical treatment was formerly 
defined as ``treatment administered by a physician or by registered 
professional personnel under the standing orders of a physician.''
    To help employers determine the recordability of a given injury, 
the Recordkeeping Guidelines, issued by the Bureau of Labor Statistics 
(BLS) in 1986, provided numerous examples of medical treatments and of 
first aid treatments (Ex. 2). These examples were published as mutually 
exclusive lists, i.e., a treatment listed as a medical treatment did 
not also appear on the first-aid list. Thus, for example, a positive x-
ray diagnosis (fractures, broken bones, etc.) was included among the 
treatments generally considered medical treatment, while a negative x-
ray diagnosis (showing no fractures) was generally considered first 
aid. Despite the guidance provided by the Guidelines, OSHA continued to 
receive requests from employers for interpretations of the 
recordability of specific cases, and a large number of letters of 
interpretation addressing the distinction between first aid and medical 
treatment have been issued. The following sections discuss the 
definitions of medical treatment and first aid proposed by OSHA, the 
comments received in response to the proposal, and the definition of 
medical treatment that OSHA has decided to include in the final rule.
    In the proposed rule, OSHA presented a simplified approach: to 
define as first aid anything on a list of first aid treatments, and to 
define as medical treatment any treatment not on that list. 
Specifically, medical treatment was defined as ``any medical cure or 
treatment beyond first aid'' (61 FR 4059).
    The proposal contained a comprehensive list of all treatments that 
would be considered ``first aid'' regardless of the provider:
    (1) Visit(s) to a health care provider limited to observation
    (2) Diagnostic procedures, including the use of prescription 
medications solely for diagnostic purposes (e.g. eye drops to dilate 
pupils)
    (3) Use of nonprescription medications, including antiseptics
    (4) Simple administration of oxygen
    (5) Administration of tetanus or diphtheria shot(s) or booster(s)
    (6) Cleaning, flushing or soaking wounds on skin surface
    (7) Use of wound coverings such as bandages, gauze pads, etc.
    (8) Use of any hot/cold therapy (e.g. compresses, soaking, 
whirlpools, non-prescription skin creams/lotions for local relief, 
etc.) except for musculoskeletal disorders (see Mandatory Appendix B to 
Part 1904)
    (9) Use of any totally non-rigid, non-immobilizing means of support 
(e.g. elastic bandages)
    (10) Drilling of a nail to relieve pressure for subungual hematoma
    (11) Use of eye patches
    (12) Removal of foreign bodies not embedded in the eye if only 
irrigation or removal with a cotton swab is required
    (13) Removal of splinters or foreign material from areas other than 
the eyes by irrigation, tweezers, cotton swabs or other simple means 
(61 FR 4059)
    OSHA also solicited comment on three specific definitional 
questions:
    (A) Should any treatments on the proposed first aid list be 
excluded and should any treatments be added?
    (B) Should a list of medical treatments also be provided? Which 
treatments?
    (C) Should simple administration of oxygen be defined to exclude 
more severe procedures such as Intermittent Positive Pressure Breathing 
(IPPB)? If so, how?

    OSHA received many comments on the general approach taken in the 
proposal, i.e., that employers rely on a comprehensive list of first 
aid treatment and define any treatment not on that list as medical 
treatment. The Agency also received many comments on the individual 
items on the proposed first aid list. The following discussion 
addresses comments on the general approach adopted in the final rule 
and then deals with comments on specific items and OSHA's responses to 
each issue.
    A large number of commenters agreed with OSHA's proposal to rely on 
a finite list of treatments considered first aid and to consider all 
other treatments medical treatment (see, e.g., Exs. 15: 9, 13, 26, 27, 
74, 76, 87, 95, 122, 127, 156, 163, 185, 188, 199, 204, 218, 242, 263, 
269, 270, 283, 297, 324, 332, 338, 347, 357, 359, 377, 378, 385, 386, 
387, 395, 397, 405, 407, 414, 434). Several commenters wanted no change 
to the proposal (see, e.g., Exs. 15: 26, 76, 204, 385, 378), while 
others agreed with the general approach but stated that the first aid 
list should be more comprehensive (see, e.g., Exs. 15: 199, 332, 338, 
357, 386, 387).
    Commenters supported the proposed approach for a variety of 
reasons. For example, some stated that a finite list

[[Page 5983]]

would improve the clarity of the definition, reduce confusion for 
employers, and reduce inaccuracy in the data (see, e.g., Exs. 15: 87, 
95, 122, 127, 163, 185, 188, 395, 338, 242, 270, 269, 263, 347, 377, 
386). The statement of the American Iron and Steel Institute 
exemplified these comments:

    Consistent with its statutory mandate, OSHA's proposal would 
also require the recording of all work-related injuries and 
illnesses that result in medical treatment beyond first aid. The 
expanded and finite list of treatments that constitute first aid 
would clarify the task of deciding what to record, because any 
treatment that does not appear on this list will be considered a 
medical treatment. (Ex. 15: 395)

    The Ford Motor Company agreed, stating:

    Ford supports that the definition of first aid be modified to 
consist of a comprehensive list of treatments. Treatments not found 
on the first aid list would be considered medical treatment for 
recordkeeping purposes. Assuming that the list will be 
comprehensive, it will reduce confusion, lead to consistent 
recordkeeping, and greatly simplify the decision making process (Ex. 
15: 347).

    Some commenters stated that the proposed approach would be simpler 
for employers, generate more consistent records, and facilitate better 
comparisons of injury and illness data over time (see, e.g., Exs. 15: 
13, 122, 127, 242, 270, 269, 263, 283, 297, 347, 359, 377, 405, 407). 
According to the Southern Nuclear Operating Company: ``Providing a 
comprehensive list of all first-aid treatments will remove the current 
ambiguity in deciding if a case involves first aid only or if it is 
medical treatment. This should provide more consistent recordkeeping 
and allow for more meaningful comparisons of accident histories'' (Ex. 
15: 242, p. 2).
    A number of commenters, however, disagreed that defining first aid 
by listing first aid treatments was appropriate (see, e.g., Exs. 15: 
18, 63, 83, 87, 96, 119, 123, 129, 145, 159, 171, 173, 176, 182, 201, 
225, 229, 247, 260, 262, 265, 272, 281, 303, 307, 308, 335, 337, 338, 
341, 348, 349, 357, 364, 375, 380, 382, 389, 396, 401, 413, 418, 430, 
434). Several of these commenters argued that it would not be possible 
to list every first aid treatment (see, e.g., Exs. 15: 225, 335, 337, 
396, 430). Some commenters stated that the proposed approach would not 
provide sufficient clarity, would involve a definition of medical 
treatment that was overly vague, and would not be helpful to employers 
without additional definitions (see, e.g., Exs. 15: 159, 171, 176, 229, 
281, 348, 357, 396). Another group of commenters stated that the 
approach did not provide flexibility to adapt to changing medical 
practice, and would not be capable of responding to changes in 
technology (see, e.g., Exs. 15: 18, 63, 96, 335, 348). The comments of 
the Dow Chemical Corporation are representative of these views:

    Dow believes that OSHA should provide non-exhaustive lists for 
both first aid and medical treatment, rather than defining one 
solely by the exclusion of the other. Dow believes this suggested 
approach is necessary to take into account that these lists cannot 
be comprehensive or all-inclusive as it is impossible to list every 
possible contingency. Moreover, technology is constantly changing 
and cannot be accounted for in a static list. For example, one can 
now obtain Steri-Strips over the counter where previously it would 
have been considered ``medical treatment.'' Since exhaustive lists 
do not allow the flexibility to take these technologies into account 
nor capture every possible situation, much would still be left to 
supposition. By providing an illustrative list for both first aid 
and medical treatment, OSHA would be giving adequate guidance for 
the regulated community. Dow recommends OSHA make this modification 
in the final rule. (Ex. 15: 335)

    A number of commenters urged OSHA to use the definition of medical 
treatment as a way to focus primarily on the seriousness of the injury 
or illness (see, e.g., Exs. 15: 147, 201, 308, 341, 375, 395, 418). For 
example, the American Petroleum Institute remarked ``* * * the 
fundamental issue is the seriousness of the injury or illness, not the 
treatment'' (Ex. 375-A, p. 7). The Caterpillar Corporation provided 
lengthy comments on the definition of medical treatment, including the 
following criticism of the proposed approach:

    Insignificant injuries for which medical treatment is provided 
do not provide valuable information for safety and health analysis. 
This proposal attempts to oversimplify the recordkeeping process 
which will result in many insignificant injuries and illnesses being 
recorded because of the unnecessarily restrictive definitions for 
first aid and medical treatment. The definition and listing of first 
aid cannot be a comprehensive or exclusive listing and definition. 
Medical treatment may be provided for insignificant injuries and 
significant injuries may receive little or no medical treatment. The 
medical treatment process and options are too complicated to be 
adequately described by one list which makes the treatments mutually 
exclusive. OSHA should continue the current practice with lists for 
both first aid and medical treatment. Further, the treatments cannot 
be mutually exclusive since treatment does not necessarily recognize 
the severity of the injury or illness (Ex. 15: 201, p. 4).

    Some commenters who disagreed with the proposed approach provided 
suggestions and alternative definitions. A number of commenters 
suggested that OSHA keep its former definitions of first aid and 
medical treatment (see, e.g., Exs. 15: 83, 119, 123, 129, 145, 225, 
337, 380, 389, 418, 430). Several commenters urged OSHA to update the 
former rule's definitions using the proposed rule's listing of first 
aid treatments (see, e.g., Exs. 15: 83, 380, 418). Other commenters 
urged OSHA not to change the definition in any way because it would 
produce a break in the historical series of occupational injury and 
illness data (see, e.g., Exs. 15: 123, 145, 389).
    Several commenters made suggestions that they believed would 
introduce flexibility into the proposed rule's first aid definition. 
The National Restaurant Association suggested that OSHA add a 
``catchall'' category to the list to include ``any similar type of 
treatment'' (Ex. 15: 96, p. 5). The General Electric Company urged that 
the following language be added: ``Other treatments may be considered 
first aid so long as they are recognized as first aid actions and [are] 
not listed in the definition of medical treatment'' (Ex. 15: 349, p. 
8). Some commenters suggested allowing the health care professional to 
determine whether the activity was properly classified as first aid or 
medical treatment (see, e.g., Exs. 27; 15: 131, 173, 176, 201, 334, 
382, 392, 434). A typical comment along these lines was one from the 
American Forest and Paper Association, which stated that ``* * * we 
believe a qualified health care professional should have the authority 
to determine what is properly characterized as first aid and what 
should be properly characterized as medical treatment'' (Ex. 15:334, p. 
7). Two commenters suggested that the health care professional be 
allowed to decide whether an action constituted first aid or medical 
treatment only if the treatment was not on either the first aid or 
medical treatment lists (see, e.g., Exs. 27; 15: 382, 392, 434).
    One commenter, the American Network of Community Options and 
Resources, supported the development of a finite first aid list, but 
suggested that OSHA define medical treatment as ``any treatment that 
requires professional medical intervention'' (Ex. 15: 393, p. 8).
    A number of commenters agreed with OSHA that the first aid 
definition should focus on the type of treatment given, and not on the 
provider (see, e.g., Exs. 15: 185, 308, 338, 349, 364, 443). Other 
comments argued that a distinction between first aid and medical 
treatment could be made on the basis of the number of times a 
particular treatment had been given. The AFL-CIO expressed a concern 
that, absent some

[[Page 5984]]

consideration of the number of times a treatment was administered, many 
serious injuries and illnesses would no longer be recordable and 
valuable data would be lost. The AFL-CIO stated that longer term 
treatments are more likely than shorter ones to be indicative of 
medical treatment:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. Those conditions 
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of 
wounds would no longer be recordable. The AFL-CIO believes that 
first aid should be limited to one time treatments as is the current 
practice, so that serious conditions which require multiple 
treatments are recorded on the log. We strongly urge OSHA to 
maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first 
aid. (Ex. 15: 418).

    Similarly, the TIMEC group of companies believed that any one-time 
treatment should be considered first aid, saying:

    It is also TIMEC's perspective that the exclusion of a ``one 
time medical treatment'' provision from the list of first aids is 
unduly restrictive. Any condition that can be resolved or treated in 
one visit to the doctor should be considered minimal or negligible 
in the context of record keeping for industrial injuries. Under the 
proposed regulation, a condition that results in a one time medical 
treatment theoretically could be given the same weight, in terms of 
OSHA recordability, as a broken or severed limb. This seems unduly 
restrictive. Further, it may inhibit some employers from taking 
injured employees to the doctor in the first instance, in order to 
avoid a ``OSHA recordable injury.'' An employer may otherwise hope 
that the matter will heal itself without infection. This seems 
contrary to the goal of the Occupational Safety and Health Act, to 
ensure appropriate and prompt medical treatment and safety services 
to employees (Ex. 15: 18, p. 2).

    In response to these comments and the evidence in the record of 
this rulemaking, the final rule essentially continues the proposed 
approach, i.e., it includes a list of first-aid treatments that is 
inclusive, and defines as medical treatment any treatment not on that 
list. OSHA recognizes, as several commenters pointed out, that no one 
can predict how medical care will change in the future. However, using 
a finite list of first aid treatments--knowing that it may have to be 
amended later based on new information--helps to limit the need for 
individual judgment about what constitutes first aid treatment. If OSHA 
adopted a more open-ended definition or one that relied on the judgment 
of a health care professional, employers and health care professionals 
would inevitably interpret different cases differently, which would 
compromise the consistency of the data. Under the system adopted in the 
final rule, once the employer has decided that a particular response to 
a work-related illness or injury is in fact treatment, he or she can 
simply turn to the first aid list to determine, without elaborate 
analysis, whether the treatment is first aid and thus not recordable. 
OSHA finds that this simple approach, by providing clear, unambiguous 
guidance, will reduce confusion for employers and improve the accuracy 
and consistency of the data.
    The need for clear and unambiguous guidance is also OSHA's reason 
for not considering treatments from the first aid list to be medical 
treatment if carried out for a lengthier time, as suggested by the AFL-
CIO. If an injured or ill employee is given first-aid treatment, such 
as non-prescription medications (at non-prescription strength), hot or 
cold therapy, massage therapy, or some other treatment on the first aid 
list, the treatment should not be considered medical treatment for OSHA 
recordkeeping purposes, regardless of the length of time or number of 
applications used. This approach will ensure that the recordkeeping 
system excludes truly minor injuries and illnesses, and capture the 
more serious cases that require treatment beyond first aid.
    In the final rule, OSHA has adopted the approach taken in the 
proposal, in a slightly modified form. Under the final rule, employers 
will be able to rely on a single list of 14 first aid treatments. These 
treatments will be considered first aid whether they are provided by a 
lay person or a licensed health care professional. However, the final 
rule includes the following definition of medical treatment; 
``management and care of a patient for the purpose of combating disease 
or disorder;'' this definition excludes observation and counseling, 
diagnostic procedures, and the listed first aid items. OSHA believes 
that providing a definition of medical treatment for recordkeeping 
purposes will help employers who are uncertain about what constitutes 
medical treatment. OSHA will also provide examples of medical 
treatments covered by this definition in compliance assistance 
documents designed to help smaller businesses comply with the rule. The 
following discussion describes the definitions of first aid and medical 
treatment in the final rule and explains the Agency's reasons for 
including each item on the first aid list.
Final Rule
    The final rule, at Sec. 1904.7(b)(5)(i), defines medical treatment 
as the management and care of a patient for the purpose of combating 
disease or disorder. For the purposes of Part 1904, medical treatment 
does not include:

    (A) Visits to a physician or other licensed health care 
professional solely for observation or counseling;
    (B) The conduct of diagnostic procedures, such as x-rays and 
blood tests, including the administration of prescription 
medications used solely for diagnostic purposes (e.g., eye drops to 
dilate pupils); or
    (C) ``first aid'' as defined in paragraph (b)(5)(ii) of this 
section.

    The final rule, at paragraph (b)(5)(ii), defines first aid as 
follows:

    (A) Using a nonprescription medication at nonprescription 
strength (for medications available in both prescription and non-
prescription form, a recommendation by a physician or other licensed 
health care professional to use a non-prescription medication at 
prescription strength is considered medical treatment for 
recordkeeping purposes).
    (B) administering tetanus immunizations (other immunizations, 
such as hepatitis B vaccine or rabies vaccine, are considered 
medical treatment).
    (C) Cleaning, flushing or soaking wounds on the surface of the 
skin;
    (D) Using wound coverings, such as bandages, Band-
Aids, gauze pads, etc.; or using butterfly bandages or 
Steri-Strips (other wound closing devices, such as 
sutures, staples, etc. are considered medical treatment);
    (E) Using hot or cold therapy;
    (F) Using any non-rigid means of support, such as elastic 
bandages, wraps, non-rigid back belts, etc. (devices with rigid 
stays or other systems designed to immobilize parts of the body are 
considered medical treatment for recordkeeping purposes);
    (G) Using temporary immobilization devices while transporting an 
accident victim (e.g. splints, slings, neck collars, back boards, 
etc.)
    (H) Drilling of a fingernail or toenail to relieve pressure, or 
draining fluid from a blister;
    (I) Using eye patches;
    (J) Removing foreign bodies from the eye using only irrigation 
or a cotton swab;
    (K) Removing splinters or foreign material from areas other than 
the eye by irrigation, tweezers, cotton swabs, or other simple 
means;
    (L) Using finger guards;
    (M) Using massages (physical therapy or chiropractic treatment 
are considered medical treatment for recordkeeping purposes);
    (N) Drinking fluids for relief of heat stress.

    This list of first aid treatments is comprehensive, i.e., any 
treatment not included on this list is not considered

[[Page 5985]]

first aid for OSHA recordkeeping purposes. OSHA considers the listed 
treatments to be first aid regardless of the professional 
qualifications of the person providing the treatment; even when these 
treatments are provided by a physician, nurse, or other health care 
professional, they are considered first aid for recordkeeping purposes.
    The definition of medical treatment in the final rule differs both 
from the definition used in the former rule (``treatment administered 
by a physician or by registered professional personnel under the 
standing orders of a physician'') and the proposed definition 
(``medical treatment includes any medical care or treatment beyond 
first aid''). The medical treatment definition in the final rule is 
taken from Dorland's Illustrated Medical Dictionary, and is thus 
consistent with usage in the medical community.
    The three listed exclusions from the definition--visits to a health 
care professional solely for observation or counseling; diagnostic 
procedures, including prescribing or administering of prescription 
medications used solely for diagnostic purposes; and procedures defined 
in the final rule as first aid--clarify the applicability of the 
definition and are designed to help employers in their determinations 
of recordability.
    OSHA received several comments on the proposed definition of 
medical treatment. These dealt primarily with the general approach OSHA 
was proposing, i.e., the use of an all-inclusive list of first aid 
applications, and defining any treatment not on the list as medical 
treatment. The remaining comments (see, e.g., Exs. 15: 87, 171, 173, 
176, 182, 229, 247, 260, 262, 265, 272, 303, 307, 357, 338, 375, 382, 
396, 401, 413) urged OSHA to develop an all-inclusive list of medical 
treatments, to provide examples of some medical treatments, or to 
provide a non-mandatory appendix with such examples.
    OSHA has not adopted the suggestions made by these commenters 
because the Agency finds that simplicity and clarity are best served by 
adopting a single, all-inclusive first aid list and explicitly stating 
that any treatment not on the list is considered, for recordkeeping 
purposes, to be medical treatment. Employers will thus be clear that 
any condition that is treated, or that should have been treated, with a 
treatment not on the first aid list is a recordable injury or illness 
for recordkeeping purposes.
    This simplified approach addresses the concerns expressed by 
several commenters, who emphasized that the distinction between first 
aid and medical treatment made in the Act was meant to ensure that all 
occupational injuries and illnesses that were other than minor be 
captured by OSHA's recordkeeping system but that minor conditions not 
be recorded (see, e.g., Exs. 15-308, 375A, p. 7). As the American 
Petroleum Institute commented (Ex. 375A), ``* * * the fundamental issue 
is the seriousness of the injury or illness, not the treatment.'' OSHA 
concludes, based on its review of the record, that the final rule's 
definitions of medical treatment and first aid will work together to 
achieve Congress's intent, as specified in sections 8 and 24 of the 
Act.
    In making its decisions about the items to be included on the list 
of first aid treatments, OSHA relied on its experience with the former 
rule, the advice of the Agency's occupational medicine and occupational 
nursing staff, and a thorough review of the record comments. In 
general, first aid treatment can be distinguished from medical 
treatment as follows:
     First aid is usually administered after the injury or 
illness occurs and at the location (e.g., workplace) where the injury 
or illness occurred.
     First aid generally consists of one-time or short-term 
treatment.
     First aid treatments are usually simple and require little 
or no technology.
     First aid can be administered by people with little 
training (beyond first aid training) and even by the injured or ill 
person.
     First aid is usually administered to keep the condition 
from worsening, while the injured or ill person is awaiting medical 
treatment.
    The final rule's list of treatments considered first aid is based 
on the record of the rulemaking, OSHA's experience in implementing the 
recordkeeping rule since 1986, a review of the BLS Recordkeeping 
Guidelines, letters of interpretation, and the professional judgment of 
the Agency's occupational physicians and nurses.
Specific Items on the Proposed First Aid List in the NPRM
    Item 1 listed in the NPRM definition of first aid was ``Visit(s) to 
a health care provider limited to observation.'' Two commenters raised 
the issue of counseling with regard to the recording of mental 
disorders (Exs. 15: 226, 395). The American Ambulance Association (AAA) 
stated that: ``This is and should be considered preventive treatment 
aimed at preventing stress-related illnesses. OSHA's adoption of such a 
policy will allow and encourage employers to provide CISD (critical 
incident stress debriefing) counseling'' (Ex. 15: 226, p. 3). The AAA 
recommended that OSHA add preventive counseling, such as critical 
incident stress debriefing, to the first aid listing.
    OSHA agrees that counseling should not be considered medical 
treatment and has expressly excluded it from the definition of medical 
treatment. Counseling is often provided to large groups of workers who 
have been exposed to potentially traumatic events. Counseling may be 
provided on a short-term basis by either a licensed health care 
professional or an unlicensed person with limited training. OSHA 
believes that capturing cases where counseling was the only treatment 
provided do not rise to the level of recording; other counseling cases, 
where prescription medications, days away from work, or restricted work 
activity is involved, would be captured under those criteria.
    The Brookhaven National Laboratory recommended that the first aid 
list include any return visit to evaluate diagnostic decisions (Ex. 15: 
163). Caterpillar, Inc. suggested that visits for observation, testing 
or diagnosis of injuries should also be considered first aid (Ex. 15: 
201). The Chemical Manufacturers Association and Marathon Oil Company 
encouraged OSHA to add visits to the hospital for observation to the 
first-aid list (Exs. 15: 308, 310)
    OSHA generally agrees with these commenters. OSHA believes that 
visits to a health care professional for observation, testing, 
diagnosis, or to evaluate diagnostic decisions should be excluded from 
the definition of medical treatment in the final rule. Visits to a 
hospital, clinic, emergency room, physician's office or other facility 
for the purpose of seeking the advice of a health care professional do 
not themselves constitute treatment. OSHA believes that visits to a 
hospital for observation or counseling are not, of and by themselves, 
medical treatment. Accordingly, the final rule excludes these 
activities from the definition of medical treatment.
    Item 2 listed in the NPRM definition of first aid was ``Diagnostic 
procedures, including the use of prescription medications solely for 
diagnostic purposes (e.g. eye drops to dilate pupils).'' Several 
commenters believed that diagnostic procedures such as x-rays and blood 
tests should not be considered medical treatment (see, e.g., Exs. 15: 
176, 301, 347, 349, 375, 443). For example, General Electric (GE) 
stated ``Diagnostic tests should not be considered medical treatment.

[[Page 5986]]

Considering a diagnostic test to be a recordable injury without 
consideration of the test results is illogical and will establish a 
disincentive to test. GE's position is that a definition of medical 
treatment should also be included in the proposed regulation. Proposed 
wording is as follows: ``Medical treatment'' includes any medical care 
or treatment beyond ``first aid'' and does not include diagnostic 
procedures.''
    Two commenters opposed the exclusion of diagnostic procedures. The 
National Institute for Occupational Safety and Health (NIOSH) said 
``the term diagnostic procedures'' in item #2 is too broad, and the 
example given is vague. These procedures should not be considered first 
aid'' (Ex. 15: 407, p. 17). The United Steelworkers of America stated 
`` * * * delete the use of prescription drugs for diagnostic purposes. 
This will be abused by the company'' (Ex. 15: 429).
    OSHA disagrees with NIOSH that the exclusion for diagnostic 
procedures is overly vague. It is the experience of the Agency that 
employers generally understand the difference between procedures used 
to combat an injury or illness and those used to diagnose or assess an 
injury or illness. In the event that the employer does not have this 
knowledge, he or she may contact the health care professional to obtain 
help with this decision. If the employer does not have this knowledge, 
and elects not to contact the health care professional, OSHA would 
expect the employer to refer to the first aid list and, if the 
procedure is not on the list, to presume that the procedure is medical 
treatment and record the case. OSHA also does not believe that this 
provision will be subject to abuse, because the procedures used for 
diagnosis are generally quite different from those involving treatment.
    OSHA agrees with those commenters who recommended the exclusion of 
diagnostic procedures from the definition of medical treatment. 
Diagnostic procedures are used to determine whether or not an injury or 
illness exists, and do not encompass therapeutic treatment of the 
patient. OSHA has included such procedures on the first aid list in the 
final rule with two examples of diagnostic procedures to help reduce 
confusion about the types of procedures that are excluded.
    Item 3 listed in the NPRM definition of first aid was ``Use of 
nonprescription medications, including antiseptics.'' This issue 
received a large number of comments, more than any other issue related 
to the proposed definition of medical treatment and first aid. Most of 
the comments requested that OSHA consider some uses of prescription 
drugs to be first aid treatment (see, e.g., Exs. 15: 13, 60, 147, 159, 
201, 218, 225, 246, 247, 297, 308, 332, 335, 336, 348, 349, 359, 374, 
375, 386, 387, 395, 405, 414, 430, 434). The most common reason given 
by commenters for treating some prescription drugs as first aid was 
their use when they were given for preventive rather than therapeutic 
intervention. Several commenters asked for a broad exception from 
medical treatment for prescription drugs taken for preventive or 
prophylactic purposes (see, e.g., Exs. 55X 15: 247, 336, 375, 395). For 
example, the American Iron and Steel Institute stated ``AISI encourages 
OSHA to make one change: add the use of prescription medications for 
prophylactic reasons to the first aid list. In many instances, a health 
care professional will prescribe antibiotics as a precaution against a 
possible infection. An employer should not be required to record a 
minor injury solely because a health care professional opted to respond 
aggressively'' (Exs. 15: 395; 55X).
    Several commenters asked for an exception from the medical 
treatment for antibiotics and antiseptics (see, e.g., Exs. 15: 218, 
246, 332, 349, 375, 395, 414, 430). Raytheon Constructors, Inc. 
commented: ``We believe the following treatments should be added [to 
the first aid list]: Application of antiseptics, as often as needed. 
This is for prevention of infection after an injury. Infection is not 
caused by the work environment. Treatment for an infection, such as 
prescription drugs. Again, infection is not the result of the work 
environment'' (Ex. 15: 414).
    A number of employers asked OSHA to define the use of prescription 
drugs for comfort, or to relieve pain or inflammation, as first aid 
(see, e.g., Exs. 15: 60, 147, 201, 225, 247, 308, 348, 349). The 
American Gas Association stated that: we propose that `prescription 
medications for comfort' be added to the list. Medical practitioners 
frequently ``prescribe drugs to comfort people after an injury'' (Ex. 
15: 225), and the Proctor and Gamble Company stated ``[p]rescription 
medication to prevent complications or reduce pain should not be a sole 
basis for recording injuries and illnesses. It is our view that 
preventive measures or action taken to reduce pain should not in 
themselves be the basis for recording'' (Ex. 15: 147). Entergy Services 
Inc. suggested that OSHA include Benadryl shots as first aid since they 
are often given to prevent allergic reactions to insect bites and 
poison oak/ivy/sumac (Ex. 15: 13). The Arizona Public Service Company 
remarked: ``Treatment for bee stings should be addressed (perhaps 
listed on the First Aid list). For instance, if a doctor administers 
the same treatment that an employee could have administered themselves 
it should not be considered medical treatment'' (Ex. 15: 247).
    Another set of comments suggested that prescription medications 
should be considered first aid if they were used only once or for a 
limited period of time. A number of comments requested that OSHA 
continue to treat a single dose of prescription medication as first 
aid. (see, e.g., Exs. 15: 201, 332, 348, 349, 359, 374, 386, 387, 405, 
430, 434). Typical of these comments was one from the National Safety 
Council:

[t]hat administration of a single dose of prescription medication on 
first visit for minor injury or discomfort remain first aid. For 
example, minor muscle aches and pains may occasionally be eased with 
a single dose of 800 mg ibuprofen. This is currently considered 
first aid and should remain so. Another example would be the 
treatment of first degree burns. This is currently considered first 
aid treatment, even though treatment frequently involves the 
application of a single dose of prescription-strength ointment. 
(Ex.15: 359, p. 12)

    Other commenters suggested that prescription medications used for 
24 hours, 48 hours, or five days be considered first aid (see, e.g., 
Exs. 15: 159, 246, 297, 308, 335, 375).
    In the final rule, OSHA has not included prescription medications, 
whether given once or over a longer period of time, in the list of 
first aid treatments. The Agency believes that the use of prescription 
medications is not first aid because prescription medications are 
powerful substances that can only be prescribed by a licensed health 
care professional, and for the majority of medications in the majority 
of states, by a licensed physician. The availability of these 
substances is carefully controlled and limited because they must be 
prescribed and administered by a highly trained and knowledgeable 
professional, can have detrimental side effects, and should not be 
self-administered.
    Some commenters asked whether a case where a prescription was 
written by a physician and given to the injured or ill employee but was 
not actually filled or taken would be recordable. In some instances the 
employee, for religious or other reasons, refuses to fill the 
prescription and take the medicine. In other cases, the prescriptions 
are issued on a ``take-as-needed'' basis. In these cases, the health 
care professional gives the patient a prescription, often for pain 
medication, and tells the patient to fill and take the prescription if 
he or she

[[Page 5987]]

needs pain relief. OSHA's long-standing policy has been that if a 
prescription of this type has been issued, medical treatment has been 
provided and the case must therefore be recorded. Numerous commenters 
asked OSHA to reverse or clarify its policy and consider these 
prescriptions to be first aid in the final rule (see, e.g., Exs. 15: 
13, 105, 247, 260, 262, 279, 281, 295, 300, 308, 359, 362, 386, 414). 
For example, the National Safety Council requested that ``OSHA should 
specify whether the treatment must actually be given or merely be 
appropriate or normal for the injury or illness. For example, is 
medical treatment given when a prescription is written or when it is 
filled or when it is taken by the employee'' (Ex. 15: 359).
    OSHA has decided to retain its long-standing policy of requiring 
the recording of cases in which a health care professional issues a 
prescription, whether that prescription is filled or taken or not. The 
patient's acceptance or refusal of the treatment does not alter the 
fact that, in the health care professional's judgment, the case 
warrants medical treatment. In addition, a rule that relied on whether 
a prescription is filled or taken, rather than on whether the medicine 
was prescribed, would create administrative difficulties for employers, 
because such a rule would mean that the employer would have to 
investigate whether a given prescription had been filled or the 
medicine had actually been taken. Finally, many employers and employees 
might well consider an employer's inquiry about the filling of a 
prescription an invasion of the employee's privacy. For these reasons, 
the final rule continues OSHA's longstanding policy of considering the 
giving of a prescription medical treatment. It departs from former 
practice with regard to the administration of a single dose of a 
prescription medicine, however, because there is no medical reason for 
differentiating medical treatment from first aid on the basis of the 
number of doses involved. This is particularly well illustrated by the 
recent trend toward giving a single large dose of antibiotics instead 
of the more traditional pattern involving several smaller doses given 
over several days.
    Yet another issue raised by commenters about medications involved 
the use of non-prescription medications at prescription strength. In 
recent years, many drugs have been made available both as prescription 
and ``over-the-counter'' medications, depending on the strength or 
dosage of the product. Some examples include various non-steroidal 
anti-inflammatory drugs (NSAIDs), such as ibuprofen, and cortisone 
creams. OSHA's policy has been that if these drugs are used in the 
over-the-counter form they are first aid, but if they are used in 
prescription form, they are medical treatment. Some commenters stated 
that these drugs should always be considered first aid (see, e.g., Exs. 
15: 300, 308, 414). For example, Heritage Environmental Services, Inc. 
stated:

    While the proposed rule includes the use of non-prescription 
medications in the definition of first aid, it fails to address the 
use of prescription quantities of over-the-counter medications 
(i.e., Tylenol, Motrin). It has been Heritage's experience that the 
requirement of the current rule to record cases where physicians 
have prescribed over the counter medications has resulted in the 
inclusion of a broad range of minor cases, that in all other 
respects would not have been recordable. In working with 
occupational health care providers for many years, Heritage has 
found that frequently, physicians prescribe prescription quantities 
of over the counter medications for reasons other than the severity 
of the injury. Many physicians are unaware that the distribution of 
OTC medications in such a manner results in an OSHA recordable 
injury/illness.* * * Heritage strongly favors the inclusion of a 
statement within the definition of first aid that eliminates the 
need to record cases where the sole reason for the recording of the 
case is the administration of prescription quantities of over-the-
counter medications. (Ex. 15: 300)

    Other commenters stated that the use of nonprescription medications 
should be considered medical treatment if they are used at prescription 
strength (Ex. 15: 279) or that the continued use of non-prescription 
drugs, especially anti-inflammatory drugs, should be considered medical 
treatment (see, e.g., Exs. 15: 362, 371, 380, 418). The Union of 
Needletrades, Industrial and Textile Employees (UNITE) stated that 
``the self-administration of medication, when used on a recurring 
basis, should trigger the recording of cases'' (Ex. 15: 380), and the 
United Food and Commercial Workers Union, pointed out that ``When the 
employee reports pain that has lasted for over a week, they are given 
over-the-counter medication for as long as they ask. These cases, which 
can go on for a month or longer, are never recorded'' (Ex. 15: 371).
    One commenter suggested that health care professionals might 
prescribe over-the-counter medications rather than prescription 
medications for economic reasons (Ex. 15: 279).
    The final rule does not consider the prescribing of non-
prescription medications, such as aspirin or over-the-counter skin 
creams, as medical treatment. However, if the drug is one that is 
available both in prescription and nonprescription strengths, such as 
ibuprofen, and is used or recommended for use by a physician or other 
licensed health care professional at prescription strength, the medical 
treatment criterion is met and the case must be recorded. There is no 
reason for one case to be recorded and another not to be recorded 
simply because one physician issued a prescription and another told the 
employee to use the same medication at prescription strength but to 
obtain it over the counter. Both cases received equal treatment and 
should be recorded equally. This relatively small change in the 
recordkeeping rule will improve the consistency and accuracy of the 
data on occupational injuries and illnesses and simplify the system as 
well.
    Two commenters asked OSHA to add non-prescription ointments to item 
3 on the first aid list (Exs. 15: 308, 443). The final rule simply 
lists non-prescription medications, and expects non-prescription 
medications to be included regardless of form. Therefore, non-
prescription medicines at non-prescription strength, whether in 
ointment, cream, pill, liquid, spray, or any other form are considered 
first aid. OSHA has also removed antiseptics from the description of 
non-prescription medications. Following the same logic used for 
ointments, there is no need to list the variety of possible uses of 
non-prescription medications. Non-prescription medicines are first aid 
regardless of the way in which they are used.
    Item 4 listed in the NPRM definition of first aid was ``Simple 
administration of oxygen.'' Some commenters agreed with OSHA's proposal 
to define the giving of oxygen as first aid (see, e.g., Exs. 15: 34, 
74, 78, 201, 281, 378, 414).
    Several commenters, however, asked OSHA to provide more guidance as 
to what qualified as the ``simple'' administration of oxygen (see, 
e.g., Exs. 15: 13, 170, 188, 229, 260, 262, 265, 272, 303, 374, 401, 
405), while others suggested alternatives that would make some uses of 
oxygen first aid and other uses medical treatment. The American 
Petroleum Institute recommended: ``Simple oxygen administration is 
standard operating procedure for EMTs and should remain first aid. 
Oxygen therapy, if prescribed, should be considered medical treatment'' 
(15: 375). A group of utilities said ``Simple administration of oxygen 
should be defined to include the preventive aspects following an 
injury. This would include, for example, administration at the pre-
hospital site or while in the emergency room or hospital for 
observation. Identifying oxygen administration in this manner would

[[Page 5988]]

eliminate the need to identify which of the more advanced uses of 
oxygen should be considered as medical treatment'' (see, e.g., Exs. 15: 
260, 262, 265, 401).
    A number of commenters opposed the inclusion of oxygen as a first 
aid treatment (see, e.g., Exs. 15: 9, 87, 156, 290, 350, 395, 415, 
429). The American Red Cross stated:

    The simple administration of oxygen * * * is inappropriately 
considered first aid. Simple administration of oxygen is not so 
simple. If oxygen is administered to someone with chronic pulmonary 
disease (a medical condition not generally recognized by untrained 
individuals), the victim could die. Carbon dioxide build-up in the 
blood forces an individual with this condition to breathe; 
therefore, administration of oxygen would obstruct the involuntary 
breathing action, resulting in pulmonary arrest. Red Cross would 
argue that no administration of oxygen is ``simple'' (Ex. 15: 290).

The United Brotherhood of Carpenters Health & Safety Fund of North 
America (USC H&SF) remarked, ``[w]e urge that OSHA remove the simple 
administration of oxygen from first aid treatment. This procedure 
requires considerable training above what is recognized as First Aid by 
either the Red Cross's or National Safety Council's First Aid training 
courses'' (Ex. 15: 350). The Muscatine Iowa Chamber of Commerce Safety 
Committee added:

    We feel that oxygen administration, as a first aid treatment 
would extend beyond the intent of the standards. The training and 
equipment requirements for the delivery of oxygen are extensive and 
beyond the simple first aid kits. We believe that the delivery of 
even the most minimal amount of oxygen constitutes an advanced level 
of care to an employee. All oxygen administration should be 
considered as medical treatment, no matter how delivered or how much 
is used, for whatever the reason'' (Ex. 15: 87, p. 4).

    OSHA is persuaded by the views of the Red Cross and others, which 
point to the potential complexities and consequences of the 
administration of oxygen. Accordingly, the Agency has decided to remove 
the use of oxygen from the first aid list and to consider any use of 
oxygen medical treatment. Oxygen administration is a treatment that can 
only be provided by trained medical personnel, uses relatively complex 
technology, and is used to treat serious injuries and illnesses. The 
use of any artificial respiration technology, such as Intermittent 
Positive Pressure Breathing (IPPB), would also clearly be considered 
medical treatment under the final rule.
    Item 5 listed in the NPRM definition of first aid was 
``administration of tetanus or diphtheria shot(s) or booster(s).'' 
These treatments have been considered first aid by OSHA for some time 
when they are administered routinely, i.e., in the absence of an injury 
or illness (see the Recordkeeping Guidelines (Ex. 2, p. 43)). Several 
commenters expressed their support for continuing to include tetanus 
and diphtheria shots and boosters as first aid (see, e.g., Exs. 15: 
197, 201, 218, 247, 302, 308, 348, 385, 386, 393). Bell Atlantic 
commented that ``Bell Atlantic supports the proposed inclusion of 
tetanus/diphtheria shots on the first aid list. Such preventative 
actions should not be considered medical treatment'' (Ex. 15: 218). One 
commenter, Countrymark Cooperative, Inc., agreed that tetanus shots or 
boosters should be considered first aid, but did not believe diphtheria 
shots or boosters should be (Ex. 15: 9).
    Two commenters recommended that tetanus and diphtheria shots be 
considered medical treatment, whether or not they are administered in 
connection with a work-related injury or illness. The American Red 
Cross stated, ``inappropriately considered * * * administration of 
diphtheria and tetanus shots or boosters cannot be performed without a 
prescription from a physician. The person administering the shots must 
also be cognizant of potential side effects, i.e., anaphylactic shock, 
which can result from such an action, and be prepared to address them'' 
(Ex. 15: 290). The International Brotherhood of Teamsters added 
``International Brotherhood of Teamsters encourages OSHA to discontinue 
tetanus and diphtheria booster shots as first aid. They should be 
considered medical treatment. They are usually administered both after 
exposure and before diagnosis. The International Brotherhood of 
Teamsters considers it similar to the prophylaxis medical treatment 
given after exposure to Hepatitis B Virus'' (Ex. 15: 369).
    A number of commenters recommended the addition to the first aid 
list of other immunizations, including gamma globulin; vaccines for 
hepatitis B, hepatitis C, and rabies; or other prophylactic 
immunizations (see, e.g., Exs. 15: 197, 201, 218, 302, 308, 347, 348, 
386). Caterpillar, Inc. recommended, ``[c]learly exclude any 
immunizations and inoculations which are preventative in nature. 
Immunizations and inoculations are not usually provided in response to 
a specific injury or illness and should be excluded from OSHA records'' 
(Ex. 15: 201).
    In the final rule, tetanus immunizations are included as item B on 
the first aid list. These immunizations are often administered to a 
worker routinely to maintain the required level of immunity to the 
tetanus bacillus. These immunizations are thus based not on the 
severity of the injury but on the length of time since the worker has 
last been immunized.
    The issue of whether or not immunizations and inoculations are 
first aid or medical treatment is irrelevant for recordkeeping purposes 
unless a work-related injury or illness has occurred. Immunizations and 
inoculations that are provided for public health or other purposes, 
where there is no work-related injury or illness, are not first aid or 
medical treatment, and do not in themselves make the case recordable. 
However, when inoculations such as gamma globulin, rabies, etc. are 
given to treat a specific injury or illness, or in response to 
workplace exposure, medical treatment has been rendered and the case 
must be recorded. The following example illustrates the distinction 
OSHA is making about inoculations and immunizations: if a health care 
worker is given a hepatitis B shot when he or she is first hired, the 
action is considered first aid and the case would not be recordable; on 
the other hand, if the same health care worker has been occupationally 
exposed to a splash of potentially contaminated blood and a hepatitis B 
shot is administered as prophylaxis, the shot constitutes medical 
treatment and the case is recordable.
    Item 6 listed in the NPRM definition of first aid was ``cleaning, 
flushing or soaking wounds on skin surface.'' OSHA received only one 
specific comment on this item. The American Federation of State, 
County, and Municipal Employees (AFSCME) commented: ``Cleaning, 
flushing or soaking wounds on skin surfaces. This is the initial 
treatment for needle stick injuries. AFSCME requests that OSHA clarify 
its position that cleaning, flushing or soaking of sharps injuries is 
considered a medical treatment'' (Ex. 15: 362).
    The AFL-CIO disagreed with OSHA's proposed approach to skin surface 
wounds, based on the belief that valuable information about serious 
work-related injuries would be lost if the approach were adopted:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. Those conditions 
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of 
wounds would no longer be recordable. The AFL-CIO believes that 
first aid should be limited to one time treatments as is the

[[Page 5989]]

current practice, so that serious conditions which require multiple 
treatments are recorded on the log. We strongly urge OSHA to 
maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first aid 
(Ex. 15: 418).

    OSHA believes that cleaning, flushing or soaking of wounds on the 
skin surface is the initial emergency treatment for almost all surface 
wounds and that these procedures do not rise to the level of medical 
treatment. This relatively simple type of treatment does not require 
technology, training, or even a visit to a health care professional. 
More serious wounds will be captured as recordable cases because they 
will meet other recording criteria, such as prescription medications, 
sutures, restricted work, or days away from work. Therefore, OSHA has 
included cleaning, flushing or soaking of wounds on the skin surface as 
an item on the first aid list. As stated previously, OSHA does not 
believe that multiple applications of first aid should constitute 
medical treatment; it is the nature of the treatment, not how many 
times it is applied, that determines whether it is first aid or medical 
treatment.
    Item 7 listed in the NPRM definition of first aid was ``Use of 
wound coverings, such as bandages, gauze pads, etc.'' These treatments 
were considered first aid treatments by the Recordkeeping Guidelines 
(Ex. 2, p. 43). OSHA received no comments opposing the proposed 
definition of wound coverings as first aid. However, the issue of 
whether or not butterfly bandages and Steri-stripsTM are 
first aid was raised. Steri-stripsTM are a product of the 3M 
Company, which advertises them as a comfortable adhesive strip used to 
secure, close and support small cuts, wounds and surgical incisions. 
``Butterfly bandages'' is a generic term used for similar adhesive 
strips designed for small wounds.
    All of the commenters who raised the issue suggested that OSHA add 
Steri-strips and butterfly bandages to this first aid item (see, e.g., 
Exs. 15: 45, 108, 163, 201, 247, 308, 332, 349, 387, 405). Some 
commenters believed that the use of Steri-stripsTM and 
butterfly bandages should always be considered first aid (see, e.g., 
Exs. 15: 45, 247, 332, 349, 387), while others believed they should be 
considered medical treatment only when used as a replacement for, or in 
lieu of, sutures (see, e.g., Exs. 15: 108, 163, 201, 308, 405). The 
Westinghouse Electric Corporation stated, ``Steri-strips should be 
added to the list of first-aid treatments, when determined by the 
attending medical provider that the Steri-stripTM was not 
applied in lieu of sutures. Often medical care providers use a Steri-
stripTM rather than a bandage, even though the injury does 
not require closure of any type'' (Ex. 15: 405).
    These treatments were listed in the 1986 Recordkeeping Guidelines 
as medical treatment when applied ``in lieu of sutures'' (Ex. 2, p. 
43). In the past, this provision in the Guidelines has been the subject 
of several letters of interpretation. For example, in a 1993 letter 
from Ms. Monica Verros, R.N., C.O.H.N, of the IBP company, Ms. Verros 
asked, ``[a]re all applications of butterfly adhesive dressing(s) and 
Steri-strip(s) considered medical treatment?'' OSHA's answer was simply 
``yes'' (Ex. 70: 136).
    OSHA agrees with the commenters who suggested that these devices be 
considered first aid treatment. They are included in item D of the 
first aid list. Steri strips and butterfly bandages are relatively 
simple and require little or no training to apply, and thus are 
appropriately considered first aid.
    Two commenters also raised the issue of whether or not sutures or 
stitches should be considered first aid (Exs. 15: 229, 348). The 
National Pest Control Association (NPCA) stated:

    NPCA believes cuts requiring five or less external stitches 
should also be categorized as first aid as well unless the employee 
has to go back to the medical provider because of the cut or there 
are more than five external stitches. Some of the examples the 
agency has included in its list of first aid, such as drilling of a 
nail to relieve pressure for subungual hematoma and removal of 
splinters or foreign material from areas other than eyes by 
irrigation, tweezers, cotton, swabs or other simple means, seems to 
be comparable to cuts requiring a minimal amount of stitches. 
Therefore, we believe it should be added to the list (Ex. 15: 229, 
p. 4).

The Dupont Company suggested: ``Expand the `suture' category to say 
that any device used for closure for therapeutic reasons is an 
automatic MTC (medical treatment case). Leeway should be given for when 
a care provider gives `unnecessary' treatment, for example, sutures for 
cosmetic reasons instead of for therapeutic closure, where the doctor 
provides the documentation'' (Ex. 15: 348).
    OSHA believes that including sutures or stitches in the first aid 
list would not be appropriate. Performing these procedures requires 
substantial medical training, and they are used only for more serious 
wounds and are generally considered to go beyond first aid. OSHA has 
also decided not to provide exclusions for first aid items based on 
their purpose or intent. If the medical professional decides stitches 
or sutures are necessary and proper for the given injury, they are 
medical treatment.
    Because OSHA has decided not to include a list of medical 
treatments in the final rule, there is no need to articulate that the 
use of other wound closing devices, such as surgical staples, tapes, 
glues or other means are medical treatment. Because they are not 
included on the first aid list, they are by definition medical 
treatment.
    Item 8 listed in the proposed definition of first aid was ``[u]se 
of any hot/cold therapy (e.g. compresses, soaking, whirlpools, non 
prescription skin creams/lotions for local relief, etc.) except for 
musculoskeletal disorders'' (61 FR 4059). The Recordkeeping Guidelines 
defined heat therapy, hot or cold therapy compresses or soaking 
therapy, or whirlpool bath therapy on a second or subsequent visit to 
be medical treatment (Ex. 2, p. 43). OSHA has restated this guidance in 
numerous letters of interpretation, most of them related to the issue 
of the recording of musculoskeletal disorders (MSDs).
    A number of commenters recommended that hot or cold therapy be 
defined as first aid regardless of the number of times it is 
administered or the type of condition for which it is used (see, e.g., 
Exs. 15: 39, 45, 95, 109, 156, 163, 199, 201, 218, 246, 308, 347, 348, 
359, 386, 414, 430, 443). Several of the comments cited consistency as 
an issue (see, e.g., Exs. 15: 39, 109, 347, 348, 430). For example, the 
Dupont Company stated that ``Item 8 on the `First Aid Treatment' list 
considers the same treatment as either first aid or medical treatment 
depending on the condition for which it is applied. The treatment is 
used for reduction of swelling and discomfort. The condition for which 
it is used should not matter. * * * Exclude the `except for 
musculoskeletal disorders * * *' clause from item 8 (Ex. 15: 348, p. 
9).
    Another issue raised was that hot and cold treatments do not 
require special training (Ex. 15: 414). For example, Raytheon 
Constructors stated ``[w]e believe the following treatments should be 
added: Soaking, whirlpool and hot/cold therapy with no limit on the 
number of times. Many physicians choose this conservative treatment, 
plus, any first aid trained person and/or the injured person can do 
this'' (Ex. 15: 414). Other commenters stated that serious 
musculoskeletal disorders would be captured more consistently by other 
recording criteria (see, e.g., Exs. 15: 199, 347). The Ford Motor 
Company stated:


[[Page 5990]]


    We have a major disagreement with the proposed rule that the use 
of any hot or cold therapy is first aid, except for musculoskeletal 
disorders. The use of hot or cold therapy should always be 
considered first aid. If an individual has a significant or serious 
musculoskeletal disorder, it would require prescription medicine, 
restriction of work or motion, transfer to another job, a day away 
from work, or medical treatment. Considering hot or cold therapy to 
always be first aid simplifies the system, reduces confusion, and 
does not discourage practitioners from using hot or cold therapy for 
minor or insignificant musculoskeletal disorders. If all 
musculoskeletal disorders which include two or more applications of 
hot or cold therapy as directed by a health care provider are 
recordable, the data on musculoskeletal disorders will be absolutely 
useless (Ex. 15: 347).

    Several commenters believed that multiple hot or cold treatments 
should be considered medical treatment (see, e.g., Exs. 15: 371, 418). 
The AFL-CIO disagreed with OSHA's proposal; it recommended that 
multiple treatments of all types be considered medical treatment, based 
on the belief that valuable information about serious work-related 
injuries would otherwise be lost. The AFL-CIO said:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. * * * The AFL-CIO 
believes that first aid should be limited to one time treatments as 
is the current practice, so that serious conditions which require 
multiple treatments are recorded on the log. We strongly urge OSHA 
to maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first aid 
(15: 418).

The Tosco Corporation proposed an alternative, recommending that hot/
cold treatments for musculoskeletal disorders be considered first aid 
for the first four treatments (Ex. 15: 246).
    In the final rule, OSHA has included hot and cold treatment as 
first aid treatment, regardless of the number of times it is applied, 
where it is applied, or the injury or illness to which it is applied. 
The Agency has decided that hot or cold therapy must be defined as 
either first aid or medical treatment regardless of the condition being 
treated, a decision that departs from the proposal. It is OSHA's 
judgment that hot and cold treatment is simple to apply, does not 
require special training, and is rarely used as the only treatment for 
any significant injury or illness. If the worker has sustained a 
significant injury or illness, the case almost always involves some 
other form of medical treatment (such as prescription drugs, physical 
therapy, or chiropractic treatment); restricted work; or days away from 
work. Therefore, there is no need to consider hot and cold therapy to 
be medical treatment, in and of itself. Considering hot and cold 
therapy to be first aid also clarifies and simplifies the rule, because 
it means that employers will not need to consider whether to record 
when an employee uses hot or cold therapy without the direction or 
guidance of a physician or other licensed health care professional.
    Item 9 listed in the NPRM definition of first aid was ``[u]se of 
any totally non-rigid, non-immobilizing means of support (e.g. elastic 
bandages).'' The proposal reflected OSHA's guidance to employers under 
past interpretations. The Recordkeeping Guidelines defined first aid 
treatment as ``use of elastic bandage(s) during first visit to medical 
personnel'' (Ex. 2, p. 43). The Guidelines do not provide specific 
guidance on the use of other types of orthopedic devices such as 
splints, casts, or braces. In response to requests from the public to 
clarify the issue of which devices are medical treatment and which are 
first aid treatment, OSHA issued several letters of interpretation 
stating that the use of wraps or non-constraining devices such as 
wristlets, tennis elbow bands or elastic bandages are first aid 
treatment, regardless of how long or how often they are used. The use 
of casts, splints, or orthopedic devices designed to immobilize a body 
part to permit it to rest and recover is considered medical treatment. 
Generally, orthopedic devices used for immobilization are made rigid, 
in whole or in part, through the use of stays or non-bending supports 
(see, e.g., Exs. 70: 40, 158).
    OSHA received several comments recommending that it provide 
additional clarification of this issue (see, e.g., Exs. 15: 176, 290). 
Several commenters suggested that OSHA include wrist splints as first 
aid, on the grounds that wrist splints are used as a prophylactic 
treatment (see, e.g., Exs. 15: 332, 349, 386, 387). Other commenters 
recommended that finger splints be considered first aid (see, e.g., 
Exs. 15: 201, 349, 386). The Caterpillar Company suggested that OSHA 
``[e]xpand item 9 to include rigid finger splints, which are used only 
to prevent further injury or to maintain the cleanliness of finger 
lacerations and other minor wounds, rather than as part of the required 
medical treatment. Only splints that are used to provide rigidity as 
part of the required medical treatment should trigger recordability'' 
(Ex. 15: 201).
    Several comments centered on the issue of immobilization for 
injuries while the worker is being transported to a medical care 
facility (see, e.g., Exs. 15: 290, 347, 434). The Ford Motor Company 
remarked, ``[t]he first aid list should be expanded to include the use 
of any partially or totally rigid immobilizing means of support when 
used solely for the purpose of immobilization during initial transport 
for medical evaluation. For example, the use of a back board, stiff 
neck collar, or air splint'' (Ex. 15: 347). The American Red Cross 
added:

    While Red Cross would agree that this is ``first aid,'' it is 
unclear whether OSHA intends for use of rigid support to be 
considered ``medical treatment.'' In most traditional first aid 
classes, including those taught by Red Cross, students are taught 
that if, for example, a victim has broken a bone, any rigid means of 
support that would immobilize the limb until further medical care 
can be obtained should be utilized. Examples of rigid support 
include newspapers, magazines, sticks, boards, splints, etc., 
anything that is available to prevent further injury. This action 
may be performed by anyone who has been trained in first aid, and 
Red Cross does not believe that ``rigidity'' is the appropriate 
qualification to consider this action ``medical treatment'' (15: 
290).

    The General Electric Corporation (GE) recommended that OSHA rely, 
not on the design of the device but on whether or not the device 
resulted in restricted activity. GE recommended ``the following 
additions to the list: Use of rigid or non-rigid immobilization 
devices, if they don't result in restricted activity, e.g. wrist 
braces, finger splints, immobilization for transport'' (Ex. 15: 349).
    OSHA has included two items related to orthopedic devices in the 
final definition of first aid. Item F includes ``[u]sing any non-rigid 
means of support, such as elastic bandages, wraps, non-rigid back 
belts, etc. (devices with rigid stays or other systems designed to 
immobilize parts of the body are considered medical treatment for 
recordkeeping purposes).'' OSHA has included more examples of the 
devices (wraps and non-rigid back belts) to help make the definition 
clearer. However, OSHA believes that the use of orthopedic devices such 
as splints or casts should be considered medical treatment and not 
first aid. They are typically prescribed by licensed health care 
professionals for long term use, are typically used for serious 
injuries and illnesses, and are beyond the everyday definition of first 
aid. OSHA believes that it would be inappropriate to rely on 
``restricted activity,'' as recommended by GE, because there may be 
situations where orthopedic devices are prescribed, the worker is not 
placed on

[[Page 5991]]

restrictions, but an injury or illness warranting recording has 
occurred.
    However, OSHA agrees with those commenters who stated that the use 
of these devices during an emergency to stabilize an accident victim 
during transport to a medical facility is not medical treatment. In 
this specific situation, a splint or other device is used as temporary 
first aid treatment, may be applied by non-licensed personnel using 
common materials at hand, and often does not reflect the severity of 
the injury. OSHA has included this item as G on the first aid list: 
``[u]sing temporary immobilization devices while transporting an 
accident victim (e.g. splints, slings, neck collars, etc.)''
    Item 10 listed in the proposed definition of first aid was 
``drilling of a nail to relieve pressure for subungual hematoma.'' A 
subungual hematoma is an accumulation of blood underneath a finger or 
toenail that is normally caused by a sharp blow to the nail. When 
pressure builds beneath the nail, pain results. The normal course of 
treatment for this injury is to drill a small hole through the nail to 
relieve the pressure. In the past, OSHA considered such treatment to be 
medical treatment and not first aid. For example, a 1993 letter from 
IBP, Inc. asked whether ``[d]rilling a hole through a fingernail to 
relieve pressure (subungual hematoma) is considered medical 
treatment?'' OSHA's answer was ``Yes, the draining of any fluids or 
blood is to be considered medical treatment'' (Ex. 70: 136).
    OSHA received very few comments on this first aid item. Linda 
Ballas & Associates stated ``The drilling of a nail to relieve pressure 
for subungual hematoma should be included as medical treatment and not 
first aid'' (Ex. 15: 31, p. 5). The American Textile Manufacturers 
Institute recommended that OSHA change the item to: ``Simple relieving 
of the pressure of a subungual hematoma. The use of the word drilling 
is too restrictive. There are a number of simple procedures to relieve 
pressure that are considered first aid'' (Ex. 15:156). OSHA also 
received a similar comment from Oxychem Corporation stating that 
lancing a blister should be considered first aid (Ex. 15: 386).
    OSHA has decided to retain this item on the first aid list and to 
add the lancing of blisters as well. These are both one time treatments 
provided to relieve minor soreness caused by the pressure beneath the 
nail or in the blister. These are relatively minor procedures that are 
often performed by licensed personnel but may also be performed by the 
injured worker. More serious injuries of this type will continue to be 
captured if they meet one or more of the other recording criteria. OSHA 
has specifically mentioned finger nails and toenails to provide 
clarity. These treatments are now included as item H on the first aid 
list.
    Item 11 listed in the proposed definition of first aid was ``Use of 
eye patches.'' The Recordkeeping Guidelines did not provide specific 
guidance about eye patches. However, in a 1992 letter, OSHA provided an 
interpretation that the use of eye patches was first aid treatment; in 
that letter, ELB Inc. asked OSHA to ``[e]xplain if pressure patches on 
eyes are recordable or if a patch over an eye to prevent light from 
entering is recordable? Is the use of an eye patch recordable?'' OSHA 
answered `` The use of a normal eye patch is considered to be first 
aid. However, if the employee is unable to perform all of his/her 
normal job duties because of the patch, the case should be recorded 
based on restricted work activity. The use of a pressure eye patch is 
medical treatment'' (Ex. 70: 161) .
    OSHA received only one comment specific to this item. The National 
Institute for Occupational Safety and Health (NIOSH) stated that the 
initial use of an eye patch would generally require medical evaluation 
and should not be considered first aid (Ex. 15: 407). In the final 
rule, OSHA has included the use of eye patches as first aid in item I 
of the first aid list. Eye patches can be purchased without a 
prescription, and are used for both serious and non-serious injuries 
and illnesses. OSHA believes that the more serious injuries to the eyes 
will that NIOSH refers to require medical treatment, such as 
prescription drugs or removal of foreign material by means other than 
irrigation or a cotton swab, and will thus be recordable.
    Item 12 listed in the proposed definition of first aid was 
``removal of foreign bodies not embedded in the eye if only irrigation 
or removal with a cotton swab is required.'' The effect of including 
this item in the list of first aid treatments would be to make any case 
involving a foreign body embedded in the eye a recordable injury.
    The Recordkeeping Guidelines listed ``removal of foreign bodies 
embedded in the eye'' as medical treatment and ``removal of foreign 
bodies not embedded in eye if only irrigation is required'' as first 
aid (Ex. 2, p. 43). In subsequent letters of interpretation, the use of 
a cotton swab to remove a foreign body from the eye was interpreted to 
be first aid; injuries requiring any removal method other than 
irrigation or a cotton swab made the case recordable (Ex. 70: 92).
    OSHA received few comments on this first aid item. NIOSH stated 
that any case involving a foreign body in the eye should be recorded, 
because ``even though removal of a foreign body from the eye may be a 
first aid procedure, the presence of a work-related foreign body in the 
eye should be recordable. These procedures should not be considered 
first aid'' (Ex. 15: 407). The Ford Motor Company asked OSHA to clarify 
that a foreign body ``embedded in or adhered to'' the eye and removed 
by the methods proposed would be considered first aid. Ford added that 
``[t]he use of a prescription medication to anesthetize the eye for a 
diagnostic procedure, an assessment procedure, or flushing to remove a 
loose foreign body should not be considered medical treatment'' (Ex. 
15: 347). Countrymark Cooperative, Inc. asked that the definition of 
this item be expanded to include other means of removal, stating: ``We 
suggest wording such as * * * Removal of foreign bodies not embedded in 
the eye if only irrigation or simple removal techniques are required, 
or comparable'' (Ex. 15: 9).
    In the final rule, OSHA has included as item J ``Removing foreign 
bodies from the eye using only irrigation or a cotton swab.'' OSHA 
believes that it is often difficult for the health care professional to 
determine if the object is embedded or adhered to the eye, and has not 
included this suggested language in the final rule. In all probability, 
if the object is embedded or adhered, it will not be removed simply 
with irrigation or a cotton swab, and the case will be recorded because 
it will require additional treatment.
    OSHA believes that it is appropriate to exclude those cases from 
the Log that involve a foreign body in the eye of a worker that can be 
removed from the eye merely by rinsing it with water (irrigation) or 
touching it with a cotton swab. These cases represent minor injuries 
that do not rise to the level requiring recording. More significant eye 
injuries will be captured by the records because they involve medical 
treatment, result in work restrictions, or cause days away from work.
    Item 13, the last item listed in the proposed definition of first 
aid, was ``Removal of splinters or foreign material from areas other 
than the eyes by irrigation, tweezers, cotton swabs or other simple 
means.'' The Recordkeeping Guidelines distinguished between foreign 
body removal cases on the basis of the complexity of the removal 
technique used. According to the Guidelines, the ``removal of foreign 
bodies from a wound if the procedure is

[[Page 5992]]

complicated because of depth of embedment, size or location'' was 
medical treatment, while ``removal of foreign bodies from wound, if 
procedure is uncomplicated, and is, for example, by tweezers or other 
simple technique'' was first aid (Ex. 2, p. 43).
    OSHA received one comment specific to this proposed first aid item. 
The Muscatine Iowa Chamber of Commerce Safety Committee stated ``The 
list appears to be very inclusive of what items are currently 
understood as first aid treatments. Our only concern is the ambiguous 
ending of Number 13. ``* * * or other simple means.'' This should be 
further defined. Change number 13 to read: ``Removal of splinters or 
foreign material from areas other than the eyes by irrigation, 
tweezers, cotton swabs or by excision not to exceed the depth of the 
outer layer of skin'' (Ex. 15: 87).
    In the final rule, OSHA has decided to retain item 13 essentially 
as proposed, and this first aid treatment appears as item K on the 
first aid list. The inclusion of the phrase ``other simple means'' will 
provide some flexibility and permit simple means other than those 
listed to be considered first aid. Cases involving more complicated 
removal procedures will be captured on the Log because they will 
require medical treatment such as prescription drugs or stitches or 
will involve restricted work or days away from work. OSHA believes that 
cases involving the excision of the outer layer of skin are not 
appropriately considered first aid, as suggested by the Muscatine Iowa 
Chamber of Commerce; excision of tissue requires training and the use 
of surgical instruments.
Additions to the First Aid List Suggested by Commenters
    In addition to comments about the first aid items OSHA proposed to 
consider first aid, a number of commenters asked for additional 
clarifications or recommended additions to the first aid list. The 
items suggested included exercise, chiropractic treatment, massage, 
debridement, poison ivy, bee stings, heat disorders, and burns.
    Exercise: Several commenters requested adding exercise, performed 
either at home or at work, to the list (see, e.g., Exs. 15: 201, 308, 
349, 396). For example, Caterpillar suggested that OSHA ``[a]dd a 
listing for range of motion exercises and minor physical therapy 
performed at home'' (Ex. 15: 201). These comments described exercises 
that amount to self-administered physical therapy, and are normally 
recommended by a health care professional who trains the worker in the 
proper frequency, duration and intensity of the exercise. Physical 
therapy treatments are normally provided over an extended time as 
therapy for a serious injury or illness, and OSHA believes that such 
treatments are beyond first aid and that cases requiring them involve 
medical treatment.
    Chiropractic treatment: A few commenters believe that chiropractic 
treatment should be treated as first aid (see, e.g., Exs. 15: 154, 299, 
396). For example, the Sandoz Corporation stated ``[i]t would simplify 
our record keeping if there were better definition of the use of 
chiropractors. Is one visit counted or do you have to have multiple 
visits'' (Ex. 15: 299). OSHA does not distinguish, for recordkeeping 
purposes, between first aid and medical treatment cases on the basis of 
number of treatments administered. OSHA also does not distinguish 
between various kinds of health care professionals, assuming they are 
operating within their scope of practice. If a chiropractor provides 
observation, counseling, diagnostic procedures, or first aid procedures 
for a work-related injury or illness, the case would not be recordable. 
On the other hand, if a chiropractor provides medical treatment or 
prescribes work restrictions, the case would be recordable.
    Massage therapy: The Union Carbide company recommended the addition 
of massages and prescribed physical therapy to the first aid list (Ex. 
15: 396). OSHA believes that massages are appropriately considered 
first aid and has included them as item M in the final rule's first aid 
list. However, physical therapy or chiropractic manipulation are 
treatments used for more serious injuries, and are provided by licensed 
personnel with advanced training and therefore rise to the level of 
medical treatment beyond first aid.
    Debridement: Several commenters recommended that OSHA include 
debridement as a first aid treatment (see, e.g., Exs. 15: 201, 332, 
349, 387). Debridement is the surgical excision, or cutting away, of 
dead or contaminated tissue from a wound. The Recordkeeping Guidelines 
listed ``cutting away dead skin (surgical debridement)'' as an example 
of medical treatment (Ex. 2, p. 43). The Caterpillar Company 
recommended that OSHA ``[a]dd to the [first aid] listing provisions for 
the minor removal of nonviable tissue as first aid treatment'' (Ex. 15: 
201).
    OSHA has decided not to include debridement as a first aid 
treatment. This procedure must be performed by a highly trained 
professional using surgical instruments. Debridement is also usually 
performed in conjunction with other forms of medical treatment, such as 
sutures, prescription drugs, etc.
    Intravenous (IV) administration of glucose and saline: Two 
commenters (Exs. 15: 154, 395) argued that the intravenous 
administration of saline (salt) and glucose (sugar) should be 
considered first aid. In former letters of interpretation, OSHA 
considered these treatments first aid in injury cases (see, e.g., Exs. 
15: 154, 395). In the final rule, however, OSHA has decided not to 
include the IV administration of fluids on the first aid list because 
these treatments are used for serious medical events, such as post-
shock, dehydration or heat stroke. The administration of IVs is an 
advanced procedure that can only be administered by a person with 
advanced medical training, and is usually performed under the 
supervision of a physician.
    The Union Carbide Corporation (Ex. 15: 396) also recommended three 
additions to the first aid list: UV treatment of blisters, rashes and 
dermatitis; acupuncture, when administered by a licensed health care 
professional; and electronic stimulation. After careful consideration, 
OSHA has decided not to include these treatments as first aid. Each of 
these treatments must be provided by a person with specialized 
training, and is usually administered only after recommendation by a 
physician or other licensed health care professional.
    Several commenters asked that treatments for two specific types of 
disorders be added to the list: heat disorders and burns. OSHA has not 
added these types of conditions to the first aid list because the list 
includes treatments rather than conditions. However, OSHA has added 
fluids given by mouth for the relief of heat disorders to the list, in 
response to comments received.
    Two commenters asked about the recording of heat disorders and how 
they relate to the definition of first aid and medical treatment. Union 
Carbide recommended an addition to the first aid list to state ``fluids 
taken internally for heat stress'' (Ex. 15: 396). The Arizona Public 
Service Company remarked: ``Recordability of heat stress and heat rash 
should be addressed based on classification of treatment (first aid vs. 
medical)'' (Ex. 15: 247). Under OSHA's former recordkeeping system, 
heat stress was recordable as an occupational illness because it 
results from non-instantaneous exposures that occur over time and all 
occupational

[[Page 5993]]

illnesses, including minor ones, were considered recordable.
    In the final rule, OSHA agrees with Union Carbide that drinking 
fluids for the relief of heat disorders is a first aid rather than 
medical treatment and item N on the final first aid list is ``drinking 
fluids for relief of heat stress.'' However, as discussed above, OSHA 
believes that more extensive treatment, including the administration of 
fluids by intravenous injections (IV), are medical treatment, and more 
serious cases of heat disorders involving them must be entered into the 
records. In addition, any diagnosis by a physician or other licensed 
health care professional of heat syncope (fainting due to heat) is 
recordable under paragraph 1904.7(b)(6), Loss of Consciousness.
    Burns: Many commenters recommended that OSHA include the treatment 
of burns on the first aid list (see, e.g., Exs. 45, 170, 260, 262, 265, 
288, 301, 401, 414, 443). Teepak Inc. stated ``[s]econd degree burns 
treated by first aid measures only, with no infection or complication 
or prescription medication, should be considered first aid'' (Ex. 15: 
45). The Georgia Power Company argued that ``[t]reatment of all first 
degree burns should be added to the list of first aid treatments 
because they are minor injuries that are exempt from the requirements 
of the Act. Omission of first degree and second degree burns receiving 
only first aid treatment from this list is inconsistent with the 
recording criteria listed for burns of the skin in [proposed] Appendix 
B'' (Ex. 15: 260). The Chemical Manufacturers Association recommended 
that OSHA add ``[b]urns that require only one-time treatment. 
Subsequent observations and changing of bandages does not constitute 
medical treatment'' (Ex. 15: 301).
    The former Recordkeeping Guidelines listed the treatment of first 
degree burns as an example of first aid treatment and did not consider 
such treatment to be recordable (Ex. 2, p. 43). In the final rule, OSHA 
has decided not to include burn treatments on the first aid list. If 
first, second, or third degree burns result in days away from work, 
restricted work activity, or medical treatment beyond first aid, such 
as prescription drugs or complex removal of foreign material from the 
wound, they will rise to the level that requires recording.
    Taking this approach means that burns will be treated just as other 
types of injury are, i.e., minor burn injuries will not be recordable, 
while more serious burns will be recorded because they will involve 
medical treatment. For example, a small second degree burn to the 
forearm that is treated with nothing more than a bandage is not 
recordable. A larger or more severe second degree burn that is treated 
with prescription creams or antibiotics, or results in restricted work, 
job transfer, or days away from work is recordable. The vast majority 
of first degree burns and minor second degree burns will not be 
recorded because they will not meet the recording criteria, including 
medical treatment. However, more serious first and second degree burns 
that receive medical treatment will be recorded, and third degree burns 
should always be recorded because they require medical treatment.
Miscellaneous First Aid and Medical Treatment Issues
    The American Association of Occupational Health Nurses (AAOHN) was 
concerned that the public might interpret the fact that treatments were 
listed as first aid to mean that they did not have to be administered, 
in some cases, by a health care professional:

    OSHA must clarify that categorizing certain actions as first aid 
does not necessarily imply that these actions can be delegated to a 
non-health care professional. While a list of actions considered 
first aid treatment will offer guidance for employers in determining 
recordability of incidents, situations exist that will require the 
professional judgment of a health care professional. One example is 
the administration of tetanus/diphtheria shots. While it is 
appropriate to consider these treatments first aid for 
recordability, injections pose issues that require the judgment and 
expertise of a health care professional. One potential hazard of 
this treatment is the risk of side effects. The ability to identify 
the reaction and take appropriate measures should be handled by a 
qualified health care professional (Ex. 15: 181).

    OSHA agrees with the AAOHN that certain treatments and 
interventions require the professional judgment of a health care 
professional. The Agency believes that these matters are best left to 
state agencies and licensing boards, and the final rule's definition of 
health care professional (see Subpart G) makes this clear.
    The State of New York expressed a concern about the possible 
confusion some employers might experience between OSHA's requirements 
and those of the state workers' compensation systems. The New York 
Workers' Compensation Board stated:

    The proposed rule contains a broad list of treatments which will 
qualify as first aid, with less emphasis on the number of treatments 
or the resulting amount of lost time from work. It is possible that 
many of the items listed in the OSHA rule as first-aid treatments 
which do not require reporting under the proposed OSHA standard 
(i.e. use of splints, drilling a nail in a hematoma, use of 
compresses and non-prescription medications), may still require 
reporting under the WCL because in a particular case the treatment 
qualifies as medical treatment or because it has caused lost time 
from work beyond the working day. The only problem would be if 
employers, in complying with proposed OSHA requirements, failed to 
continue to comply with New York's recording and reporting 
requirements (Ex. 15: 68).

OSHA's reporting requirements do not in any way interfere with or have 
any impact on state workers compensation reporting requirements. 
Employers are required to record certain injuries and illnesses under 
the OSHA recordkeeping regulation and to observe certain other 
requirements under workers' compensation law. The two laws have 
separate functions: workers' compensation is designed to compensate 
injured or ill workers, while the OSH Act is designed to prevent 
injuries and illnesses and to create a body of information to improve 
understanding of their causes. Thus, certain injuries and illnesses may 
be reportable under state workers' compensation law but not under the 
OSHA recordkeeping rule, and certain injuries and illnesses may be 
reportable under the OSHA rule but not under one or more workers' 
compensation statutes. OSHA notes that employers have been following 
the requirements of both systems for years, and have generally not 
experienced difficulty in doing so.
    Several commenters remarked on the need for OSHA to update the 
first aid list in the future (see, e.g., Exs. 234, 247, 384, 407). One 
commenter remarked: ``The suggested first aid list adds and clarifies 
some treatments as first aid. There should be a mechanism for adding or 
removing treatments to first aid and medical treatment lists as new 
information becomes available'' (Ex. 15: 234). The Akzo Nobel Company 
suggested that ``[w]ith the assistance of occupational physicians, 
updates could be made quarterly and distributed via the Internet'' (Ex. 
15: 384). The National Institute for Occupational Safety and Health 
(NIOSH) recommended ``[t]he first aid list, however, should be included 
as an appendix, rather than in the rule itself, in order to allow 
revisions to be made more easily as medical practice evolves'' (Ex. 15: 
407).
    In response, OSHA notes that the list is part of a definition that 
sets mandatory recording and reporting requirements and is a part of 
the regulation itself. Including the first aid list as a non-mandatory 
appendix would

[[Page 5994]]

provide additional flexibility for future updates, but doing so would 
not meet the purposes for which the list is intended. The list is 
mandatory, and making it non-mandatory would only introduce additional 
confusion about what is or is not to be entered into the records. As a 
result, the mechanism OSHA will use to update or modify the first aid 
list will be to pursue a future rulemaking, if and when such a 
rulemaking is needed. OSHA will continue to issue letters of 
interpretation to help employers understand the requirements as they 
apply to specific situations.
Paragraph 1904.7(b)(6)  Loss of Consciousness
    The final rule, like the former rule, requires the employer to 
record any work-related injury or illness resulting in a loss of 
consciousness. The recording of occupational injuries and illnesses 
resulting in loss of consciousness is clearly required by Sections 8(c) 
and 24 of the OSH Act. The new rule differs from the former rule only 
in clearly applying the loss of consciousness criterion to illnesses as 
well as injuries. Since the former rule required the recording of all 
illnesses, illnesses involving loss of consciousness were recordable, 
and thus OSHA expects that this clarification will not change recording 
practices. Thus, any time a worker becomes unconscious as a result of a 
workplace exposure to chemicals, heat, an oxygen deficient environment, 
a blow to the head, or some other workplace hazard that causes loss of 
consciousness, the employer must record the case.
    Very few commenters addressed the issue of loss of consciousness. 
Three commenters asked OSHA to make sure that these cases are not 
recordable unless they are the result of a work-related injury or 
illness (see, e.g., Exs. 15: 102, 159, 176). The American Frozen Food 
Institute (AFFI) stated that ``[l]oss of consciousness should not be 
reported unless it is the clear result of a work related injury or 
illness'' (Ex. 15: 102). The Chemical Manufacturers Association added 
``OSHA must clearly indicate in the final recordkeeping rule that loss 
of consciousness must be induced by an occupational exposure. For 
example, if someone faints at work due to pregnancy or has an epileptic 
seizure, such loss of consciousness should not be recordable'' (Ex. 15: 
176).
    OSHA agrees with these commenters that, in order to be a recordable 
event, a loss of consciousness must be the result of a workplace event 
or exposure. Loss of consciousness is no different, in this respect, 
from any other injury or illness. The exceptions to the presumption of 
work-relationship at Sec. 1904.5(b)(2)(ii) allow the employer to 
exclude cases that ``involve signs or symptoms that surface at work but 
result solely from a non-work-related event or exposure that occurs 
outside the work environment.'' This exception allows the employer to 
exclude cases where a loss of consciousness is due solely to a personal 
health condition, such as epilepsy, diabetes, or narcolepsy.
    The American Crystal Sugar Company (Ex. 15: 363) raised the issue 
of phobias resulting in loss of consciousness:

    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.

    The final rule does not contain an exception for loss of 
consciousness associated with phobias or first aid treatment. OSHA 
notes, however, that the exception at paragraph 1904.5(b)(2)(iii) 
allows the employer to rebut the presumption of work relationship if 
``the injury or illness results solely from voluntary participation in 
a wellness program or in a medical, fitness, or recreational activity 
such as blood donation, physical, flu shot, exercise class, 
racquetball, or baseball.'' This exception would eliminate the 
recording of fainting episodes involving voluntary vaccination 
programs, blood donations and the like. However, episodes of fainting 
from mandatory medical procedures such as blood tests mandated by OSHA 
standards, mandatory physicals, and so on would be considered work-
related events, and would be recordable on the Log if they meet one or 
more of the recording criteria. Similarly, a fainting episode involving 
a phobia stemming from an event or exposure in the work environment 
would be recordable.
    The Union Carbide Corporation (Ex. 15: 396) asked OSHA to be more 
precise about the definition of loss of consciousness, stating that 
``[m]ost people generally understand this term without a definition, 
but it can be open to interpretation. For example, is `feeling woozy' 
for a few seconds considered to be a loss of consciousness? Perhaps 
OSHA should define the term to avoid any confusion.'' In this final 
rule, OSHA has not included a separate definition for the term ``loss 
of consciousness.'' However, the language of paragraph 1904.7(b)(6) has 
been carefully crafted to address two issues. First, the paragraph 
refers to a worker becoming ``unconscious,'' which means a complete 
loss of consciousness and not a sense of disorientation, ``feeling 
woozy,'' or a other diminished level of awareness. Second, the final 
rule makes it clear that loss of consciousness does not depend on the 
amount of time the employee is unconscious. If the employee is rendered 
unconscious for any length of time, no matter how brief, the case must 
be recorded on the OSHA 300 Log.
Paragraph 1904.7(b)(7)  Recording Significant Work-Related Injuries and 
Illnesses Diagnosed by a Physician or Other Licensed Health Care 
Professional
    Paragraph 1904.7(b)(7) of this final rule requires the recording of 
any significant work-related injury or illness diagnosed by a physician 
or other licensed health care professional. Paragraph 1904.7(b)(7) 
clarifies which significant, diagnosed work-related injuries and 
illnesses OSHA requires the employer to record in those rare cases 
where a significant work-related injury or illness has not triggered 
recording under one or more of the general recording criteria, i.e, has 
not resulted in death, loss of consciousness, medical treatment beyond 
first aid, restricted work or job transfer, or days away from work. 
Based on the Agency's prior recordkeeping experience, OSHA believes 
that the great majority of significant occupational injuries and 
illnesses will be captured by one or more of the other general 
recording criteria in Section 1904.7. However, OSHA has found that 
there is a limited class of significant work-related injuries and 
illnesses that may not be captured under the other Sec. 1904.7 
criteria. Therefore, the final rule stipulates at paragraph 
1904.7(b)(7) that any significant work-related occupational injury or 
illness that is not captured by any of the general recording criteria 
but is diagnosed by a physician or other licensed health care 
professional be recorded in the employer's records.
    Under the final rule, an injury or illness case is considered 
significant if it is a work-related case involving occupational cancer 
(e.g., mesothelioma), chronic irreversible disease (e.g., chronic 
beryllium disease), a fractured or cracked bone (e.g., broken arm, 
cracked rib), or a punctured

[[Page 5995]]

eardrum. The employer must record such cases within 7 days of receiving 
a diagnosis from a physician or other licensed health care professional 
that an injury or illness of this kind has occurred. As explained in 
the note to paragraph 1904.7(b)(7), OSHA believes that the great 
majority of significant work-related injuries and illnesses will be 
recorded because they meet one or more of the other recording criteria 
listed in Sec. 1904.7(a): death, days away from work, restricted work 
or job transfer, medical treatment beyond first aid, or loss of 
consciousness. However, there are some significant injuries, such as a 
punctured eardrum or a fractured toe or rib, for which neither medical 
treatment nor work restrictions may be administered or recommended.
    There are also a number of significant occupational diseases that 
progress once the disease process begins or reaches a certain point, 
such as byssinosis, silicosis, and some types of cancer, for which 
medical treatment or work restrictions may not be recommended at the 
time of diagnosis, although medical treatment and loss of work 
certainly will occur at later stages. This provision of the final rule 
is designed to capture this small group of significant work-related 
cases. Although the employer is required to record these illnesses even 
if they manifest themselves after the employee leaves employment 
(assuming the illness meets the standards for work-relatedness that 
apply to all recordable incidents), these cases are less likely to be 
recorded once the employee has left employment. OSHA believes that 
work-related cancer, chronic irreversible diseases, fractures of bones 
or teeth and punctured eardrums are generally recognized as 
constituting significant diagnoses and, if the condition is work-
related, are appropriately recorded at the time of initial diagnosis 
even if, at that time, medical treatment or work restrictions are not 
recommended.
    As discussed in the Legal Authority section, above, OSHA has 
modified the Agency's prior position so that, under the final rule, 
minor occupational illnesses no longer are required to be recorded on 
the Log. The requirement pertaining to the recording of all significant 
diagnosed injuries and illnesses in this paragraph of the final rule, 
on the other hand, will ensure that all significant (non-minor) 
injuries and illnesses are in fact captured on the Log, as required by 
the OSH Act. Requiring significant cases involving diagnosis to be 
recorded will help to achieve several of the goals of this rulemaking. 
First, adherence to this requirement will produce better data on 
occupational injury and illness by providing for more complete 
recording of significant occupational conditions. Second, this 
requirement will produce more timely records because it provides for 
the immediate recording of significant disorders on first diagnosis. 
Many occupational illnesses manifest themselves through gradual onset 
and worsening of the condition. In some cases, a worker could be 
diagnosed with a significant illness, such as an irreversible 
respiratory disorder, not be given medical treatment because no 
effective treatment was available, not lose time from work because the 
illness was not debilitating at the time, and not have his or her case 
recorded on the Log because none of the recording criteria had been 
met. If such a worker left employment or changed employers before one 
of the other recording criteria had been met, this serious occupational 
illness case would never be recorded. The requirements in paragraph 
1904.7(b)(7) remedy this deficiency and will thus ensure the capture of 
more complete and timely data on these injuries and illnesses.
    The provisions of paragraph 1904.7(b)(7) are an outgrowth of 
Appendix B of the proposed rule, which included provisions for the 
recording of individual conditions, such as blood lead levels, 
musculoskeletal disorders, and various respiratory ailments. As OSHA 
explained in the preamble to the proposed rule (61 FR 4039-4042), the 
proposed requirements were intended to ensure the recording of 
significant non-fatal cases that did not meet the general criteria 
(days away, restricted work, medical treatment, etc.).
    Proposed Appendix B has not been included in the final rule, which 
instead includes additional separate criteria for several of the 
conditions proposed to be included in Appendix B; these criteria, which 
cover tuberculosis cases, hearing loss cases, and so on, appear in the 
final rule at Sec. 1904.8 through Sec. 1904.12. The requirements at 
paragraph 1904.7(b)(7) of the final rule, which require the recording 
of significant injuries and illnesses not meeting one or more of the 
general recording criteria, will ensure the recording of the small 
number of significant conditions that would have been covered by 
proposed Appendix B and are not elsewhere addressed in the final rule. 
Thus, OSHA believes that cases involving the conditions listed in 
proposed Appendix B will be captured either by the requirements in this 
significant diagnosed case section or by the other general recording 
criteria.
    In developing the text of paragraph 1904.7(b)(7) of the final rule, 
OSHA reviewed the following questions as they related to proposed 
Appendix B. Each of these questions, and the comments received, are 
discussed in greater detail below: (1) Are additional recording 
criteria beyond loss of consciousness, medical treatment, restricted 
work, job transfer, days away, or death needed in the final rule?; (2) 
if so, should these additional criteria address a finite list of 
specific conditions or address a broader range of disorders?; (3) how 
should the agency define ``significant'' injuries and illnesses?; and 
(4) how should the final rule ensure the work-relatedness of these 
cases?
Are Additional Recording Criteria Needed?
    Many commenters viewed proposed Appendix B as an unnecessary 
addition to the other general recording criteria and argued that OSHA 
should use the general criteria listed in the OSH Act itself for most 
if not all of the listed conditions (see, e.g., Exs. 15: 52, 146, 200, 
203, 219, 260, 262, 265, 271, 272, 303, 313, 329, 348, 352, 353, 368, 
401, 427). For example, the Atlantic Richfield Company (ARCO) stated 
that:
    [t]his broadening of the recordability criteria particularly as 
detailed in [proposed] mandatory Appendix B dilutes the significant 
data with marginal data and does not, in our view, fit with OSHA's 
stated goals for improved Log accuracy and utility. ARCO believes 
that for almost all of these specific exposures, the appropriate 
data can be captured through the normal performance criteria of 
whether the condition or exposure has caused a day away from work, 
restriction on activity, or resulted in medical treatment. It is, 
therefore, our opinion that Appendix B is unnecessary and 
appropriate for deletion (Ex. 15: 329).

    However, other commenters saw a need for and supported the 
inclusion of additional recording criteria in the final rule (see, 
e.g., Exs. 15: 201, 301, 304, 318). For example, the National 
Federation of Independent Business (NFIB) agreed that ``[t]here are 
some conditions which are serious enough to be recorded, but could 
escape the proposed recordkeeping criteria of medical treatment, 
restricted or loss workdays or job transfer'' (Ex. 15: 304). 
Caterpillar agreed ``[w]ith the basic concept proposed in Appendix B 
that additional guidelines are needed to capture some injuries and 
illnesses serious enough to be recorded, which may not be captured by 
the basic recordkeeping criteria'' (Ex. 15: 201).
    OSHA agrees with those commenters who supported the inclusion in 
the final rule of an additional mechanism to ensure the capture of 
significant work-related injuries and illnesses that are diagnosed by a 
physician or other licensed health care professional but do

[[Page 5996]]

not, at least at the time of diagnosis, meet the criteria of death, 
days away from work, restricted work or job transfer, medical treatment 
beyond first aid, or loss of consciousness. The recording of all non-
minor injuries and illnesses is consistent with the OSH Act (see the 
Legal Authority section) and has been the intent of the recordkeeping 
system for many years. The primary goal of the requirement at paragraph 
1904.7(b)(7) is to produce more accurate and complete data on non-minor 
work-related injuries and illnesses. Because the number of significant 
work-related injuries and illnesses may not be captured by one or more 
of the other general recording criteria, OSHA finds that this 
additional criterion is needed. However, OSHA believes that most cases 
will be captured by the general recording criteria.
Should Additional Criteria Address a Finite List of Specific Conditions 
or Address a Broader Range of Disorders?
    Proposed Appendix B was composed of a finite list of disorders and 
their associated recording criteria. A number of commenters were 
concerned that an inclusive list would overlook other conditions that 
did not meet the general recording criteria and were not included in 
proposed Appendix B. For example, OxyChem wrote:

    [f]or example, aniline is a substance having specific effects 
from occupational exposure, but it is not listed in Appendix B. How 
will occupational illness cases related to aniline be treated? Under 
OSHA's proposal, employers will apply the general recordability 
criteria to make a decision, and the case will very likely not be 
recorded unless it involves medical treatment, loss of 
consciousness, etc. (Ex. 15: 386)

    This issue was also raised by the International Chemical Workers, 
who wrote that ``[a]ppendix B limits the types of illnesses which are 
recordable. It needs to be textually and visually clear that this list 
is not an all inclusive list of recordable illnesses `` (Ex. 15: 415). 
Additionally, the American Industrial Hygiene Association had the 
following thoughts on this subject:

    [a]n addition should be made to the end of Appendix B to clarify 
and expand on the recording of new or emerging occupational 
illnesses as introduced by OSHA in Appendix B, second paragraph at 
the end of page 4063: ``Conditions not included in this Appendix 
that otherwise meet the criteria in the Sec. 1904.4.(c) must be 
recorded.'' Medical diagnoses, including laboratory and diagnostic 
tests should be the principal criteria for recording occupational 
illnesses.
    The above quotation ``Conditions not included in this Appendix * 
* * must be recorded'' should be reworded to include the statement 
``including symptomology with a clear workplace link'' (Ex. 15: 
153).

    OSHA generally agrees with these points. Limiting the recording of 
non-minor occupational injuries and illnesses to a finite list runs 
counter to the goal of this rule, which is to capture comprehensive 
data on all non-minor work-related injuries and illnesses, and thus 
including such a list would not meet the Agency's statutory mandate to 
collect such data. OSHA believes there will be very few injuries and 
illnesses that are not captured by the general recording criteria. For 
example, non-minor acute illnesses, such as the skin disorders 
potentially associated with aniline exposure, will be captured by the 
other criteria, particularly medical treatment beyond first aid, 
restricted work or job transfer, or days away from work. However, to 
address the gap in case capture presented by significant injury and 
illness cases that escape the general recording criteria, OSHA is 
requiring employers to record cases of chronic, irreversible disease 
under the Sec. 1904.7(b)(7) criterion. This means that if long-term 
workplace exposure to aniline results in a chronic, irreversible liver 
or kidney disease, the case would be recordable at the time of 
diagnosis, even if no medical treatment is administered at that time 
and no time is lost from work. The regulatory text of paragraph 
1904.7(b)(7) limits the types of conditions that are recordable, 
however, to significant diagnosed injury and illness cases, which are 
defined as cancer, chronic irreversible diseases, fractured or cracked 
bones, and punctured eardrums.
How Should the Agency Define ``Significant'' Injury or Illness?
    Although there was considerable support in the record for the final 
rule to include a list of conditions that might not be captured under 
the general recordkeeping criteria, there was far less agreement among 
commenters on the specific conditions that should be listed. Many 
commenters agreed with Amoco, which testified that ``[t]he criteria 
currently listed in the proposed rule would require recording of signs, 
symptoms and laboratory abnormalities; situations which are not 
disabling, serious, or significant'' (Ex. 22). Waste Management, Inc., 
commented that ``[t]he definition of an illness [in the proposal] or 
injury refers to an adverse change in the individual. This is 
interpreted to mean a change which is permanent or a change which is 
clinically demonstrable to be adverse to the individual as a result of 
occupational exposure in the workplace. Some of the guidance provided 
in Appendix B does not meet these criteria'' (Ex. 15: 389). The 
Chemical Manufacturers Association suggested that only those conditions 
``[w]hose seriousness is approximately equal to that of conditions 
captured by traditional criteria'' be included in Appendix B (Ex. 15: 
301), and the Dupont Company proposed that the conditions listed in 
Appendix B ``[i]nclude only situations that cause a permanent change to 
the body structure where medical treatment may not be given'' (Ex. 15: 
348). Dupont also stated that ``[O]SHA should provide scientific 
evidence that a change in a lab reading [laboratory tests results were 
also included in proposed Appendix B] is the equivalent of a serious or 
significant change to the body structure'' (Ex. 15: 348). Other 
commenters such as the Marathon Oil Company questioned whether OSHA had 
the legal authority ``[t]o require employers to record these non-
serious exposures. The OSHA proposed criteria do not represent serious, 
significant or disabling injuries/illnesses as required by Section 
24(a) of the Act'' (Ex. 15: 308).
    OSHA believes that the conditions that are required to be recorded 
under Sec. 1904.7(b)(7) of the final rule represent significant 
occupational injuries and illnesses as described in the OSH Act. Some 
clearly significant injuries or illnesses are not amenable to medical 
treatment, at least at the time of initial diagnosis. For example, a 
fractured rib, a broken toe, or a punctured eardrum are often, after 
being diagnosed, left to heal on their own without medical treatment 
and may not result in days away from work, but they are clearly 
significant injuries. Similarly, an untreatable occupational cancer is 
clearly a significant injury or illness. The second set of conditions 
identified in paragraph 1904.7(b)(7), chronic irreversible diseases, 
are cases that would clearly become recordable at some point in the 
future (unless the employee leaves employment before medical treatment 
is provided), when the employee's condition worsens to a point where 
medical treatment, time away from work, or restricted work are needed. 
By providing for recording at the time of diagnosis, paragraph 
1904.7(b)(7) of the final rule makes the significant, work-related 
condition recordable on discovery, a method that ensures the collection 
of timely data. This approach will result in better injury and illness 
data and also is likely to be more straightforward for employers to 
comply with, since there is no further need to track the case to

[[Page 5997]]

determine whether, and at what point, it becomes recordable.
    The core of the recording requirement codified at Sec. 1904.7(b)(7) 
is the employer's determination that a ``significant'' injury or 
illness has been diagnosed. The Agency's former Recordkeeping 
Guidelines addressed this issue in interpretations about ``non minor'' 
injuries that did not meet the general recording criteria of death, 
days away, restricted work, transfer to another job, medical treatment 
or loss of consciousness. The Guidelines stated (Ex. 2, p. 42) that:

    The distinction between medical treatment and first aid depends 
not only on the treatment provided, but also on the severity of the 
injury being treated. First aid is: (1) Limited to one-time 
treatment and subsequent observation; and (2) involves treatment of 
only minor injuries, not emergency treatment of serious injuries. 
Injuries are not minor if:
    (a) They must be treated only by a physician or licensed medical 
personnel;
    (b) They impair bodily function (i.e., normal use of senses, 
limbs, etc.);
    (c) They result in damage to the physical structure of a 
nonsuperficial nature (e.g., fractures); or
    (d) They involve complications requiring followup medical 
treatment.

    Many commenters on the proposal simply stated that the system must 
include all serious, significant or disabling injuries, and exclude 
cases that did not rise to that level (see, e.g., Exs. 25; 15: 55, 135, 
144, 154, 158, 162, 165, 193, 201, 206, 207, 211, 212, 220, 228, 238, 
240, 243, 252, 253, 257, 258, 261, 264, 267, 272, 274, 276, 286, 293, 
303, 305, 306, 309, 318, 320, 346, 354, 358, 365, 368, 375, 382, 383, 
395, 397, 408, 412, 420, 421, 427, 434). The comments of the American 
Petroleum Institute (API) reflect this view: ``[A]PI is strongly 
opposed to any provision which would require a case to be recorded 
which is not serious or which is not likely to become serious. API 
strongly disagrees that non-serious subjective signs, symptoms, 
abnormal health test results, or evidence of exposure in and of 
themselves should be recorded on the OSHA log--unless the case 
otherwise meets one of the traditional criteria (e.g., medical 
treatment, et al.) or results in, or is expected to result in a serious 
impairment'' (Ex. 15: 375).
    Many comments believed that the recordability of occupational 
illnesses should rely on the diagnosis of a health care professional. 
For example, the U.S. Small Business Administration recommended that 
``[a] recordable incident under the [proposed] `Specific Conditions' 
should be subject to a health care provider's clinical diagnosis'' (Ed. 
15: 67); Fort Howard recommended that ``[t]he Company disagrees with 
the [proposed] Mandatory Appendix B concept particularly in light of 
the statement in the Proposal that an employer can not rely solely on 
the clinical diagnosis of an injury or illness by a physician. Fort 
Howard recommends that an employer be allowed to specifically rely on 
the conclusions of those trained in this field, namely physicians'' 
(Ex. 15: 194); and Country Mark Cooperative recommended that `` [i]f an 
illness is diagnosed by a medical provider as linked to the cause 
agent, then it would be recorded as 'otherwise recordable' until such 
time as other recordable criteria are met such as days unable to work'' 
(Ex. 15: 9). BASF commented that ``[proposed] Appendix B should not 
require the recording of merely signs, symptoms, or laboratory 
abnormalities. Instead, it should also include objective findings or 
observations on the part of health care providers regarding the 
diagnosis of a serious illness or effect not otherwise subject to 
recording requirements'' (Ex. 15: 403).
    Only a few commenters suggested methods for differentiating between 
serious and non-serious cases, in the context of conditions that should 
be listed in the final rule (see, e.g., Exs. 15: 135, 176, 193, 199, 
258, 375, 396). The API suggested that, if OSHA identifies a need to 
define ``disabling, serious or significant'' explicitly, the Agency 
should consider the following criteria:

    [a]ny other case which results in a serious impairment or 
significant injury for which no effective treatment exists, or
    involves a diagnosis of a condition which in time is expected to 
result in a serious impairment (or death), e.g., certain asbestos-
related diseases; or
    involves evidence of a chemical exposure at biological levels 
where criteria in an OSHA standard requires medical removal (Ex. 15: 
375).

    Elsewhere in their comments, the API recommended criteria for 
selecting which conditions would be listed in proposed Appendix B as 
follows:

    [t]he purpose of this appendix [proposed Appendix B] is to 
provide for the mandatory recording of occupational injuries and 
illnesses which are also serious or significant--but which do not 
immediately result in medical treatment, restricted work * * *
    Such cases fall into three broad categories. They occur when the 
injury or illness either
    Results in a serious impairment (unable to perform any normal 
life activity such as walking, eating, thinking, talking, breathing, 
seeing, smelling, hearing, driving a car. Incontinence and impotence 
would also be included)
    Involves a diagnosis of a condition which in time is expected to 
result in serious impairment (or death), e.g. certain asbestos 
related diseases,
    or
    Involved evidence of a chemical exposure at biological levels 
where criteria in an OSHA standard requires medical removal (Ex. 15: 
375).

    Adapto, Inc. (Ex. 15: 258) focused on the major life activity 
concept, stating that:

    [a]s mentioned previously, Congress intended that the 
statistical data compiled under this rule be limited to cases 
involving disabling, serious, or significant injuries or illness. 
Adapto, Inc. believes this phrase generally refers to a work-related 
condition that results in a physical or mental impairment that 
substantially limits a major life activity.

    Union Carbide (Ex. 15: 396) urged that the following factors be 
used for determining the conditions that should be included in the 
final rule:

    Serious illnesses caused by exposures which are chronic and 
cumulative in nature
    Serious illnesses with a long latency period between exposure 
and recognition of the significant illness condition
    Serious illnesses which are likely to result in significant 
impairment
    Serious illnesses without a known or widely recognized medical 
treatment until advanced stages.

    The Chemical Manufacturing Association (Ex. 15: 176) restated the 
same factors articulated by Union Carbide and added another factor: 
``[s]erious illnesses that are not treatable.'' The NYNEX Corporation 
(Ex. 15: 199), the National Broiler Council (NBC), and the National 
Turkey Federation (Ex. 15: 193), in identical comments, focused on the 
idea of cases with an expectation of serious impairment or death, 
stating:

    [w]e do recognize, however, that there are some cases that do 
not meet this criteria that do have the expectation of resulting in 
serious impairment or even death. We are in agreement that cases of 
this potential seriousness should be recorded when they are 
diagnosed by a competent physician or medical professional as work-
related.

    The Macon Corporation (Ex. 15: 135) suggested using a material 
impairment test, suggesting that ``[w]e need to establish an effective 
system for the collection of data on serious work related injuries and 
illnesses which, at the time of recording, represent a material 
impairment to the health or functional capacity [of the injured or ill 
worker].'' OSHA has not adopted the material impairment alternative in 
the final rule because the term has specific meaning in the context of 
OSHA rulemaking. Section 6(b)(5) of the Act,

[[Page 5998]]

which sets forth the criteria for promulgating standards dealing with 
toxic substances or harmful physical agents, states that OSHA shall 
``set the standard which most adequately assures, to the extent 
feasible, on the basis of the best available evidence, that no employee 
will suffer material impairment of health or functional capacity even 
if such employee has regular exposure to the hazard dealt with by such 
standard for the period of his working life (emphasis added).'' OSHA 
believes that use of this term in the recordkeeping rule could cause 
confusion among employers.
    In the final rule, OSHA has adopted an approach similar to that 
suggested by the American Petroleum Institute, i.e., focusing on two 
types of injury and illness: those that may be essentially untreatable, 
at least in the early stages and perhaps never (fractured and cracked 
bones, certain types of occupational cancer, and punctured eardrums) 
and those expected to progressively worsen and become serious over time 
(chronic irreversible diseases). The final rule is also responsive to 
the many commenters who urged OSHA to adopt a definition of severity 
for this requirement that would include all serious and significant 
injuries and illnesses, while excluding less serious cases. The 
language of paragraph 1904.(b)(7) of the final rule also responds to 
comments presented by commenters on the proposal who argued that 
relying on test results or other measures as indicators of serious 
occupational injury or illness was inappropriate. Instead, the final 
rule relies exclusively on the diagnosis of a limited class of injuries 
and illnesses by a physician or other licensed health care 
professional.
Clarifying That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work 
Related
    A number of commenters on the proposal expressed concern that 
proposed Appendix B was not clear enough about the fact that conditions 
must be work-related to be recordable on the OSHA forms. For example, 
several commenters asked OSHA to make sure that recordable cases of 
asthma are work-related (see, e.g., Exs. 15: 38, 78, 80, 83, 89, 105, 
157, 163, 188, 197, 203, 239, 279, 281, 297, 299, 302, 337, 345, 378, 
395, 414). The Jewel Coal and Coke Company (Ex. 15: 281) stated that 
``[asthma, in nearly all cases, is genetic and, to be recordable, we 
feel must be a direct result of something in the working OSHA 
environment. To require anything else would cause the unnecessary 
recording of cases of genetic asthma with no relationship to the 
working environment and would serve no purpose other than to balloon 
the statistics.''
    OSHA wishes to reiterate that any condition that is recordable on 
the OSHA injury and illness recordkeeping forms must be work-related, 
and Sec. 1904.7(b)(7) includes the term ``work-related'' to make this 
fact clear. In addition, because the employer will be dealing with a 
physician or other licensed health care professional, he or she may 
also be able to consult with the health care professional about the 
work-relatedness of the particular case. If the employer determines, 
based either on his or her own findings or those of the professional, 
that the symptoms are merely arising at work, but are caused by some 
non-work illness, then the case would not be recorded, under exception 
(b)(2)(ii) to the work-relatedness presumption at Sec. 1904.5(b)(2) of 
the final rule. Similarly, if workplace events or exposures contributed 
only insignificantly to the aggravation of a worker's preexisting 
condition, the case need not be recorded under Sec. 1904.5(a) and 
Sec. 1904.5(b)(3) of the final rule.
    The provisions of Sec. 1904.7(b)(7) of the final rule thus meet the 
objectives of (1) capturing significant injuries and illnesses that do 
not meet the other general recording criteria of death, days away from 
work, restricted work or job transfer, medical treatment beyond first 
aid, or loss of consciousness; (2) excluding minor injuries and 
illnesses; (3) addressing a limited range of disorders; and (4) making 
it clear that these injuries and illnesses must be work-related before 
they must be recorded.

Section 1904.8 Additional Recording Criteria for Needlestick and Sharps 
Injuries

    Section 1904.8 of the final rule being published today deals with 
the recording of a specific class of occupational injuries involving 
punctures, cuts and lacerations caused by needles or other sharp 
objects contaminated or reasonably anticipated to be contaminated with 
blood or other potentially infectious materials that may lead to 
bloodborne diseases, such as Acquired Immunodeficiency Syndrome (AIDs), 
hepatitis B or hepatitis C. The final rule uses the terms 
``contaminated,'' ``other potentially infectious material,'' and 
``occupational exposure'' as these terms are defined in OSHA's 
Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries are of 
special concern to healthcare workers because they use needles and 
other sharp devices in the performance of their work duties and are 
therefore at risk of bloodborne infections caused by exposures 
involving contaminated needles and other sharps. Although healthcare 
workers are at particular risk of bloodborne infection from these 
injuries, other workers may also be at risk of contracting potentially 
fatal bloodborne disease. For example, a worker in a hospital laundry 
could be stuck by a contaminated needle left in a patient's bedding, or 
a worker in a hazardous waste treatment facility could be 
occupationally exposed to bloodborne pathogens if contaminated waste 
from a medical facility was not treated before being sent to waste 
treatment.
    Section 1904.8(a) requires employers to record on the OSHA Log all 
work-related needlestick and sharps injuries involving objects 
contaminated (or reasonably anticipated to be contaminated) with 
another person's blood or other potentially infectious material (OPIM). 
The rule prohibits the employer from entering the name of the affected 
employee on the Log to protect the individual's privacy; employees are 
understandably sensitive about others knowing that they may have 
contracted a bloodborne disease. For these cases, and other types of 
privacy concern cases, the employer simply enters ``privacy concern 
case'' in the space reserved for the employee's name. The employer then 
keeps a separate, confidential list of privacy concern cases with the 
case number from the Log and the employee's name; this list is used by 
the employer to keep track of the injury or illness so that the Log can 
later be updated, if necessary, and to ensure that the information will 
be available if a government representative needs information about 
injured or ill employees during a workplace inspection (see 
Sec. 1904.40). The regulatory text of Sec. 1904.8 refers recordkeepers 
and others to Sec. 1904.29(b)(6) through Sec. 1904.29(b)(10) of the 
rule for more information about how to record privacy concern cases of 
all types, including those involving needlesticks and sharps injuries. 
The implementation section of Sec. 1904.8(b)(1) defines ``other 
potentially infectious material'' as it is defined in OSHA's Bloodborne 
Pathogens Standard (29 CFR Sec. 1910.1030, paragraph (b)). Other 
potentially infectious materials include (i) human bodily fluids, human 
tissues and organs, and (ii) other materials infected with the HIV or 
hepatitis B (HBV) virus such as laboratory cultures or tissues from 
experimental animals. (For a complete list of OPIM, see paragraph (b) 
of 29 CFR 1910.1030.)

[[Page 5999]]

    Although the final rule requires the recording of all workplace cut 
and puncture injuries resulting from an event involving contaminated 
sharps, it does not require the recording of all cuts and punctures. 
For example, a cut made by a knife or other sharp instrument that was 
not contaminated by blood or OPIM would not generally be recordable, 
and a laceration made by a dirty tin can or greasy tool would also 
generally not be recordable, providing that the injury did not result 
from a contaminated sharp and did not meet one of the general recording 
criteria of medical treatment, restricted work, etc. Paragraph (b)(2) 
of Sec. 1904.8 contains provisions indicating which cuts and punctures 
must be recorded because they involve contaminated sharps and which 
must be recorded only if they meet the general recording criteria.
    Paragraph (b)(3) of Sec. 1904.8 contains requirements for updating 
the OSHA 300 Log when a worker experiences a wound caused by a 
contaminated needle or sharp and is later diagnosed as having a 
bloodborne illness, such as AIDS, hepatitis B or hepatitis C. The final 
rule requires the employer to update the classification of such a 
privacy concern case on the OSHA 300 Log if the outcome of the case 
changes, i.e., if it subsequently results in death, days away from 
work, restricted work, or job transfer. The employer must also update 
the case description on the Log to indicate the name of the bloodborne 
illness and to change the classification of the case from an injury 
(i.e., the needlestick) to an illness (i.e., the illness that resulted 
from the needlestick). In no case may the employer enter the employee's 
name on the Log itself, whether when initially recording the 
needlestick or sharp injury or when subsequently updating the record.
    The privacy concern provisions of the final rule make it possible, 
for the first time, for the identity of the bloodborne illness caused 
by the needlestick or sharps injury to be included on the Log. By 
excluding the name of the injured or ill employee throughout the 
recordkeeping process, employee privacy is assured. This approach will 
allow OSHA to gather valuable data about the kinds of bloodborne 
illnesses healthcare and other workers are contracting as a result of 
these occupational injuries, and will provide the most accurate and 
informative data possible, including the seroconversion status of the 
affected worker, the name of the illness he or she contracted, and, on 
the OSHA 301 Form for the original case, more detailed information 
about how the injury occurred, the equipment and materials involved, 
and so forth. Use of the privacy case concept thus meets the primary 
objective of this rulemaking, providing the best data possible, while 
simultaneously ensuring that an important public policy goal--the 
protection of privacy about medical matters--is met. OSHA recognizes 
that requiring employers to treat privacy cases differently from other 
cases adds some complexity to the recordkeeping system and imposes a 
burden on those employers whose employees experience such injuries and 
illnesses, but believes that the gain in data quality and employee 
privacy outweigh these disadvantages considerably.
    The last paragraph (paragraph (c)) of Sec. 1904.8 deals with the 
recording of cases involving workplace contact with blood or other 
potentially infectious materials that do not involve needlesticks or 
sharps, such as splashes to the eye, mucous membranes, or non-intact 
skin. The final recordkeeping rule does not require employers to record 
these incidents unless they meet the final rule's general recording 
criteria (i.e., death, medical treatment, loss of consciousness, 
restricted work or motion, days away from work, diagnosis by an HCP) or 
the employee subsequently develops an illness caused by bloodborne 
pathogens. The final rule thus provides employers, for the first time, 
with regulatory language delineating how they are to record injuries 
caused by contaminated needles and other sharps, and how they are to 
treat other exposure incidents (as defined in the Bloodborne Pathogens 
standard) involving blood or OPIM. ``Contaminated'' is defined just as 
it is in the Bloodborne Pathogens standard: ``Contaminated means the 
presence or the reasonably anticipated presence of blood or other 
potentially infectious materials on an item or surface.''
    Before issuance of this final recordkeeping rule, the OSHA 
compliance directive CPL 2-2.44C for the Bloodborne Pathogens standard, 
``Enforcement Procedures for the Occupational Exposure to Bloodborne 
Pathogens Standard, 29 CFR 1910.1030'' provided recording guidance to 
employers of occupationally exposed employees. The CPL 2-2.44C guidance 
treated cuts, lacerations and exposure incidents identically, 
classifying all of the events as injuries because they usually result 
from instantaneous events or exposures. The employer was required to 
record an incident when it met one of the following requirements:

    1. The incident is a work-related injury that involves loss of 
consciousness, transfer to another job, or restriction of work or 
motion.
    2. The incident results in the recommendation of medical 
treatment beyond first aid (e.g., gamma globulin, hepatitis B immune 
globulin, hepatitis B vaccine, or zidovudine) regardless of dosage.
    3. The incident results in a diagnosis of seroconversion. The 
serological status of the employee shall not be recorded on the OSHA 
200. If a case of seroconversion is known, it shall be recorded on 
the OSHA 200 as an injury (e.g., ``needlestick'' rather than 
``seroconversion'') in the following manner:
    a. If the date of the event or exposure is known, the original 
injury shall be recorded with the date of the event or exposure in 
column B.
    b. If there are multiple events or exposures, the most recent 
injury shall be recorded with the date that seroconversion is 
determined in column B.

    In 1999, OSHA updated CPL 2-2.44 and changed this language to 
simply refer to the Part 1904 regulation, in anticipation of the 
publication of this final recordkeeping rule.
The proposal
    In the 1996 Federal Register notice, OSHA proposed recording 
criteria for needlestick and sharps injuries that were the same as the 
criteria being set forth in this final rule. The requirements in the 
final rule have been stated in slightly different language from those 
in the proposal to be consistent with the format of the remainder of 
the rule. The only substantive difference between the approach taken in 
the proposal and that in the final rule is the way that cases are 
handled to protect the privacy of the injured or ill worker. Appendix B 
of the proposed rule (61 FR 4065) included requirements to record the 
following:

    ``any workplace bloodborne pathogen exposure incident (as 
defined in 1910.1030(b)) that results in a positive blood test or 
diagnosis by a health care provider indicating AIDS, HIV 
seroconversion, hepatitis B or hepatitis C.
    OR
    any laceration or puncture wound that involves contact with 
another person's blood or other potentially infectious materials.

    Note: to protect employee confidentiality, employers shall 
record occupationally acquired bloodborne pathogen diseases, such as 
hepatitis B, simply as the initial bloodborne exposure incident and 
note the exposure type (e.g. needlestick). Seroconversion and 
specific type of bloodborne disease shall not be recorded.''


    OSHA explained in its proposal that recording these incidents was 
appropriate because these injuries are clearly non-minor, and recording 
them would be consistent with the Agency's mandate to collect 
information related to the death, illness, and injury of workers (61 FR 
4041). OSHA then requested comment on whether it would be appropriate 
to record small puncture

[[Page 6000]]

wounds and lacerations that do not lead to disease, and whether OSHA 
should require employers to record all ``exposure incidents'' involving 
exposure to blood or OPIM, not just injuries involving contaminated 
needles and sharps. The proposal also asked for comment about the 
special privacy concerns potentially associated with bloodborne 
pathogen injuries and illnesses, and asked the following questions: 
``What data is useful to collect? Are there other criteria for the 
recording of bloodborne infectious diseases which should be considered? 
What experience do employers have in data collection systems for this 
hazard?''
    These proposed recording criteria for needlesticks and sharps 
injury cases prompted many comments to the rulemaking record. Very few 
of the comments supported OSHA's proposed position on this issue. 
Commenters either recommended recording all bloodborne pathogen 
exposure incidents or sharply limiting the recording of these events. A 
large number of commenters either objected specifically to the 
recording of all bloodborne pathogen exposure incidents or objected to 
the entire contents of proposed Appendix B (see, e.g., Exs. 15: 1, 37, 
38, 39, 44, 48, 52, 61, 66, 69, 74, 78, 82, 89, 100, 119, 121, 122, 
126, 133, 146, 151, 152, 154, 156, 179, 193, 197, 200, 201, 203, 204, 
213, 218, 219, 239, 254, 260, 262, 265, 271, 272, 277, 287, 297, 299, 
301, 303, 305, 308, 310, 313, 317, 322, 329, 335, 345, 346, 347, 348, 
349, 351, 352, 353, 361, 364, 373, 374, 375, 378, 392, 393, 395, 396, 
398, 401, 403, 405, 407, 408, 409, 425, 434, 435). The most frequent 
suggestion made by commenters was that the only criterion for recording 
bloodborne pathogen diseases should be a positive blood test or 
diagnosis by a health care professional (see, e.g., Exs. 15: 1, 38, 61, 
65, 78, 82, 119, 122, 133, 151, 152, 179, 201, 213, 260, 262, 265, 290, 
299, 301, 317, 345, 347, 373, 374, 393, 401, 407, 408, 435, 442). Many 
of the commenters who objected to recording all bloodborne incidents on 
the Log argued that these cases reflect exposure only and do not 
usually reflect cases that rise to the level of an injury or illness 
(see, e.g., Exs. 15: 44, 69, 78, 151, 152, 179, 197, 201, 239, 272, 
277, 287, 303, 308, 313, 345, 347, 348, 349, 351, 352, 353, 364, 373, 
374, 375, 386, 392, 395, 396, 403, 405, 423, 425, 442). Other 
commenters urged OSHA to consider these cases minor injuries if they do 
not result in disease (see, e.g., Exs. 15: 52, 290, 317, 403, 409, 
434). Many agreed with the comments submitted by Bellin Hospital, which 
stated ``[r]ecording of all Significant Exposures is unnecessary. 
Seroconversions after exposure, regardless of mode of exposure is 
appropriate recordkeeping only'' (Ex. 15: 38). Several commenters made 
similar points. For example, Atlantic Dry Dock (Ex. 15: 179) wrote that 
``[n]ot all contact [with blood or other potentially infectious 
materials] will result in an infection. There is no injury/illness 
unless an infection has actually resulted from the contact.''
    Some commenters suggested that only those cases that resulted in 
either medical treatment or seroconversion should be recorded on the 
Log (see, e.g., Exs. 15: 48, 100, 213, 310, 395, 416, 423), while 
others advocated recording lacerations and puncture wounds only if they 
met the rule's general recording criteria (see, e.g., Exs. 15: 52, 200, 
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401). As Bell 
Atlantic (Ex. 15: 128) commented, ``[s]erious lacerations and puncture 
wounds involving contact with bloodborne pathogens should be reported. 
But the mechanism driving such reporting is the severity of the wound 
and NOT the presence of bloodborne pathogens. Even with the absence of 
bloodborne pathogens, such serious injuries would be recorded.''
    The American Hospital Association and the Georgia Hospital 
Association expressed concern that bloodborne pathogen disease criteria 
require ``the recording of all instances of certain conditions that 
meet specific criteria, whether or not they meet OSHA's established 
criteria for recordability (work-relationship; involves medical 
treatment or death, loss of consciousness, or in-patient 
hospitalization, or days away from work restricted work activity, or 
job transfer)'' (Exs. 15: 100, 219).
    Several commenters stated that the recording of all bloodborne 
pathogen incidents would be redundant and unnecessary (see, e.g., Exs. 
15: 66, 121, 299, 322, 408, 435). Some commenters said that OSHA's 
bloodborne pathogen standard already requires recordkeeping and 
tracking of bloodborne pathogen exposure incidents (see, e.g., Exs. 
15:39, 89, 121, 310, 351, 378, 393, 405, 416), and others remarked that 
general medical records already contained adequate data (see, e.g., 
Exs. 15: 151, 152, 179).
    A number of commenters discussed the effect on injury and illness 
statistics that would be caused by recording all bloodborne pathogen 
incidents (see, e.g., Exs. 15: 39, 44, 48, 61, 66, 69, 126, 146, 151, 
152, 179, 201, 239, 287, 290, 308, 313, 329, 345, 352, 353, 364, 405). 
The Society of the Plastics Industry, Inc. (Ex. 15: 364) said that 
``Requiring recording of exposure incidents rather than actual 
illnesses will improperly inflate the statistics regarding these 
diseases.'' Patrick Tyson, a partner at Constangy, Brooks & Smith, LLC, 
(Ex. 15: 345) stated:

    In effect, the Proposed Recordkeeping Rule would include on the 
Log those exposure incidents where a medical follow-up examination 
actually rules out the resulting illness. I believe that the Logs 
should not be used in this fashion any more than they should be used 
to record incidents of high levels of workplace noise in the absence 
of actual hearing loss, or incidents of employee exposure to highly 
repetitive jobs in the absence of resulting musculo-skeletal 
disorders. Simply stated, the OSH Act does not contemplate or intend 
the recording of mere exposure incidents on the OSHA Log. To do so 
would artificially overstate the relative safety and health risk in 
the American workplace.

    On the other hand, a number of commenters recommended that OSHA 
require the recording of all bloodborne pathogen incidents as defined 
in the bloodborne pathogens standard (see, e.g., Exs. 24, 15: 72, 153, 
181, 196, 198, 289, 379, 380, 418). Several of these commenters urged 
the recording of all exposure incidents to improve the information on 
these injuries and promote better protection for workers (see, e.g., 
Exs. 24, 15: 72, 153, 181, 196, 289, 379, 380). The American 
Association of Occupational Health Nurses (AAOHN) remarked ``The 
benefit in keeping these detailed records of bloodborne pathogen 
exposures will be the ability to track the root cause of resultant 
injuries and illnesses, regardless of latency'' (Ex. 15: 181). The 
National Association of Operating Room Nurses (Ex. 15: 72) added 
``Reporting exposures may raise consciousness resulting in work 
practice changes and decreased hazard.''
    Two commenters cited the severity of these incidents as a reason 
for requiring the recording of all exposure incidents (Exs. 24; 15: 
379). The American Nurses Association based its arguments on the 
severity of the risk, stating ``While the Center for Disease Control 
and Prevention (CDC) Cooperative Needlestick Surveillance Group 
reported no seroconversions to HIV positive from mucous membrane or 
skin exposure, Hepatitis infections have been reported following 
exposures via these routes. The nature of the risk to HIV however small 
is very severe, deadly in fact; and the risk of Hepatitis is even 
greater. Because of the severity of the risk, we believe that all 
exposures must be recorded'' (Ex. 24). The Service Employees 
International Union (SEIU) added ``The lives of thousands of health

[[Page 6001]]

care workers each year are unnecessarily devastated by occupational 
exposure to hepatitis B, hepatitis C and HIV. A workplace exposure to 
blood or other potentially infectious materials represents a 
significant event in the life of a health care worker, regardless of 
whether or not the exposure results in infection with hepatitis B, 
hepatitis C or HIV'' (Ex. 15: 379).
    A few commenters remarked on the need for consistency between the 
bloodborne pathogens standard and the recordkeeping requirements (see, 
e.g., Exs. 15: 153, 198, 379). The National Association for Home Care 
(NAHC) stated ``NAHC believes that OSHA should maintain consistency 
between individual OSHA bloodborne pathogen requirements and general 
OSHA reporting requirements. Reporting of all exposure incidents is 
consistent with OSHA's bloodborne pathogen regulations for health care 
settings which require medical follow-up of employees for all exposure 
incidents'' (Ex. 15: 198).
    Several commenters suggested recording all incidents as a method 
for masking the identity of workers who actually contract disease as a 
result of their injury (see, e.g., Exs. 15: 379, 380, 418). The AFL-CIO 
(Ex. 15: 418) stated:

    The AFL-CIO believes that exposures to bloodborne pathogens pose 
a unique case with respect to confidentiality and privacy concerns. 
As the Agency has recognized in the Bloodborne Pathogen Standard, 29 
CFR 1910.1030, there are real and legitimate concerns about 
discrimination against individuals who have tested positive for HIV 
and other bloodborne infectious diseases. To address these 
legitimate confidentiality concerns, the AFL-CIO believes that a 
different approach to recording cases related to bloodborne 
pathogens is required. For these cases, we recommend that the Agency 
require the recording of needlestick injuries and all exposures to 
blood or blood contaminated body fluids on the Log 300 and on the 
301. Cases involving actual seroconversions should be recorded in 
the confidential medical record. This approach would be consistent 
with the approach and language in the bloodborne pathogen standard. 
It would permit the log to be used to track individual cases of 
exposure for prevention purposes, while at the same time maintaining 
the confidentiality of individuals whose health status had changed 
as a result of exposure. The AFL-CIO recognizes that this approach 
will require the recording of exposure incidents which do not result 
in the change of health status and sets different criteria for 
recording cases related to bloodborne pathogens. Given the unique 
confidentiality concerns associated with this set of conditions, we 
believe that this special treatment for these conditions is 
warranted.

    After a review of the many comments in the record on this issue, 
OSHA has decided to require the recording of all workplace injuries 
from needlesticks and sharp objects that are contaminated with another 
person's blood or other potentially infectious material (OPIM) on the 
OSHA Log. These cases must be recorded, as described above, as privacy 
concern cases, and the employer must keep a separate list of the 
injured employees' names to enable government personnel to track these 
cases. OSHA does not agree with those commenters who were of the 
opinion that contaminated needlestick and sharps injuries are minor 
injuries comparable in importance to a puncture by a sewing needle or 
leather punch. OSHA also disagrees with those commenters who believed 
these incidents are merely exposure incidents roughly comparable with 
exposure to loud noises. These incidents are clearly injuries, where 
the worker has experienced a cut or laceration wound.
    OSHA recognizes that these injuries are different from most 
workplace cuts and lacerations, whose seriousness depends largely on 
the size, location, jaggedness, or degree of contamination of the cut, 
which determines the need for medical treatment, restricted work, or 
time away for recuperation and thus the recordability of the incident. 
In contrast, all injuries from contaminated needles and sharps are 
serious because of the risk of contracting a potentially fatal 
bloodborne disease that is associated with them.
    Many commenters argued that needlestick and sharps injuries are not 
the kinds of injuries that Congress intended employers to record, as 
articulated in the OSH Act (see, e.g., Exs. 15: 239, 308, 313, 345, 
352, 353, 375, 395). As discussed earlier in the Legal Authority 
section, OSHA disagrees, believing that Congress mandated the recording 
of all non-minor injuries and illnesses as well as all injuries 
resulting in medical treatment or one of the other general recording 
criteria. OSHA finds that needlestick and sharps injuries involving 
blood or other potentially infectious materials are non-minor injuries, 
and therefore must be recorded. This conclusion is consistent with the 
Senate Committee on Appropriations report accompanying the fiscal year 
1999 Departments of Labor, Health and Human Services, and Education and 
Related Agencies Appropriation Bill, 1999 (S. 2440) which included the 
following language:

    Accidental injuries from contaminated needles and other sharps 
jeopardize the well-being of our Nation's health care workers and 
result in preventable transmission of devastating bloodborne 
illnesses, including HIV, hepatitis B, and hepatitis C. The 
committee is concerned that the OSHA 200 Log does not accurately 
reflect the occurrence of these injuries. The committee understands 
that the reporting and recordkeeping standard (29 CFR 1904) requires 
the recording on the OSHA 200 Log of injuries from potentially 
contaminated needles and other sharps that result in: the 
recommendation or administration of medical treatment beyond first 
aid; death, restriction of work or motion; loss of consciousness, 
transfer to another job, or seroconversion in the worker. Accidental 
injuries with potentially contaminated needles or other sharps 
require treatment beyond first aid. Therefore, the Committee urges 
OSHA to require the recording on the OSHA 200 log of injuries from 
needles and other sharps potentially contaminated with bloodborne 
pathogens (Senate Report 105-300).

OSHA finds that these injuries are significant injuries because of the 
risk of seroconversion, disease, and death, they pose (see the preamble 
to the OSHA Bloodborne Pathogens Standard at 56 FR 64004).
    OSHA recognizes that requiring the recording of all injuries from 
contaminated needles and sharps will result in more cases being 
recorded on employers' Logs and will increase the number of such 
injuries reflected in the Nation's statistics. However, the Agency does 
not agree that the statistics will be inappropriately inflated. 
Instead, OSHA believes that the statistics will henceforth include, for 
the first time, cases that reflect the incidence of these significant 
injuries accurately. Adding these cases to the Nation's statistics will 
create a more accurate accounting of work-related injury and illness 
cases, information that will be useful to employers, employees, the 
government and the public. In addition, the collection of this 
information at the establishment level will generate data employers and 
employees can use to analyze injury and illness patterns and make 
improvements in work practices and equipment. Recording these injuries 
will thus help to realize one of this rulemaking's primary goals, to 
improve the utility and quality of the information in the records.
    If OSHA were to adopt a final rule that only required the recording 
of seroconversion cases and cases that met the general recording 
criteria, as many commenters suggested (see, e.g., Exs. 15: 52, 200. 
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401), the 
Nation's statistics would not be as complete and accurate, and 
workplace records would not have the same preventive value for 
employees and employers. In addition, that approach would be more 
complex because it

[[Page 6002]]

would require employers to evaluate each case against several criteria 
before recording it. The approach taken in the final rule is 
considerably simpler. Recording all such injuries also helps to protect 
the privacy of workers who have been injured in this way. Needlestick 
and sharps injuries raise special privacy concerns. The comments on 
this subject show a universal concern for the privacy of a worker's 
medical information and disease status, and OSHA has taken several 
special precautions, discussed elsewhere in the preamble, to protect 
this privacy. Several commenters suggested recording all needlesticks 
and sharps incidents as a method for masking the identify of workers 
who actually contract disease (see, e.g., Exs. 15: 379, 380, 418). OSHA 
has adopted this practice in the final rule because recording all of 
these injuries will help to protect the privacy of individual workers 
as well as produce higher quality data.
    OSHA disagrees with those commenters who argued that the 
Sec. 1904.8 recording requirement would be duplicative or redundant 
with the requirements in the Bloodborne Pathogens standard (29 CFR 
1910.1030). That standard requires the employer to document the 
route(s) of exposure and the circumstances under which the exposure 
incident occurred, but does not require that it be recorded on the Log 
(instead, the standard requires only that such documentation be 
maintained with an employee's medical records). The standard also has 
no provisions requiring an employer to aggregate such information so 
that it can be analyzed and used to correct hazardous conditions before 
they result in additional exposures and/or infections. The same is true 
for other medical records kept by employers: they do not substitute for 
the OSHA Log or meet the purposes of the Log, even though they may 
contain information about a case that is also recorded on the Log.
    OSHA is requiring only that lacerations and puncture wounds that 
involve contact with another person's blood or other potentially 
infectious materials be recorded on the Log. Exposure incidents 
involving exposure of the eyes, mouth, other mucous membranes or non-
intact skin to another person's blood or OPIM need not be recorded 
unless they meet one or more of the general recording criteria, result 
in a positive blood test (seroconversion), or result in the diagnosis 
of a significant illness by a health care professional. Otherwise, 
these exposure incidents are considered only to involve exposure and 
not to constitute an injury or illness. In contrast, a needlestick 
laceration or puncture wound is clearly an injury and, if it involves 
exposure to human blood or other potentially infectious materials, it 
rises to the level of seriousness that requires recording. For splashes 
and other exposure incidents, the case does not rise to this level any 
more than a chemical exposure does. If an employee who has been exposed 
via a splash in the eye from the blood or OPIM of a person with a 
bloodborne disease actually contracts an illness, or seroconverts, the 
case would be recorded (provided that it meets one or more of the 
general recording criteria).
Privacy Issues
    There was support in the record for OSHA's proposal to record 
occupationally acquired bloodborne pathogen diseases simply as the 
initial bloodborne exposure incident to protect employee 
confidentiality. Eli Lilly and Company (Ex. 15: 434) commented:

    Lilly agrees with the Agency's proposed method of recording 
exposure incidents that result in disease. All of these recordable 
incidents should be recorded simply as the type of bloodborne 
exposure incident (e.g. needlestick) with no reference to the type 
of disease. While Lilly is concerned about protecting the privacy of 
every individual employee's medical information, Lilly concedes that 
the current social stigma resulting from bloodborne pathogen 
diseases demands a more simple recordkeeping requirement.

    Privacy issues, however, concerned many of the commenters to the 
rulemaking record. Metropolitan Edison/Pennsylvania Electric Company 
(M/P), for example, was so concerned with employee privacy that ``[d]ue 
to the sensitivity of Bloodborne Pathogenic diseases and related 
confidentiality concerns, M/P disagrees with recording these types of 
incidents'' (Ex. 15: 254). The American Automobile Manufacturers 
Association (AAMA), among others, expressed concern that the recording 
requirement for bloodborne pathogen diseases would discourage employees 
from reporting exposures and might also discourage individuals from 
seeking treatment. AAMA wrote:

    [m]any individuals who contract an infectious disease from a 
workplace event or exposure will be against having their names on 
the OSHA log for scrutiny by any employee or former employee of the 
establishment. To openly list (on the OSHA log) an individual with 
an infectious disease will discourage some employees from reporting 
exposures. It may also discourage individuals from seeking 
treatment, which may be lifesaving or which may limit the spread of 
the disease. We oppose the development of any system which directly 
or indirectly discourages individuals from seeking medical 
evaluation or treatment, for the sake of data collection (Ex. 15: 
409).

    The AAMA proposed as an alternative ``to remove all personal 
identifiers for infectious disease cases from the OSHA log. Some type 
of employer created coding system could be instituted, as long as the 
code was consistently applied. Authorized medical personnel and 
government representatives would be the only individuals permitted 
access to the personal identifiers and/or key to the coding system'' 
(Ex. 15: 409). The Quaker Oats Company and the Ford Motor Company 
supported similar alternatives (Exs. 15: 289, 347). A number of 
commenters specifically supported the use of a coding system (see, 
e.g., Exs. 15: 146, 213, 260, 262, 265, 345, 347, 409).
    OSHA shares these commenters' concern about the privacy of 
employees who seroconvert as the result of a bloodborne pathogens-
related needlestick or sharps incident and finds that these incidents 
are clearly the type of non-minor occupational injury and illness 
Congress intended to be included in the OSHA recordkeeping system. If 
the Agency were to exclude these cases categorically from the records, 
it would not be meeting the requirements of the OSH Act to produce 
accurate statistics on occupational death, injury and illness.
    The final recordkeeping rule addresses this issue by prohibiting 
the entry of the employee's name on the OSHA 300 Log for injury and 
illness cases involving blood and other potentially infectious 
material. Further, by requiring employers to record all needlestick and 
sharps incidents, regardless of the seroconversion status of the 
employee, coworkers and representatives who have access to the Log will 
be unable to ascertain the disease status of the injured worker. OSHA 
believes that the privacy concern case approach of the final rule 
obviates the need for a coding system because the case number assigned 
to the recorded injury will serve the purpose of a code, without adding 
additional complexity or burden. A discussion of access to the records 
is contained in the portion of the preamble associated with section 
1904.35, Employee Involvement.
    The College of American Pathologists objected to the inclusion of 
hepatitis C in the list of bloodborne pathogen diseases. They commented 
that ``the great majority of cases of hepatitis C lack any identifiable 
source of exposure. More cases of HCV infection occur among non-health 
care workers than among health care workers. To presume that an 
individual who is infected with

[[Page 6003]]

HCV acquired it on the job just because they work in a health care 
setting is unjustified'' (Ex. 15: 37). On the other hand, a commenter 
from Waukesha Memorial Hospital suggested that OSHA ``should include 
all blood borne pathogen disease that develops as a result of an 
exposure incident, not just HIV, Hep B, Hep C, even though those are 
the major players in a hospital setting. Since we must teach that there 
are many bloodborne pathogens, it doesn't make sense to me to only 
record some and not all'' (Ex. 15: 436). OSHA believes that hepatitis C 
cases should, like other illness cases, be tested for recordability 
using the geographic presumption that provides the principal rationale 
for determining work-relatedness throughout this rule. OSHA also agrees 
with the commenter from Waukesha Memorial Hospital that all bloodborne 
pathogen diseases resulting from events or exposures in the workplace 
should be recorded. Therefore, OSHA has modified the final regulatory 
text of paragraph 1904.8(b)(4)(i) to reflect this decision.

Section 1904.9 Additional Recording Criteria for Cases Involving 
Medical Removal Under OSHA Standards

    The final rule, in paragraph 1904.9(a), requires an employer to 
record an injury or illness case on the OSHA 300 Log when the employee 
is medically removed under the medical surveillance requirements of any 
OSHA standard. Paragraph 1904.9(b)(1) requires each such case to be 
recorded as a case involving days away from work (if the employee does 
not work during the medical removal) or as a case involving restricted 
work activity (if the employee continues to work but in an area where 
exposures are not present.) This paragraph also requires any medical 
removal related to chemical exposure to be recorded as a poisoning 
illness.
    Paragraph 1904.9(b)(2) informs employers that some OSHA standards 
have medical removal provisions and others do not. For example, the 
Bloodborne Pathogen Standard (29 CFR 1910.1030) and the Occupational 
Noise Standard (29 CFR 1910.95) do not require medical removal. Many of 
the OSHA standards that contain medical removal provisions are related 
to specific chemical substances, such as lead (29 CFR 1901.1025), 
cadmium (29 CFR 1910.1027), methylene chloride (29 CFR 1910.1052), 
formaldehyde (29 CFR 1910.1048), and benzene (29 CFR 1910.1028).
    Paragraph 1904.9(b)(3) addresses the issue of medical removals that 
are not required by an OSHA standard. In some cases employers 
voluntarily rotate employees from one job to another to reduce exposure 
to hazardous substances; job rotation is an administrative method of 
reducing exposure that is permitted in some OSHA standards. Removal 
(job transfer) of an asymptomatic employee for administrative exposure 
control reasons does not require the case to be recorded on the OSHA 
300 Log because no injury or illness--the first step in the 
recordkeeping process--exists. Paragraph 1904.9(b)(3) only applies to 
those substances with OSHA mandated medical removal criteria. For 
injuries or illnesses caused by exposure to other substances or 
hazards, the employer must look to the general requirements of 
paragraphs 1910.7(b)(3) and (4) to determine how to record the days 
away or days of restricted work.
    The provisions of Sec. 1904.9 are not the only recording criteria 
for recording injuries and illnesses from these occupational exposures. 
These provisions merely clarify the need to record specific cases, 
which are often established with medical test results, that result in 
days away from work, restricted work, or job transfer. The Sec. 1904.9 
provisions are included to produce more consistent data and provide 
needed interpretation of the requirements for employers. However, if an 
injury or illness results in the other criteria of Sec. 1904.7 (death, 
medical treatment, loss of consciousness, days away from work, 
restricted work, transfer to another job, or diagnosis as a significant 
illness or injury by a physician or other licensed health care 
professional) the case must be recorded whether or not the medical 
removal provisions of an OSHA standard have been met.
    The recording of OSHA mandated medical removals was not addressed 
in the 1996 recordkeeping proposal. OSHA has included the provisions of 
Sec. 1904.9 in the final rule to address a deficiency noted by a number 
of commenters, and as a replacement for criteria that were contemplated 
for the recording of various ailments in proposed Appendix B (61 FR 
4063-4065). For example, R. L. Powell, Personnel Safety Manager for 
Union Carbide Corporation, (Ex. 15: 396) asked about medical removal 
and restricted work:

    How does this criteria [restricted work] apply to ``medical 
removal?'' Medical removal is sometimes mandated by other OSHA 
standards under certain conditions. A similar technique may also be 
used by a physician to conduct controlled tests to assess the impact 
of workplace factors on a condition such as a chemical sensitivity.

    A number of commenters recommended the use of medical removal 
criteria as the correct recording level for various substances listed 
in proposed Appendix B (see, e.g., Exs. 22; 15: 113, 155, 192, 199, 
213, 242, 262, 272, 303, 304, 307, 326, 338, 340, 349). Many of these 
commenters suggested the medical removal criteria as a substitute for 
the proposed recording levels for lead and cadmium (Ex. 22; 15: 113, 
155, 192, 340, 349). For example, Newport News Shipbuilding (Ex. 15: 
113) said:

    The proposed regulation requires recording lead and cadmium 
cases based on biological action levels rather than on the onset of 
illness. The purpose of the biological action level is to identify 
those employees who are at greater risk of reaching the limits for 
medical removal, so that onset of illness may be prevented. The use 
of biological action levels as the basis of defining and recording 
illness is inappropriate. Rather, lead and cadmium cases should be 
recorded when medical removal is required by the specific standard.

    The Institute of Scrap Recycling Industries, Inc. (Ex. 15: 192) 
added:

    This [proposed] statement clearly subverts the clear intent of 
the OSHA lead standard that a blood lead level of 50 g/100 
g of whole blood and not 40 g/100 g of whole blood is the 
criteria for medical removal and therefore also the criteria for 
documentation on the OSHA injury and illness log. Had the scientific 
evidence on which the OSHA lead standard was based pointed clearly 
to 40 g/100 g of whole blood as the medical removal 
standard and therefore the standard for documentation on the OSHA 
injury and illness log the standard would have reflected this. 
Therefore it would clearly subvert the purpose and scope of the OSHA 
lead standard, that was based on scientific evidence and an 
exhaustive public comment period on the scientific data, to 
establish a clear benchmark for a recordable event on the injury and 
illness log without the benefit of supporting scientific study and 
data and a public comment period on such information.

    The Institute of Scrap Recycling Industries, Inc is incorrect about 
the lead standard's determination of recording criteria on the OSHA 
injury and illness log. The lead standard (Sec. 1910.1025) does not 
specifically address the recording issue, but the lead standard does 
address the medical removal issue. The Institute points to the benefit 
of using medical removal criteria for recording purposes, and OSHA 
agrees that these criteria are useful for recordkeeping purposes. The 
medical removal provisions of each standard were set using scientific 
evidence established in the record devoted to that rulemaking. OSHA 
takes care when setting the medical removal provisions of standards to 
ensure that these provision reflect a material harm, i.e., the 
existence of an abnormal condition that is non-minor and thus

[[Page 6004]]

worthy of entry in the OSHA injury and illness records.
    Other commenters urged OSHA to use the medical removal criteria as 
a replacement for all of proposed Appendix B. (see, e.g., Exs. 15: 199, 
213, 242, 262, 303, 304, 307, 326, 338, 375). For example, Southern 
Nuclear Operating Company (Ex. 15: 242) stated that:

    Mercury, Lead, Cadmium, Benzene: In these cases, it is 
appropriate to distinguish between biological markers that merely 
point to exposure versus those that relate to illness or disease. 
All of the recordability criteria for these substances are based on 
various ``action'' levels stated in their respective OSHA 
regulations. Southern Nuclear Operating Company believes that the 
appropriate criteria for recording these cases as illnesses should 
be the ``medical removal'' criteria stated in their respective 
regulations coupled with a physician's diagnosis of disease rather 
that the ``action'' levels as stated in the proposal. These 
``medical removal'' criteria are more indicative of disease or 
illness. If the ``action'' levels for these substances are used as 
the recording criteria, the number of illnesses recorded on the OSHA 
log would more accurately reflect the numbers of workers covered by 
a given exposure control program as opposed to the number of 
illnesses that result from an inadequate program.

    The American Petroleum Institute (API) argued that:

    API incorporates in its recommended Appendix B the recording of 
cases when medical removal is required by a specific OSHA standard. 
API concedes this is inconsistent with the concept of ``serious or 
significant''--and inconsistent with API's fundamental belief that 
actions by employers to prevent cases from becoming serious should 
not be recorded--because such medical removals are by design 
preventive; that is, intended to occur before a case becomes 
serious. However, API acknowledges that it is extremely difficult to 
define and get substantial agreement on any straight-forward and 
verifiable criteria when such cases are indeed ``serious''. 
Therefore, API has decided to recommend the medical-removal 
criterion for Appendix B as the best on-balance solution for 
situations involving toxic substance adsorption. (Ex. 15: 375)

    A number of commenters opposed the use of mandatory medical removal 
levels for injury and illness recording purposes (see, e.g., Exs. 25; 
15: 146, 193, 258, 261, 304, 305, 318, 346, 358). Many argued that the 
OSH Act did not support the use of medical removals (see, e.g., Exs. 
25; 15: 258, 261, 304, 358). For example, the National Association of 
Manufacturers (NAM) commented:

    There is no reference in Section 24(a) or Section 8(c)(2) of the 
OSH Act to recording exposure incidents that do not result in 
disabling, serious or significant injuries or illnesses; or is there 
any reference in those sections to medical removal provisions or 
other action levels that do not result in disabling, serious or 
significant injuries or illnesses. On the other hand, Section 
8(c)(3) does discuss--as a separate component of OSHA's occupational 
safety and health statistics program--maintaining records of 
employee exposures to toxic materials and harmful physical agents 
pursuant to standards issued under Section 6 of the OSH Act.
    This is a rulemaking about the statistical program for tracking 
disabling, serious or significant injuries and illnesses--nothing 
more and nothing less. We believe Congress determined that those are 
the criteria that OSHA should utilize for this particular component 
of its statistical program. A statistical program that aggregates 
disabling, serious or significant injuries and illnesses with other 
conditions and exposure incidents, is contrary to both the 
congressional directive and the goal of this recordkeeping system.

    While these commenters are correct in noting that the OSH Act does 
not specifically address medical removal levels and whether or not 
cases meeting these levels should be recorded, the Act also does not 
exclude them. The Act does require the recording of injuries and 
illnesses that result in ``restriction of work or motion'' or 
``transfer to another job.'' OSHA finds that cases involving a 
mandatory medical removal are cases that involve serious, significant, 
disabling illnesses resulting in restriction of work and transfer to 
another job, or both. These medical restrictions result either in days 
away from work (form of restriction) or days when the worker can work 
but is restricted from performing his or her customary duties.
    Other commenters objected to recording medical removals because 
they are precautionary in nature (Ex. 15: 146, 193, 258, 261, 305, 318, 
346). The American Foundrymen's Society, Inc. (Ex. 15: 346) argued 
that:

    An abnormally high level of a toxic material in an individual's 
blood (e.g., a lead level at or above the action level or the level 
requiring ``medical removal'' under OSHA's Lead Standard) is not and 
should not, in itself, be considered a recordable injury or illness. 
A preventive or prophylactic measure such as medical removal (as 
opposed to a restorative or curative measure) is not and should not 
be deemed medical treatment, a job transfer or restricted activity 
for purposes of recordability in the absence of a diagnosis of a 
substantial impairment of a bodily function.

    As stated previously, a ``diagnosis of substantial impairment of a 
bodily function'' is not required for a case to meet OSHA recordkeeping 
criteria, nor is it a limitation to recordability under the OSH Act. 
Many injuries and illnesses meet the recording criteria of the Act but 
lack diagnosis of a substantial impairment of a bodily function. 
Although the medical removal provisions are included in OSHA's 
standards to encourage participation in the medical program by 
employees and to prevent progression to serious and perhaps 
irreversible illness, they also reflect illnesses caused by exposures 
in the workplace and are thus themselves recordable. The workers are 
being removed not only to prevent illness, but to prevent further 
damage beyond what has already been done. Thus OSHA does not agree that 
medical removal measures are purely preventive in nature; instead, they 
are also remedial measures taken when specific biological test results 
indicate that a worker has been made ill by workplace exposures.
    OSHA has therefore included section 1904.9 in the final rule to 
provide a uniform, simple method for recording a variety of serious 
disorders that have been addressed by OSHA standards. The Sec. 1904.9 
provisions of the final rule cover all of the OSHA standards with 
medical removal provisions, regardless of whether or not those 
provisions are based on medical tests, physicians' opinions, or a 
combination of the two. Finally, by relying on the medical removal 
provisions in any OSHA standard, section 1904.9 of the final rule 
establishes recording criteria for future standards, and avoids the 
need to amend the recordkeeping rule whenever OSHA issues a standard 
containing a medical removal level.

Section 1904.10  Recording Criteria for Cases Involving Occupational 
Hearing Loss

    The recording criteria employers should use to record occupational 
hearing loss on the OSHA recordkeeping forms have been an issue since 
OSHA first proposed to require hearing conservation programs for 
general industry employers (39 FR 37775, October 24, 1974). Job-related 
hearing loss is a significant occupational safety and health issue 
because millions of workers are employed in noisy workplaces and 
thousands of workers experience noise-induced hearing loss each year. 
Noise-induced hearing loss is a serious and irreversible condition that 
may affect the safety and well-being of workers for the rest of their 
lives.
    For the nation as a whole in 1997, the BLS reported only 495 cases 
of occupational hearing loss resulting in days away from work (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://stats.bls.gov/case/ostb0684.txt; BLS Characteristics Data Table R15 of 
04/22/1999). Hearing loss is not the type of occupational injury or 
illness that typically requires days away from work for recuperation, 
as is often the case for

[[Page 6005]]

a fracture, fall, or carpal tunnel syndrome case. OSHA believes that 
there are many cases of hearing loss--probably numbering in the 
thousands--that occur every year as a result of job-related noise 
exposure but do not result in days away from work and are thus not 
captured in the BLS statistics. Because these hearing losses are often 
permanent, a large number of Americans, both working and retired, are 
currently suffering the effects of hearing loss due to occupational 
exposure.
    The changes being made to the OSHA 300 form in the final rule will 
improve the quality of the data collected nationally on this important 
occupational condition by providing consistent hearing loss recording 
criteria, thus improving the consistency of the hearing loss statistics 
generated by the BLS occupational injury and illness collection 
program. National hearing loss statistics will also be improved because 
OSHA has added a column to the OSHA 300 Log that will require 
employers, for the first time, to separately collect and summarize data 
specific to occupational hearing loss. These changes mean that the BLS 
will collect hearing loss data in future years, both for cases with and 
without days away from work, which will allow for more reliable 
published statistics concerning this widespread occupational disorder.
    Paragraph 1904.10(a) of the final rule being published today 
requires an employer to record an employee's hearing test (audiogram) 
result if that result reveals that a Standard Threshold Shift (STS) for 
that employee has occurred. If the employee is one who is covered by 
the medical surveillance requirements of OSHA's Occupational Noise 
standard (29 CFR 1910.95), compliance with the standard will generate 
the information necessary to make recording decisions.
    If the employee is not covered by the 29 CFR 1910.95 noise 
standard, OSHA rules do not require the employer to administer baseline 
or periodic audiograms, and the 1904 rule does not impose any new 
requirements for employers to obtain baseline information where it is 
not already required. However, some employers conduct such tests and 
acquire such information for other reasons. If the employer's workplace 
is a high noise environment (i.e., has noise levels that exceed 85 dBA) 
and the employer has the relevant audiogram information for an 
employee, the employer must record any identified work-related hearing 
loss equal to or greater than an OSHA-defined STS on the Log. This 
means that an employer in the construction industry, for example, who 
is aware that his or her work activities regularly generate high noise 
levels and who has audiometric data on the hearing level of the 
employees exposed to those noise levels must record on the Log any STS 
detected in those workers. OSHA believes that this approach to the 
recording of work-related hearing loss cases among these workers not 
covered by the noise standard is appropriate because it is reasonable, 
protective, and administratively straightforward.
    Paragraph 1904.10(b)(1) of the final rule defines an STS as that 
term is defined in the Occupational Noise Standard: as a change in an 
employee's hearing threshold, relative to the baseline audiogram for 
that employee, of an average of 10 decibels (dB) or more at 2000, 3000, 
and 4000 hertz in one or both ears. The Noise standard, at paragraph 
1910.95(c)(1), describes the employees in general industry who are 
covered by the required hearing conservation program as follows:

    The employer shall administer a continuing, effective hearing 
conservation program, as described in paragraphs (c) through (o) of 
this section, whenever employee noise exposures equal or exceed an 
8-hour time-weighted average sound level (TWA) of 85 decibels 
measured on the A scale (slow response) or, equivalently, a dose of 
fifty percent. For purposes of the hearing conservation program, 
employee noise exposures shall be computed in accordance with 
appendix A and Table G-16a, and without regard to any attenuation 
provided by the use of personal protective equipment.

    Paragraph 1904.10(b)( 2) of the final recordkeeping rule directs 
employers how to determine whether a recordable STS has occurred. The 
paragraph deals with two situations: (1) where the employee has not 
previously experienced such a hearing loss, and (2) where the employee 
has experienced a past recordable hearing loss. If the employee has 
never previously experienced a recordable hearing loss, the employer 
must compare the results of the employee's current audiogram with the 
employee's baseline audiogram, if the employee has a baseline 
audiogram. The employee's baseline audiogram could either be that 
employee's original baseline audiogram or a revised baseline audiogram 
adopted in accordance with paragraph (g)(9) of 29 CFR 1910.95. For 
employees who have not previously had a recordable hearing loss with 
that employer, the loss in hearing is computed using the preemployment 
hearing test result so that any hearing loss the employee may have 
experienced before obtaining employment with the employer is not 
attributed to noise exposure in that employer's workplace.
    If the employee has previously experienced a recordable hearing 
loss, the employer must compare the employee's current audiogram with 
the employee's revised baseline audiogram (i.e., the audiogram 
reflecting the prior recorded hearing loss). For employees who have had 
a previously recordable hearing loss with that employer, the final 
recordkeeping rule thus ensures that the employer does not record the 
same case of hearing loss twice, but that if a second STS occurs, the 
employer will record that additional hearing loss.
    Paragraphs 1904.10(b)(3) and (4) of the final rule allow the 
employer to take into account the hearing loss that occurs as a result 
of the aging process and to retest an employee who has an STS on an 
audiogram to ensure that the STS is permanent before recording it. The 
employer may correct the employee's audiogram results for aging, using 
the same methods allowed by the OSHA Noise standard (29 CFR 1910.95). 
Appendix F of Sec. 1910.95 provides age correction for presbycusis 
(age-induced hearing loss) in Tables F-1 (for males) and F-2 (for 
females). Further, as permitted by the Noise standard, the employer may 
obtain a second audiogram for employees whose first audiogram registers 
an STS if the second audiogram is taken within 30 days of the first 
audiogram. The employer may delay recording of the hearing loss case 
until the STS is confirmed by the second audiogram and is, or course, 
not required to record the case if the second audiogram reveals that 
the STS was not permanent.
    Paragraph 1904.10(b)(5) of the final rule establishes how employers 
are to determine the work-relatedness of hearing loss cases. This 
paragraph specifies that, in accordance with the recordkeeping rule's 
definition of work-relationship, hearing loss is presumed to be work-
related for recordkeeping purposes if the employee is exposed to noise 
in the workplace at an 8-hour time-weighted average of 85 dB(A) or 
greater, or to a total noise dose of 50 percent, as defined in 29 CFR 
1910.95. (Noise dose is defined as the amount of actual employee 
exposure to noise relative to the permissible exposure limit for noise; 
a dose greater than 100% represents exposure above the limit.) For 
hearing loss cases where the employee is not exposed to this level of 
workplace noise, or where the employee is not covered by the 
Occupational Noise standard, the employer must use the rules set out in 
Sec. 1904.5 to determine if the hearing loss is to be

[[Page 6006]]

considered work related for recordkeeping purposes.
    Paragraph 1904.10(b)(6) allows the employer not to record a hearing 
loss case if physician or other licensed health care professional 
determines that the hearing loss is not work-related or has not been 
aggravated by occupational noise exposure. This provision is consistent 
with the Occupational Noise standard, and it allows the employer not to 
record a hearing loss case that is not related to workplace events or 
exposures; examples of such cases are hearing loss cases occurring 
before the employee is hired or those unrelated to workplace noise.
    The recordkeeping provisions in section 1904.10 of the final 
recordkeeping rule thus match the provisions of the Occupational Noise 
standard by (1) covering the same employers and employees (with the 
exception of cases occurring among employees not covered by that 
standard whose employers have audiometric test results and high-noise 
workplaces); (2) using the same measurements of workplace noise; (3) 
using a common definition of hearing loss, i.e., the STS; (4) using the 
same hearing loss measurement methods; (5) using the same definitions 
of baseline audiogram and revised baseline audiogram; (6) using the 
same method to account for age correction in audiogram results; and (7) 
allowing certain temporary threshold shifts to be set aside if a 
subsequent audiogram demonstrates that they are not permanent or a 
physician or other licensed health care professional finds they are not 
related to workplace noise exposure.
The Former Rule
    The regulatory text of OSHA's former recordkeeping rule did not 
specifically address the recording of hearing loss cases, and the 
Sec. 1910.95 Occupational Noise Standard does not address the recording 
of hearing loss cases on the OSHA Log. However, the 1986 Recordkeeping 
Guidelines provided clear advice to employers to the effect that work-
related hearing loss was a recordable disorder, that it could be either 
an injury or illness, depending on the events and exposures causing the 
hearing loss, and that all hearing loss illnesses were required to be 
recorded, regardless of the industry in which the employer worked (Ex. 
2, p. 4). However, the Guidelines did not provide specific guidance on 
the kinds of hearing test or audiogram results that would constitute a 
recordable, work-related hearing loss.
    In 1990, OSHA considered issuing a Compliance Directive addressing 
the recording of hearing loss cases on employers' OSHA 200 Logs, but 
decided that the issue of the recording of hearing loss cases should be 
addressed through notice-and-comment rulemaking at the time of the 
revision of the recordkeeping rule. To address this topic in the 
interim before the final recordkeeping rule was issued, OSHA sent a 
memorandum to its field staff (June 4, 1991) to clarify its enforcement 
policy on the recording of occupational hearing loss and cumulative 
trauma disorders on the OSHA 200 Log, on the grounds that these cases 
``have received national attention and require immediate 
clarification.'' The memorandum specified that ``OSHA will issue 
citations to employers for failing to record work related shifts in 
hearing of an average of 25 dB or more at 2000, 3000, and 4000 hertz 
(Hz) in either ear on the OSHA 200 Log.'' The interim enforcement 
policy was intended to provide a conservative approach to the issue 
until the recordkeeping rulemaking was completed. The interim policy 
stated that ``The upcoming revision of the recordkeeping regulations, 
guidelines and related instructional materials will address the 
recordability criteria for all work related injuries and illnesses.'' 
The memo also mentioned the use of standard threshold shifts (STS) 
results, saying:

    Employers are presently required by 29 CFR 1910.95 to inform 
employees in writing within 21 days of the determination of a 
Standard Threshold Shift (an average of 10 dB or more at 2000, 3000 
and 4000 Hz in either ear) and to conduct specific follow-up 
procedures as required in paragraph (g) of the standard. Employers 
should be encouraged to use this information as a tracking tool for 
focusing noise reduction and hearing protection efforts.

The Proposal
    The proposed recordkeeping criterion for recording a case of 
hearing loss (61 FR 4064) was an average shift of 15 decibels (dB) or 
more at 2000, 3000, and 4000 hertz in one or both ears after the 
employee's hearing loss had been adjusted for presbycusis (age-related 
hearing loss). OSHA proposed to permit employers to delete the record 
of the hearing loss injury or illness if a retest performed within 30 
days indicated that the original shift was not permanent. Once a 15 dB 
work-related shift had occurred, however, OSHA proposed that the 
employee's baseline audiogram (for recordkeeping purposes) be adjusted 
to reflect that loss. A subsequent audiogram would have to reveal an 
additional 15 dB shift from the new or revised baseline value to be 
considered a new hearing loss injury or illness. OSHA proposed to 
presume work-relationship if an employee was exposed on the job to an 
8-hour time-weighted average noise level equaling 85 dB(A) (61 FR 
4064).
    OSHA also raised several issues related to hearing loss recording 
in the proposal (61 FR 4064):

    The lowest action level in the noise standard is an average 
shift of 10 decibels or more at 2000, 3000 and 4000 hertz. OSHA is 
proposing the 15 decibel criteria for recordkeeping purposes to 
account for variations in the reliability of individual audiometric 
testing results.
    OSHA asks for input on which level of a shift in hearing should 
be used as a recording criteria; 10 decibels? 20 decibels? 25 
decibels? For each level, what baseline should be used? 
Preemployment (original) baseline? Audiometric zero? Is adjusting 
for presbycusis appropriate?

Comments on the Proposal
    OSHA's proposed recording criterion for hearing loss received more 
comments than the proposed criterion for any other type of injury or 
illness other than musculoskeletal disorders. The hearing loss comments 
cover a wide variety of issues, including which hearing test results 
should or should not be considered an OSHA recordable illness, the 
choice of baseline audiograms, retesting and persistence of hearing 
loss, determining work relatedness, the appropriateness of correcting 
audiograms for aging (presbycusis), and the role of physicians and 
other licensed health care professionals in the determination of 
recordable hearing loss cases. The issues raised by commenters are 
organized by topic and discussed below.
The Definition of Recordable Hearing Loss
    There was limited support among commenters for OSHA's proposed 15 
dB shift recording criterion (see, e.g., Exs. 15: 50, 61, 84, 111, 113, 
156, 188, 233, 281, 289, 349, 407). However, many of these commenters 
supported the use of a 15 dB shift as the recording criterion only if 
the final recordkeeping rule also reflected other changes, such as 
eliminating the correction for aging (see, e.g., Exs. 15: 50, 188, 407) 
or limiting the recording of hearing loss to one case per worker per 
lifetime (Ex. 15: 349). For example, General Electric (Ex. 15: 349) 
suggested limiting the recording of hearing loss to one case per 
employee:

    GE supports recording an average standard threshold shift of 15 
decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both 
ears, adjusted for presbycusis and with a deletion upon retest as 
described. The establishment of the recording criteria at a level 
slightly higher than STS requiring action in the noise standards 
allows the

[[Page 6007]]

employer the opportunity to take action before the STS progresses to 
a recordable injury. GE recommends, however, that, to reduce the 
administrative burden, the baseline not be revised after the shift, 
that the original baseline be maintained and the hearing loss only 
be recorded on the initial occasion of the 15 dB shift.

    George R. Cook and Omar Jaurez, occupational audiologists (Ex. 15: 
50), supported the 15dB level only if no adjustment for aging was 
allowed:

    [t]he Noise Standard has two loopholes in the identification of 
STS. First it allows for revision of baseline when the loss is 
persistent. The Standard does not identify persistence and it is 
possible to revise a baseline early and subsequent STSs would be 
postponed. The second loophole is the allowance of presbycusis which 
hides changes in hearing. Therefore, a criteria which separates the 
recording criteria from STS and protects the required STS follow-up 
is necessary. A 20 or 25 dB criteria is felt to be too much change.

    Most of the commenters, however, did not support the proposed 15 dB 
criterion (see, e.g., Exs. 22; 26; 15: 25, 45, 108, 110, 119, 137, 146, 
154, 171, 177, 201, 203, 213, 218, 246, 251, 262, 278, 295, 310, 329, 
331, 334, 343, 347, 348, 350, 358, 369, 394, 396, 405, 424). Most of 
these commenters recommended a recording criterion of a 25 dB shift, 
i.e., the criterion used in OSHA's interim enforcement policy (see, 
e.g., Exs. 22; 15: 45, 119, 137, 146, 154, 171, 177, 201, 203, 218, 
246, 262, 278, 329, 331, 334, 343, 348, 358, 395, 424). Con Edison 
wrote ``[l]owering the dB shift criteria to 15 dB [from 25 dB] would 
result in recording cases which do not meet the clinical definition of 
hearing loss'' (Ex. 15: 213), and the Amoco Corporation testified that 
OSHA should ``[r]aise the hearing loss limit to a more appropriate 
indication of material impairment'' (Ex. 22). The American Iron and 
Steel Institute (Ex. 15: 395) commented:

    The appropriate recording trigger should be the loss of hearing 
recognized by the American Medical Association (AMA) as the lowest 
indicator of any material impairment to the employee's hearing. 
According to the AMA, a person has suffered material impairment when 
testing reveals a 25 dB average hearing loss from audiometric zero 
at 500, 1000, 2000, and 3000 hertz. OSHA itself has recognized that 
this is the lowest level of hearing loss that constitutes any 
material hearing impairment. see 46 Fed. Reg. 4083 (Jan. 18, 1981). 
Below that level, an employee has suffered no noticeable injury or 
illness.

    The American Iron and Steel Institute disagreed that a 10 or a 15 
dB shift in hearing should be recorded, stating that ``While a 15 dB 
shift is arguably closer to a serious injury than a 10 dB shift, 
neither is a principled approximation of the onset of any disabling 
illness or injury, and each is inconsistent with OSHA's acknowledgment 
in Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 n.18 
(4th Cir. 1985), that no injury results until a person experiences a 25 
dB loss.'' (OSHA does not agree with this characterization of its 
position.)
    Similarly, the Monsanto Company commented ``OSHA acknowledges in 
the Hearing Conservation Amendment Standard that STS will occur and 
nothing is required to be done to prevent it from occurring. Therefore, 
it cannot be a measure of significantly impaired functional hearing 
capacity. In the preamble to this rule, OSHA cites several excerpts of 
testimony supporting this position'' (Ex. 15: 295).
    Vulcan Chemicals commented that it ``believes the present 
requirement [of a hearing level shift of 25 dB for recordkeeping] is 
protective and recommends that the recordable criteria should remain at 
25 decibels'' (Ex. 15: 171). New England Power justified its support 
for a 25 dB shift as the recording criteria with the comment that there 
``is far too much variability with an individual subject and the 
equipment to ensure accuracy'' (Ex. 15: 170), and Tosco, arguing in a 
similar vein, commented that the ``existing 25 dB shift provides an 
easily identifiable measurement for determining injuries, and also 
provides for variation in background noise during testing, variability 
of the employee's health/hearing capability on the day being tested, as 
well as variation in the employee's home/social lifestyle which may 
contribute to hearing loss'' (Ex. 15: 246). The Can Manufacturers 
Institute commented that a 25 dB shift criterion ``would identify as 
consequential change in hearing acuity that is irreversible and 
minimize multiple recording of change over time'' (Ex. 15: 331).
    There was also support in the rulemaking record for using a 20 dB 
shift as a criterion for recording hearing loss (see, e.g., Exs. 15: 
108, 295, 396, 405, 423). Most of the reasons given for supporting this 
level were the same as those provided as support for a 25 dB shift 
recording criterion. For example, the Westinghouse Electric Corporation 
commented that a ``20 decibel shift would not only allow for variances 
in individual audiometric tests, but would also allow for the fact that 
workplace noise levels are quite often more controlled and less severe 
than noise levels in the home environment (e.g., trap shooting, stereo 
sound levels, lawn mowing, and other types of non job-related 
activities)'' (Ex. 15: 405). Commenting that a 20 dB shift is two times 
the action level of a 10 dB shift prescribed by OSHA's Occupational 
Noise standard (29 CFR 1910.95), Brown and Root, Inc. suggested that 
this level ``would allow for a program to be initiated [at the action 
level] and working before a case becomes recordable. If the program, 
however, is not as effective as desired, the recordable level would 
require that the case be logged'' (Ex. 15: 423). Finally, Union Carbide 
Corporation argued that using a 20 dB shift as a recording criterion.

    [i]s in the direction of simplicity since this is an even 
multiple of 10 dB, which is the standard threshold shift and the 
action level for triggering certain hearing conservation 
requirements. Having an even multiple makes it much easier to track 
two different baselines one for the hearing conservation 
requirements and one for recordkeeping requirements. Our experience 
has shown that it is an administrative nightmare to track 10 dB 
baselines for hearing conservation and 25 dB baselines for 
recordkeeping (Ex. 15: 396).

    Industrial Health, Inc. (Ex. 15: 84), a mobile audiometry vendor, 
supported either a 10 dB or 15 dB persistent shift as the recording 
criterion and provided an analysis, using their data base of over 4 
million audiograms. Their comments on the merits of the 10 dB and 15 dB 
options, and whether each change is significant and noise related, are:

    Noise relatedness: Using the OSHA shift formula across 2, 3 & 4 
KHz (including OSHA's corrections for aging), a persistent shift of 
either 10dB or 15dB shows a strong correlation with audiogram 
patterns typical of exposure to noise (our samples showed more than 
85 percent of such shifts appeared to be noise related, and most of 
the remainder had been flagged by the reviewing audiologist as 
either medical referrals or cases where the employee had given a 
medically related explanation for the shift in hearing). Hence, we 
conclude that a persistent shift based on the OSHA shift formula 
with age correction, whether 10 dB or 15 dB, is a reasonably 
accurate indication of a hearing change due to noise exposure 
provided that medically related shifts are excluded.
    Significance of change: We calculated historic shifts based on 
both a 10 dB shift and a 15 dB shift on a sample industrial 
database. The following results are for persistent shifts only. The 
results showed that 15 dB shifts occurred less often than 10 dB 
shifts (as would be expected), with approximately 70% as many 15 dB 
shifts as 10 dB shifts. When both shifts occurred for an employee, 
most (over 80%) of the 15 dB shifts occurred at exactly the same 
test dates as did the 10 dB shifts, although in some cases (less 
than 20%) the 15 dB shifts occurred at later times. In general, the 
agreement was surprisingly good--much better than we had expected. 
In most (about 80%) of the instances where a 10 dB shift occurred 
but a 15 dB shift did not,

[[Page 6008]]

the significance of the 10 dB shift was questionable when the actual 
data were examined. Less than 5% of what we judged to be significant 
10 dB shifts were missed by the 15 dB rule.
    As a result, our analysis indicates the following (based again 
on all shifts having been demonstrated to be persistent):
    a. A persistent 10 dB shift with age correction is a reasonably 
good yardstick for significant change due to noise, although it does 
flag some changes which are of questionable significance (perhaps as 
high as 20% of the shifts).
    b. A persistent 15 dB shift with age correction is a better 
yardstick for significant change due to noise. In our tests it 
produced roughly 70 percent as many shifts as the 10 dB rule, but 
the difference was largely 10 dB shifts of questionable 
significance. It did report some changes later than the 10 dB rule 
and missed a few shifts (about 5%) which we judged to be of 
significance.

    Finally, there was strong support in the rulemaking record for 
using a 10 dB shift (also identified as a standard threshold shift or 
STS in the OSHA Noise standard) as a recording criterion for hearing 
loss (see, e.g., Exs. 26; 42; 15: 25, 110, 251, 310, 347, 350, 369, 
394). For example, the American College of Occupational and 
Environmental Medicine noted that the ``STS is the earliest reliable 
indication of measurable hearing loss for practical purposes. This is 
the earliest practical level of early detection and prevention of 
further loss is quite possible if the correct measures are taken'' (Ex. 
15: 251). The Ford Motor Company agreed. Commenting that it currently 
records any work-related hearing loss that results in an average loss 
of 10 dB or more, the company noted that ``[r]ecording hearing loss in 
its early stage provides Ford the information to correct hazardous 
conditions and prevent serious impairment to an employee'' (Ex. 15: 
347). Ford further stated that its ``method of recording occupational 
hearing loss is consistent with the requirement of the Hearing 
Conservation Amendment which requires notification to the employee.'' 
The Laborer's Health and Safety Fund of North America also pointed out 
the inconsistency between OSHA's proposed recording criterion in the 
recordkeeping rule and the criterion in OSHA's occupational noise 
exposure standard. The Fund commented:

    ``The noise standard defines a 10 dB shift at 2, 3, and 4K as a 
standard threshold shift and allows a revision of the baseline 
should the shift persist. Along comes the recordkeeping rule which 
says that a 15 dB shift is recordable, and a baseline revision (for 
recordkeeping purposes) can be made when a 15 dB shift occurs. This 
situation is an administrative nightmare. It is possible that a 
hearing loss will never be recordable because the 'baseline' is 
revised at a 10 dB shift. To avoid this situation, an employer would 
have to establish 2 different baselines, one for the noise standard 
provisions, and one for the recordkeeping rule provisions. This 
situation is unacceptable. We recommend that standard threshold 
shifts of 10 dB be used as the recordability criteria, since it is 
consistent with the 1910.95 noise standard'' (Ex. 15: 310).

    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Exs. 26, 42) recommended a recording policy that would capture 
instances of age-corrected STS, as defined in the OSHA noise standard, 
that are confirmed as persistent and that are determined to be work-
related. The Coalition's comments are of particular interest because 
its members include professional and scientific organizations dedicated 
to the issue of studying and preventing hearing loss. Member 
associations include the American Speech-Language-Hearing Association, 
the American Industrial Hygiene Association, the National Hearing 
Conservation Association, the Acoustical Society of America, the 
Council for Accreditation in Occupational Hearing Conservation, Self 
Help for Hard of Hearing People, Inc. and the Institute for Noise 
Control Engineering. These groups represent well over 100,000 
audiologists, acousticians, speech-language pathologists, industrial 
hygienists, safety and health professionals, and persons with hearing 
loss (Ex. 42, page 1).
    The Coalition provided the following reasons for relying on a 10 dB 
shift in hearing as an OSHA recordable condition (Ex. 42, pp. 9-13).

    1. An allowance in the recording criteria for test-retest 
variability is inappropriate (i.e. OSHA proposed the 15 dB criterion 
rather than the 10 dB criterion ``to account for variations in the 
reliability of individual audiometric results.''
    2. An age-corrected STS is a large hearing change that can 
affect communicative competence.
    3. Typical occupational noise exposures do not justify a larger 
shift criterion.
    4. Recording OSHA STSs reduces the recordkeeping burden to 
industry.
    5. Current OSHA STS rates are not high.
    6. Recording OSHA STSs will promote effective hearing 
conservation programs.

    Other commenters proposed still other criteria for recording 
hearing loss. For example, Detroit Edison stated that a shift in 
hearing level should not be used as a recording criterion for hearing 
loss because this ``is not indicative of an illness or injury, but only 
an indication that someone has had a slight change in their ability to 
hear'' and proposed instead that ``the level of hearing impairment 
should be used in recording hearing losses versus a threshold shift as 
compared to a baseline'' (Ex. 15: 377). OSHA does not agree with this 
commenter, however, because, as the record in the Noise standard 
rulemaking indicates, permanent threshold shifts do indicate a non-
minor impairment, although not all STSs are disabling.
    As is the case for many OSHA rules, the 1981 Noise standard was 
challenged in the courts, which stayed several provisions. In 1983, 
OSHA revised the hearing conservation amendment to revoke many of the 
provisions stayed by the court, lift an administrative stay implemented 
by OSHA, and make technical corrections (48 FR 9738). One of those 
provisions involved the definition of STS, which was renamed a 
``standard'' rather than ``significant'' threshold shift to help 
differentiate the two separate methods used to calculate the STS in the 
1981 and 1983 rules. Although OSHA changed the calculation method used 
to establish an STS in 1983, the role and importance of the STS concept 
in the context of a hearing conservation program was unchanged. The 
main reason for changing the definition of STS in the 1983 standard was 
to simplify the original calculation and address the concerns of 
employers and audiology professionals who wished to avoid using a 
computer to calculate an STS. The standard requires employers to take 
follow-up actions when an STS is identified, notify the affected 
employee, evaluate and refit hearing protectors, retrain the employee, 
and, if necessary, refer the employee for medical evaluation.
    The arguments put forward by the Coalition to Preserve OSHA and 
NIOSH and Protect Workers' Hearing (Exs. 26, 42) are, in OSHA's view, 
compelling reasons for requiring employers to record on their Logs any 
case of work-related hearing loss that reaches the level of an STS. 
OSHA is particularly persuaded by the Coalition's argument that ``An 
age-corrected STS is a large hearing change that can affect 
communicative competence'' because an age-corrected STS represents a 
significant amount of cumulative hearing change from baseline hearing 
levels. In the words of the Coalition, ``For an individual with normal 
hearing on the baseline audiogram, STS usually involves age-corrected 
shifts of 15-20 dB at 3000 and 4000 Hz. For an individual with pre-
existing high-frequency hearing loss on the baseline, STS usually 
involves substantial progression of the hearing loss into the critical 
speech frequencies. The absolute shift values before age corrections 
are

[[Page 6009]]

considerably larger.'' The Coalition also stressed that the method of 
averaging hearing loss at several frequencies, as is required to 
determine an STS under the OSHA Noise standard, tends to ``obscure the 
large hearing shifts at individual frequencies which usually occur 
before the average changes by a specified amount'' (Ex. 42, p. 10).
    OSHA has rejected, for recordkeeping purposes, the use of the 25 dB 
shift from audiometric zero prescribed by the American Medical 
Association Guidelines for Material Impairment. The AMA's 25 dB 
criterion is intended to be used to determine the level at which the 
employee should be compensated for hearing loss-related medical bills 
or lost time. In the context of occupational noise exposure, hearing 
loss of this magnitude reflects a serious impairment of health or 
functional capacity. As discussed in the Legal Authority section, 
however, the Congress intended the OSHA recordkeeping system to capture 
all non-minor occupational injuries and illnesses, and OSHA believes 
that an STS loss of hearing represents such an injury. An STS is an 
abnormal condition that should be recorded because it represents a 
material loss in hearing ability, beyond the normal effects of aging.
    OSHA has also rejected the 15 dB and 20 dB shift recording options, 
for several reasons. First, although OSHA suggested in the proposal 
that an additional 5 dB beyond the 10-dB STS shift was needed to 
account for variability in testing, this has not been supported by the 
record. As the Medical Educational Development Institute (Ex. 15: 25) 
stated: ``[t]est/re-test reliability of 5 dB is well established in 
hearing testing. For example, the Council on Accrediting Occupational 
Hearing Conservationists maintain this range of reliability in their 
training guidelines and this is recognized in American National 
Standard Method for Manual Pure-Tone Threshold Audiometry, S3.21--1978 
(R1992).''
    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Ex. 26) provided additional justification for dropping the 
proposed rule's 5 dB reliability margin: ``The allowance for a retest 
(or even multiple retests) should largely eliminate spurious shifts due 
to measurement error in audiometry. In fact, one of OSHA's original 
reasons for choosing a frequency-averaged shift (the OSHA STS) as a 
trigger level for employee follow-up was that the frequency averaging 
process reduces the influence of random audiometric variability.'' 
Because reliance on a frequency-averaged rather than single frequency 
shift increases the reliability of audiometric measurements, OSHA has 
not adopted NIOSH's recommendation that the hearing loss criterion 
should be a 15 dB shift at any frequency (Ex. 15: 407). Single 
frequency calculations are less reliable and may therefore lead to the 
under- or over-recording of hearing loss cases compared with the STS 
method of averaging loss over several frequencies.
    In the final recordkeeping rule, OSHA has chosen to use the 
Occupational Noise standard's STS--an average shift in either ear of 10 
dB or more at 2000, 3000, and 4000 hertz--as the shift in hearing that 
must be recorded by an employer on the OSHA log as a hearing loss case. 
An STS clearly represents a non-minor injury or illness of the type 
Congress identified as appropriate for recordkeeping purposes. The 
final rule allows the employer to adjust an employee's hearing test 
results for presbycusis (age), to retest within 30 days (the employer 
is not required to record if there is a retest within 30 days and the 
retest refutes the original test), and to have the test results 
evaluated by a physician or other licensed health care professional. 
Using the STS as the recording criterion also meets one of the primary 
purposes of this rulemaking, to improve the simplicity of the overall 
recordkeeping system. Relying on the Noise standard's STS shifts avoids 
the complexity referred to by many commenters (see, e.g., Exs. 15: 310, 
396) of maintaining multiple baselines for the Noise standard and the 
OSHA recordkeeping rule. As the Laborers' Health & Safety Fund of North 
America (Ex. 15: 310) commented:

    The noise standard defines a 10 dB shift at 2,3, and 4K as a 
standard threshold shift and allows a revision of the baseline 
should the shift persist. Along comes the recordkeeping rule which 
says that a 15 dB shift is recordable, and a baseline revision (for 
recordkeeping purposes) can be made when a 15 dB shift occurs. This 
situation is an administrative nightmare. It is possible that a 
hearing loss will never be recordable because the baseline is 
revised at a 10 dB shift. To avoid this situation, an employer would 
have to establish 2 different baselines, one for the noise standard 
provisions, and one for the recordkeeping rule provisions. This 
situation is unacceptable. We recommend that standard threshold 
shifts of 10 dB be used as the recordability criteria, since it is 
consistent with the 1910.95 noise standard.

    Several commenters (see, e.g., Exs. 15: 295, 395) argued that OSHA 
itself had discounted the significance of the 10 dB STS during the 29 
CFR 1910.95 rulemaking. OSHA disagrees with this assessment of the 
Agency's position on the importance of an STS. In the 1981 preamble to 
the Hearing Conservation Amendment, OSHA found that a 10 dB shift in 
hearing threshold is significant because it is outside the range of 
audiometric error and ``it is serious enough to warrant prompt 
attention'' (46 FR 4144). The 1983 preamble reinforces these findings. 
It states that:

    Correctly identifying standard threshold shifts will enable 
employers and employees to take corrective action so that the 
progression of hearing loss may be stopped before it becomes 
handicapping. Moreover, a standardized definition of STS will ensure 
that the protection afforded to exposed employees is uniform in 
regard to follow-up procedures. * * *
    OSHA reaffirms its position on the ideal criterion for STS which 
was articulated in the January 16, 1981 promulgation (see 46 FR 
4144). The criterion must be sensitive enough to identify meaningful 
changes in hearing level so that follow-up procedures can be 
implemented to prevent further deterioration of hearing but must not 
be so sensitive as to pick up spurious shifts (sometimes referred to 
as ``false positives''). In other words, the criterion selected must 
be outside the range of audiometric error (48 FR 9760).

    The Fourth Circuit rejected an employer's argument that a 10 dB 
shift in hearing threshold is insignificant. In its decision upholding 
OSHA's use of a 10 dB STS as an action level in the Hearing 
Conservation Amendment, the court found that:

    [t]he amendment is concerned with protecting workers before they 
sustain an irreversible shift. Consequently, it was incumbent upon 
the Agency to select a trigger level that would protect workers by 
providing an early warning yet not to be so low as to be 
insignificant or within the range of audiometric error. We find that 
the Agency struck a reasonable balance between those concerns. * * *

    Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1450 
(1985)(en banc).
    OSHA believes that many of the reasons stated in the 1983 preamble 
make the STS an appropriate recording criterion for recordkeeping 
purposes. For example, employers are familiar with the STS definition, 
which is also sensitive enough to identify a non-minor change in 
hearing. Use of the STS also reduces the confusion that would arise 
were OSHA to require employers to maintain two baselines: one required 
by the Occupational Noise standard and one required for recordkeeping 
purposes.
Baseline Audiogram
    In its proposal, OSHA also asked for comment on which baseline 
should be used as the starting point in determining recordable hearing 
loss. There was strong support in the record for using

[[Page 6010]]

the preemployment or original baseline for this purpose (see, e.g., 
Exs. 26; 15: 25, 50, 78, 108, 110, 111, 113, 146, 154, 163, 181, 188, 
218, 233, 262, 281, 295, 308, 348, 354, 402, 405), although a few 
commenters proposed using audiometric zero (see, e.g., Ex. 15: 395). 
One commenter proposed that the reviewing professional should determine 
the appropriate baseline on a case-by-case basis (Ex. 15: 175), and 
another proposed that an audiologist should determine when a change in 
baseline audiograms is warranted (Ex. 15: 203). Some commenters 
supported adjusting the employee's baseline audiogram when a recordable 
hearing loss case has been identified (see, e.g., Exs. 26; 15: 25, 108, 
111, 146, 163, 290, 354, 405, 407).
    OSHA agrees with those commenters who argued that the preemployment 
or original baseline should be used as the benchmark from which to 
determine recordable hearing loss. Using the preemployment or original 
baseline automatically corrects for any hearing loss that may have 
occurred before the worker was employed with his or her current 
employer and will prevent the recording of cases of nonoccupational 
hearing loss. This policy is also consistent with OSHA's Occupational 
Noise standard and therefore increases the simplicity of the recording 
system.
    OSHA also agrees that an employee's baseline audiogram should be 
adjusted if that employee experiences a recordable hearing loss. 
Revising the baseline by substituting the revised audiogram for the 
original audiogram after an STS has occurred will avoid a second or 
third recording of the same STS. On the other hand, recording hearing 
loss in a given worker only once would overlook the additional hearing 
loss that may occur, either in the same or the other ear, and would not 
be consistent with the definition of a ``new'' case in Section 1904.6 
of this rule, which requires employers to evaluate any ``new'' case 
that results from exposure in the workplace for recordability. 
Subsequent STS findings, i.e., further 10-dB shifts in hearing level, 
are more serious events than the first STS, because of the nonlinearity 
of the dB rating system and the progressive severity of increasing 
hearing loss. A second or third STS in a given worker is therefore also 
treated under the recordkeeping system as a recordable illness on the 
OSHA 300 Log. The final rule makes this clear by requiring the 
employee's audiogram to be compared to the preemployment baseline 
audiogram when the worker has not experienced a recordable hearing 
loss, and to the audiogram reflecting the most recent recorded hearing 
loss if the worker has experienced a prior recorded hearing loss case.
Correction for Aging
    In its proposal, OSHA included provisions allowing the employer to 
adjust the results of audiograms for presbycusis (age-related hearing 
loss), and asked for comment on whether an age correction is 
appropriate. The vast majority of commenters agreed that it was (see, 
e.g., Exs. 26; 42; 15: 39, 45, 84, 113, 137, 163, 175, 201, 203, 262, 
278, 281, 283, 331, 347, 348, 396, 405). As the Westinghouse Hanford 
Company commented, ``[t]he adjusting for presbycusis is appropriate as 
the deterioration of the hearing related to age is an important factor 
in determining the amount of hearing loss related to workplace 
hazards'' (Ex. 15: 108). Julia Royster, Ph.D. CC-A/SLP, agreed with 
this view, stating that ``Age-related hearing loss is inevitable. There 
are individual differences in the rate of age-related hearing change 
and the amount of hearing loss eventually shown due to presbycusis. 
However, most people will eventually develop age-related hearing 
changes equivalent to one or more OSHA STSs. Therefore, presbycusis 
corrections are necessary to avoid attributing age-related hearing 
change to occupational causes'' (Ex. 26, Appendix C).
    However, some commenters did not agree that the use of age 
corrections was appropriate (see, e.g., Exs. 15: 50, 110, 188, 233, 
407). For example, Occupational Audiologists (Ex. 15: 50) pointed out 
that ``[w]hen the tables [in 29 CFR 1910.95] are applied they ignore 
any hearing loss that may be present as a result of medical pathology 
or noise exposure prior to the baseline hearing test,'' and therefore 
the ``use of the presbycusis tables hides significant changes in 
hearing thus delaying the STS required procedures of follow-up, 
notification, fitting/re-fitting, educating and requiring the wearing 
of hearing protection for some individuals.'' Similarly, John P. Barry 
(Ex. 15: 110), commented:

    At the 4000 Hz test frequency where occupational hearing loss 
first occurs, application of the presbycusis correction may 
significantly reduce the noted threshold shift relative to the 
employee's baseline audiogram. However, the changes at 2000 and 3000 
Hz often are equal to or less than the presbycusis corrections. When 
these corrections are applied to actual audiometric data, they mask 
the effects of occupational noise and hinder early detection of 
noise-induced hearing loss. While hearing loss due to aging 
(presbycusis) and hearing loss due to the non occupational 
environment (sociocusis) may account for some of hearing loss noted 
in serial audiograms, there is no scientifically valid way to 
correct the data for non occupational hearing loss. * * * It is 
inappropriate use of statistics to apply median values from one 
population on a different population when no foundation has been 
developed to justify such manipulation of data.

    OSHA recognizes that using the correction for presbycusis when 
interpreting audiogram results is controversial among experts in the 
field of audiology and that NIOSH has developed a new criteria document 
on occupational noise exposure (``Criteria for a Recommended Standard; 
Occupational Noise Exposure, Revised Criteria, 1998; U.S. Department of 
Health and Human Services, Centers for Disease Control and Prevention, 
National Institute for Occupational Safety and Health; June 1998) which 
at present does not recommend applying presbycusis correction values to 
actual employee audiometric data. However, since the Occupational Noise 
standard itself permits employers to adjust the interpretation of 
audiograms for the effects of aging, it would be inconsistent and 
administratively complex to prohibit this practice in the recordkeeping 
rule. Accordingly, Sec. 1904.10(b)(3) allows the employer to adjust for 
aging when determining the recordability of hearing loss. The 
adjustment is made using Tables F-1 or F-2, as appropriate (table F-1 
applies to men and F-2 applies to women), in Appendix F of 29 CFR 
1910.95. However, use of the correction for aging is not mandatory, 
just as it is not mandatory in the Noise standard itself.
Persistence of Hearing Loss
    Yet another issue surrounding the recording of hearing loss 
involves the timing of the recording of a case on the OSHA forms when 
an audiogram has been performed on an employee. The issue is whether 
the results of an audiogram should be recorded within the interval for 
recording all cases, or whether the audiogram should be verified with a 
retest before recording is required. The proposed rule would have 
required the recording of hearing loss cases within 7 calendar days of 
the first audiogram, but then would have permitted employers to remove, 
or line out, a hearing loss case on the Log if a second audiogram taken 
on that employee within 30 days failed to show that the STS was 
persistent. Several commenters supported immediate recording with the 
30 day retest provision (see, e.g., Exs. 15: 295, 350, 394, 407). The 
Building and Construction Trades Department of the AFL-CIO (Ex. 15: 
394) noted that if a

[[Page 6011]]

retest was not performed the case would never be recorded:

    We support OSHA, however, on requiring cases to be recorded and 
then lined out later if the loss does not persist. In construction, 
where a worker may never get a follow-up test because they have 
moved to a different worksite, the case needs to be recorded and 
presumed work-related. For construction workers that is a very good 
presumption to make. These changes should lead to more accurate 
reporting of hearing loss among construction workers.

    Other commenters, however, did not agree with OSHA's proposal and 
believed the shifts should be confirmed before recording on the Log is 
required (see, e.g., Exs. 26; 42; 15: 50, 84, 175, 181, 188, 201, 203, 
331). Impact Health Services (Ex. 15: 175) expressed its opinion that

    The new hearing loss criterion should require recording of only 
confirmed work-related shifts in hearing. * * * There is no question 
that it is in the best interest of the hearing conservation program 
to identify shifts in hearing while they are still temporary so that 
follow-up action can be taken immediately to prevent permanent 
hearing loss. * * * However, requiring companies to record all 
shifts (both temporary and persistent) within six (proposed seven) 
days may have an unintended punitive effect. Companies are usually 
hesitant to record any incidents on Form 200 (proposed Form 300), 
even if lining-out the event at a later date is an option. 
Therefore, disallowing the OSHA 30-day retest for recording purposes 
may have a negative impact on programs which are designed to prevent 
hearing loss. By requiring recording of all shifts within seven 
days, companies may actually discontinue programs of conducting 
annual testing during the work shift, due to a reluctance to 
identify (and record) temporary threshold shift.

    To address the problem identified by the Building and Construction 
Trades Department of the AFL-CIO, Impact Health Services recommended 
that ``[i]f a follow-up audiogram is not administered within 30 days of 
determination, or if the follow-up audiogram confirms the shift, then 
the shift is considered persistent and if determined to be work 
related, must be recorded on Form 300'' (Ex. 15: 175). The American 
Association of Occupational Health Nurses (Ex. 15: 181) noted that it 
``would require less paperwork to record the hearing loss after 
confirmation by a re-test in thirty days, rather that recording the 
initial shift and then having to `line out' the entry if the re-test 
was not indicative of any hearing loss.''
    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Exs. 26; 42) stated:

    This urgency [as reflected in the proposal's provision requiring 
recording within 7 days] in recording unconfirmed shifts does not 
appear justified and creates additional burdens for the employer. 
The coalition recommends the following more efficient and suitably 
protective approach:
--Only confirmed (i.e., persistent) work-related STSs are to be 
recorded on Form 300, unless a follow-up audiogram is not 
administered.
--If a follow-up audiogram is not administered within 30 days of the 
initial determination of STS, or if the follow-up audiogram confirms 
the STS, then the shift is considered persistent, and if determined 
to be work-related, must be recorded on Form 300. * * *
--If a follow-up audiogram given within 30 days of the initial 
determination of the STS does not confirm the STS, nothing is to be 
recorded on Form 300.

    The Coalition also recommended that employers be allowed to remove, 
or line-out, recorded hearing losses that are not confirmed by 
subsequent retesting, or are found not to be work-related, within 15 
months of the initial STS identification, at the discretion of the 
reviewing professional. Such a provision would allow employers to 
remove cases if the next annual audiogram showed an improvement in 
hearing (Exs. 26; 42).
    Several commenters discussed the length of time OSHA should allow 
between the audiogram on which the STS was first detected and the 
confirmatory retest. The International Dairy Food Association suggested 
that allowing only a 30-day period ``may not be feasible in many 
situations where mobile van testing is utilized. * * * Thirty days are 
easily consumed during the compiling, mailing, interpreting, mailing, 
evaluation process'' (Ex. 15: 203). The Association recommended instead 
that ``OSHA increase the current requirement of 30 days to 45 days to 
allow employers and employees to obtain a re-test following an annual 
audiogram'' (Ex. 15: 403). For the same reasons, the Can Manufacturers 
Institute recommended that retests be permitted within 90 days of the 
original test, noting that ``[t]here is no magic regarding the current 
30 day span'' (Ex. 15: 331). Industrial Health Inc. commented that 
``there's no rush'' to retest and stated its preference for a time 
lapse longer than 30 days ``[i]n order to allow temporary [hearing 
loss] effects to subside'' (Ex. 15: 84). NIOSH (Ex. 15: 407) proposed 
that a confirmatory retest be permitted at any time provided that the 
retest was preceded by a 14-hour period of quiet.
    After a review of the record on this point, OSHA has decided to 
require that any retest the employer chooses to perform be conducted 
within 30 days. Accordingly, in the final rule, at paragraph 
1904.10(b)(4), employers are permitted, if they choose, to retest the 
employee to confirm or disprove that an STS reflected on the first 
audiogram was attributable to a cold or some other extraneous factor 
and was not persistent. If the employer elects to retest, the employer 
need not record the case until the retest is completed. If the retest 
confirms the hearing loss results, the case must be recorded within 7 
calendar days. If the retest refutes the original test, the case is not 
recordable, and the employer does not have to take further action for 
OSHA recordkeeping purposes. The 30 day limit in the final 
recordkeeping rule is consistent with the 30 day retest provision of 
Sec. 1910.95(g)(5)(ii), which allows the employer to obtain a retest 
within 30 days and consider the results of the retest as the annual 
audiogram if the STS recorded on the first test is determined not to 
persist.
    OSHA believes that the 30 day retest option allows the employer to 
exclude false positive results and temporary threshold shifts from the 
data while ensuring the timely and appropriate recording of true 
positive results. Adding language to the final recordkeeping rule to 
specify different procedures, depending on whether the employer chooses 
to conduct a re-test within 30 days, adds some complexity to the final 
rule, but OSHA finds that this added complexity is appropriate because 
it will reduce burden for some employers and improve the accuracy of 
the hearing loss data.
Work-Relationship
    One of the greatest sources of controversy in the record concerning 
OSHA's proposed criterion for recording hearing loss relates to the 
presumption of work-relationship in cases where an employee is exposed 
to an 8-hour time-weighted average sound level of noise equaling or 
exceeding 85 dB(A) (61 FR 4064). One commenter supported the 
recordkeeping proposal's approach on this matter. NIOSH (Ex. 15: 407) 
recommended that work-relationship be presumed ``if an employee is 
exposed to an 8-hour time-weighted sound level of noise equaling or 
exceeding 85 dB(A) or to peak sound levels equaling or exceeding 115 
dB(A) regardless of brevity or infrequency.'' Several commenters 
advocated presuming work-relatedness if the employee experienced 
occupational exposures to 85 dB unless medical evidence showed that the 
hearing loss was not related to work (see, e.g., Exs. 15: 39, 50, 146, 
171, 188). For example, BF Goodrich (Ex. 15: 146) asked that ``[O]SHA 
give employers the opportunity to refute the work

[[Page 6012]]

relationship for employees found to have other than noise-induced 
hearing loss. If the employee is examined by an otolaryngologist or 
other qualified health professional and found to have a medical 
condition that causes hearing loss, the case should not be 
recordable.''
    Several commenters objected to the proposed presumption of work-
relationship (see, e.g., Exs.15: 201, 263, 283, 289, 305, 318, 334, 
390). The National Association of Manufacturers commented that ``There 
is no justification for presuming that hearing loss is work-related 
simply because an employee is exposed to an 8-hour time weighted 
average sound level of noise of 85 dB(A) or higher, even if it were a 
daily exposure and particularly where it could be as infrequent as once 
per year'' (Ex. 15: 305). Many commenters agreed with Mississippi 
Power, which wrote ``[t]he presumption of work relationship does not 
consider other potentially significant noise exposures such as noisy 
hobbies, or other noisy activities not associated with occupational 
noise exposures'' (Ex. 15: 263). Deere & Company argued that ``OSHA is 
not taking into account the noise-reducing effect of an effective 
hearing conservation program nor does it take into account the often 
significant noise exposure that many employees have away from the 
workplace '' (Ex. 15: 283).
    There are numerous suggestions in the record on how best to deal 
with the presumption of work-relationship. Impact Health Services Inc., 
and others suggested that a case be considered work-related ``when in 
the judgement of the supervising audiologist or physician, the shift is 
due in full or in part to excessive noise exposure in the workplace'' 
(Ex. 15: 175). Akzo Nobel Chemicals proposed that work-relationship be 
presumed when ``there is no other reasonable non-work related 
explanation'' (Ex. 37), and the National Grain and Feed Association 
suggested ``that if an employer has an active and an enforceable 
hearing conservation program in place, the presumption should be that 
any hearing loss experienced by an employee is not work related unless 
it can be shown to be otherwise'' (Ex. 15: 119). A number of commenters 
agreed with the comment of the Edison Electric Group that ``OSHA should 
also establish a criteria of exposure to noise at or above the 85 dB(a) 
TWA action level of 30 or more days per year before the case is 
recordable'' because ``[a] single day's exposure at or below the PEL 
will not cause hearing loss'' (Ex. 15: 401), and NIOSH proposed that 
work-relationship be presumed ``if an employee is exposed to an 8-hour 
time-weighted sound level of noise equaling or exceeding 85 dB(A) or to 
peak sound levels equaling or exceeding 115 dB(A) regardless of brevity 
or infrequency'' (Ex. 15: 407).
    In the final rule, OSHA has continued to rely on a presumption of 
work-relationship for workers who are exposed to noise at or above the 
action levels specified in the Occupational Noise standard (29 CFR 
1910.95). In line with the overall concept of work relationship adopted 
in this final rule for all conditions, an injury or illness is 
considered work related if it occurs in the work environment. For 
workers who are exposed to the noise levels that require medical 
surveillance under Sec. 1910.95 (an 8-hour time-weighted average of 85 
dB(A) or greater, or a total noise dose of 50 percent), it is highly 
likely that workplace noise is the cause of or, at a minimum, has 
contributed to the observed STS. It is not necessary for the workplace 
to be the sole cause, or even the predominant cause, of the hearing 
loss in order for it to be work-related. Because the final 
recordkeeping rule relies upon the coverage of the Occupational Noise 
standard, it is also not necessary for OSHA to include a minimum time 
of exposure provision. The Occupational Noise standard does not require 
a baseline audiogram to be taken for up to six months after the 
employee is first exposed to noise in the workplace, and the next 
annual audiogram would not be taken until a year after that. For any 
worker to have an applicable change in audiogram results under the 
Occupational Noise standard, the worker would have been exposed to 
levels of noise exceeding 85 dB(A) for at least a year, and possibly 
even for 18 months.
    In addition, the provisions allowing for review by a physician or 
other licensed health care professional allow for the exclusion of 
hearing loss cases that are not caused by noise exposure, such as off 
the job traumatic injury to the ear, infections, and the like. OSHA 
notes that this presumption is consistent with a similar presumption in 
OSHA's Occupational Noise standard (in both cases, an employer is 
permitted to rebut this presumption if he or she suspects that the 
hearing loss shown on an employer's audiogram in fact has a medical 
etiology and this is confirmed by a physician or other licensed health 
care professional).
Miscellaneous Issues
    Other issues addressed by commenters to the rulemaking record on 
OSHA's proposed criterion for recording hearing loss included whether 
OSHA should treat hearing levels for each ear separately for recording 
purposes. Impact Health Services, Inc. (Ex. 15: 175) recommended that 
proposed Appendix B specify that shifts in hearing be calculated 
separately for each ear:

    Because an individual's left and right ears may be affected 
differently by noise or other occupational injury, it is important 
that Appendix B specifies that shifts in hearing are to be 
calculated separately for each ear.

    Arguing along similar lines, the Chevron Companies raised the issue 
of revising baselines for both ears when a standard threshold shift is 
recorded in only one ear. They commented:

    The proposed rule discusses an average shift in one or both ears 
and establishing a new or revised baseline for future tests to be 
evaluated against. In discussing the new or revised baseline however 
the proposed rule does not give guidance on revision when only one 
ear meets the revision criteria (15 dB or 25 dB or whatever the 
final rule states). Are the baselines for both ears revised or only 
the ear meeting the criteria? This issue should be clearly addressed 
in the final rule. Usually noise induced hearing loss is a 
symmetrical event so it would be reasonable to revise the baselines 
for both ears. If the baselines are to be revised individually one 
could anticipate more hearing losses being recorded than if they are 
revised in unison. Therefore, for Hearing Conservation Program 
statistics to be meaningful and comparable, baseline revision must 
be handled the same across industries (Ex. 15: 343).

    Shifts in hearing must be calculated separately for each ear, in 
accordance with the requirements of Sec. 1910.95. However, if a single 
audiogram reflects a loss of hearing in both ears, only one hearing 
loss case must be entered into the records. The issue of revising 
baseline audiograms to evaluate the extent of future hearing loss 
pertains to a hearing loss case that has been entered on the Log. If a 
single-ear STS loss has been recorded on the Log, then the baseline 
audiogram should be adjusted for that ear, and that ear only. If an STS 
affecting both ears has been recorded on the Log, then the baseline 
audiogram may be revised and applied to both ears. This means that 
there should be no cases where the baseline audiogram has been adjusted 
and the case has not been recorded on the Log.
    The Medical Educational Development Institute (Ex. 15: 25) made 
several recommendations for changing OSHA's noise standard, 29 CFR 
1910.95, to add specific steps to be taken when a 10 dB STS occurs, 
such as employee interviews, reevaluations with medical personnel, 
physician referral, labeling of revised baseline audiograms, and 
reassignment to quieter work for workers with a second or subsequent 
STS. These are interesting

[[Page 6013]]

recommendations, but they address issues that are beyond the scope of 
this rulemaking. This rulemaking is concerned only with the Part 1904 
requirements for recording occupational hearing loss on the OSHA 300 
Log, and does not affect any provision of the OSHA Occupational Noise 
standard.
    Phillips Petroleum (Ex. 15: 354) raised another miscellaneous issue 
when it suggested that OSHA phase in the recording of audiometric tests 
if a more protective definition of hearing loss was adopted in the 
final rule:

    [i]f OSHA insists on the recording of hearing loss at the 15 dB, 
it would artificially inflate the number of recordable hearing-loss 
cases and have a similar effect as that of the severity issue. We 
recommend that if the recordability bar is lowered from 25 dB], OSHA 
allow a transition period where a 15 dB shift is listed on the log, 
but is not counted in the recordable total. This should continue for 
a transition period of three years to allow facilities to identify 
all employees affected. Any employees who were not identified during 
the transition period would become recordables with a 15 dB hearing 
loss after the transition period.

    OSHA does not believe that a transition period is needed for the 
recording of occupational hearing loss or any other type of injury or 
illness included in the records. Adding such a provision would add 
unnecessary complexity to the rule, and would also create an additional 
change in the data that would make it difficult to compare data between 
the two years at the end of the transition. OSHA finds that it is 
better to implement the recordkeeping changes as a single event and 
reduce the impacts on the data in future years.
    As noted previously, OSHA is not making any changes to its noise 
standards in this Part 1904 rulemaking, and thus no additional 
protections are being provided in this final rule.

Section 1904.11 Additional Recording Criteria for Work-Related 
Tuberculosis Cases

    Section 1904.11 of the final rule being published today addresses 
the recording of tuberculosis (TB) infections that may occur to workers 
occupationally exposed to TB. TB is a major health concern, and nearly 
one-third of the world's population may be infected with the TB 
bacterium at the present time. There are two general stages of TB, 
tuberculosis infection and active tuberculosis disease. Individuals 
with tuberculosis infection and no active disease are not infectious; 
tuberculosis infections are asymptomatic and are only detected by a 
positive response to a tuberculin skin test. Workers in many settings 
are at risk of contracting TB infection from their clients or patients, 
and some workers are at greatly increased risk, such as workers exposed 
to TB patients in health care settings. Outbreaks have also occurred in 
a variety of workplaces, including hospitals, prisons, homeless 
shelters, nursing homes, and manufacturing facilities (62 FR 54159).
    The text of Sec. 1904.11 of the final rule states:
    (a) Basic requirement. If any of your employees has been 
occupationally exposed to anyone with a known case of active 
tuberculosis (TB), and that employee subsequently develops a 
tuberculosis infection, as evidenced by a positive skin test or 
diagnosis by a physician or other licensed health care professional, 
you must record the case on the OSHA 300 Log by checking the 
``respiratory condition'' column.
    (b) Implementation.
    (1) Do I have to record, on the Log, a positive TB skin test result 
obtained at a pre-employment physical?
    No, because the employee was not occupationally exposed to a known 
case of active tuberculosis in your workplace.
    (2) May I line-out or erase a recorded TB case if I obtain evidence 
that the case was not caused by occupational exposure?
    Yes. you may line-out or erase the case from the Log under the 
following circumstances:
    (i) The worker is living in a household with a person who has been 
diagnosed with active TB;
    (ii) The Public Health Department has identified the worker as a 
contact of an individual with a case of active TB unrelated to the 
workplace; or
    (iii) A medical investigation shows that the employee's infection 
was caused by exposure to TB away from work, or proves that the case 
was not related to the workplace TB exposure.
The Proposal
    The proposed rule included criteria for the recording of TB cases 
in proposed Appendix B. In that appendix, OSHA proposed to require the 
recording of cases of TB infection or disease at the time an employee 
first had a positive tuberculin skin test, except in those cases where 
the skin test result occurred before the employee was assigned to work 
with patients or clients. The proposal stated that cases of TB disease 
or TB infection would be presumed to be work-related if they occurred 
in an employee employed in one of the following industries: 
correctional facilities, health care facilities, homeless shelters, 
long-term care facilities for the elderly, and drug treatment centers. 
In other words, the proposal contained a ``special industries'' 
presumption for those industries known to have higher rates of 
occupational TB transmission. OSHA proposed to allow employers to rebut 
the presumption of work-relatedness if they could provide evidence that 
the employee had been exposed to active TB outside the work 
environment. Examples of such evidence would have included (1) the 
employee was living in a household with a person who had been diagnosed 
with active TB, or (2) the Public Health Department had identified the 
employee as a contact of an individual with a case of active TB. For 
employees working in industries other than the ``special'' industries, 
OSHA proposed that a positive skin test result be considered work-
related when the employee had been exposed to a person within the work 
environment who was known to have TB disease. Under the proposal, an 
employee exhibiting a positive skin test and working in industries 
other than those listed would otherwise not be presumed to have 
acquired the infection in the work environment (61 FR 4041). As noted 
in the proposal, these recording criteria for TB were consistent with 
those published previously in OSHA directives to the field (February 
26, 1993 memo to Regional Administrators). The final rule permits 
employers to rebut the presumption of work-relatedness in cases of TB 
infection among employees but does not rely on the ``special 
industries'' approach taken by OSHA in the proposal, for reasons 
explained below.
Positive Skin Tests
    Several comments in the record supported OSHA's proposed recording 
criteria for occupational TB cases (see, e.g., Exs. 15: 72, 133, 198). 
A number of commenters, however, questioned whether a positive 
tuberculin skin test reaction should be considered a recordable 
occupational illness (Ex. 15: 146, 188, 200). For example, BF Goodrich 
wrote:

    We disagree with a positive skin test reaction as the criterion 
for recording a TB case. Such tests are only indicative of a past 
exposure, not necessarily an illness or a condition. OSHA should 
allow diagnosing medical professionals to use their professional 
judgement to confirm active TB cases and restrict recordability to 
those cases (Ex. 15: 146).

    Kaiser Permanente (Ex. 15: 200) argued:

    The presumption that an initial positive skin test result or 
diagnosed tuberculosis in a health care employee is occupationally 
based is not warranted. While there have been outbreaks in health 
care facilities

[[Page 6014]]

documented in the literature, and while skin test conversion does 
occur in health care workers and may in given cases be 
occupationally related, the Kaiser Permanente experience has not 
been characterized by outbreaks or significant rates of skin test 
conversion. Diagnosed cases of tuberculosis among Kaiser Permanente 
health care workers are extremely rare.

    OSHA views the situation differently. A positive tuberculin skin 
test indicates that the employee has been exposed to Mycobacterium 
tuberculosis and has been infected with the bacterium. Although the 
worker may or may not have active tuberculosis disease, the worker has 
become infected. Otherwise, his or her body would not have formed 
antibodies against these pathogens. (OSHA is aware that, in rare 
situations, a positive skin test result may indicate a prior 
inoculation against TB rather than an infection.)
    OSHA believes that TB infection is a significant change in the 
health status of an individual, and, if occupational in origin, is 
precisely the type of illness Congress envisioned including in the OSHA 
injury and illness statistics. Contracting a TB infection from a 
patient, client, detainee, or other person in the workplace would cause 
serious concern, in OSHA's view, in any reasonable person. Once a 
worker has contracted the TB infection, he or she will harbor the 
infection for life. At some time in the future, the infection can 
progress to become active disease, with pulmonary infiltration, 
cavitation, and fibrosis, and may lead to permanent lung damage and 
death. An employee harboring TB infection is particularly likely to 
develop the full-blown disease if he or she must undergo chemotherapy, 
contracts another disease, or experiences poor health. According to 
OSHA's proposed TB rule (62 FR 54159), approximately 10% of all TB 
infections progress at some point to active disease, and it is not 
possible to predict in advance which individuals will do so.
    OSHA also believes that it is important to require employers to 
record TB cases when an employee experiences a positive skin test 
because doing so will create more timely and complete statistics. If, 
for example, OSHA were to require recording only when the worker 
develops active TB, many cases that were in fact occupational in origin 
would go unrecorded. In such cases, if the worker had retired or moved 
on to other employment, the employer would generally not know that the 
employee had contracted active TB disease, and the case would never be 
included in the Nation's occupational injury and illness statistics and 
important information would be lost. Thus, requiring the recording of a 
case at the infection stage will create more accurate, complete and 
useful statistics, one of the major goals of this rulemaking.
    Several commenters suggested that TB should not be recorded at all 
because, in their view, acquiring TB infection is not within the 
control of the employer and is not amenable to control by an employer's 
safety and health program (see, e.g., Exs. 15: 316, 348, 414, 423). For 
example, Raytheon Engineers & Constructors (Ex. 15: 414) argued that TB 
infection and disease should not be recorded because it ``is not due to 
a condition of the work environment under the control of the 
employer.'' Dupont argued along similar lines:

    It does not make sense to record tuberculosis cases where an 
infectious worker infects co-workers. That has nothing to do with 
job activity or with the workplace except as an accidental exposure. 
The same type of thinking could apply to flu symptoms, ``colds'', 
conjunctivitis, etc., where lack of personal hygiene or a strong 
``germ'' migrated through the workplace. If the exposure is not part 
of the job activity, none of the cases mentioned, including 
tuberculosis, should be recorded (Ex. 15: 348).

    As discussed elsewhere in this document (see the Legal Authority 
section above), Congress did not intend OSHA's recordkeeping system 
only to capture conditions over which the employer has complete control 
or the ability to prevent the condition. The Act thus supports a 
presumption of work-relatedness for illnesses resulting from exposure 
in the workplace, and the OSHA recordkeeping system has always 
reflected this position (although a few specific exceptions to that 
presumption are permitted, including an exception for common colds and 
flu). In accordance with that presumption, when an employee is exposed 
to an infectious agent in the workplace, such as TB, chicken pox, etc., 
either by a co-worker, client, patient, or any other person, and the 
employee becomes ill, workplace conditions have either caused or 
contributed to the illness and it is therefore work-related. Since, as 
discussed above, TB infection is clearly a serious condition, it is 
non-minor and must be recorded.
Employee-to-Employee Transmission
    Two commenters argued that transmission from employee to employee 
should not be considered work-related (Exs. 15: 39, 348). The RR 
Donnelley & Sons Company (Ex. 15: 39) pointed out that an employer 
``may never know that a fellow employee has tuberculosis. To record 
personal transmission from one employee to another goes beyond the 
scope of work relatedness.'' Other commenters agreed with OSHA that, at 
least under certain circumstances, employee-to-employee transmission 
should be considered work-related (see, e.g., Exs. 15: 78, 218, 361, 
398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated that 
``[i]f a worker with infectious tuberculosis disease infected their co-
worker, the co-workers' infection/disease would be recordable.''
    Again, as discussed above, OSHA believes, under the positional 
theory of causality, that non-minor illnesses resulting from an 
exposure in the work environment are work-related and therefore 
recordable unless a specific exemption to the presumption applies. 
Infection from exposure to another employee at work is no different, in 
terms of the geographic presumption, from infection resulting from 
exposure to a client, patient, or any other person who is present in 
the workplace. The transmission of TB infection from one employee to 
another person at work, including a co-worker, clearly is non-minor and 
is squarely within the presumption.
Special Industry Presumptions
    Many of the commenters supported OSHA's proposed approach of 
assuming work-relatedness for TB cases if the infection occurred in 
workers employed in certain special industries (see, e.g., Exs. 24, 15: 
78, 345, 376, 407). Other commenters suggested that OSHA abandon the 
proposed special industry presumption (see, e.g., Exs. 15: 197, 200, 
225, 259, 279, 302, 341, 431, 436). In the proposed rule, OSHA proposed 
different work-relatedness criteria for different work environments, 
i.e., in industries in which published reports of TB outbreaks were 
available from the Centers for Disease Control and Prevention (CDC), a 
special presumption would prevail, while in industries in which 
occupational transmission had not been documented it would not.
    Kaiser Permanente commented that the CDC ``Guidelines for 
Preventing the Transmission of Mycobacterium Tuberculosis in Health-
Care Facilities establish facility risk levels for occupational 
transmission of tuberculosis based upon assessment of a range of 
relevant criteria such as job duties, incidence of TB patients treated, 
and community TB rates'' and urged OSHA to follow these in the final 
rule (Ex. 15: 200).
    Two commenters objected to the inclusion of nursing homes in the 
list of


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