[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 e