[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
[[Page 5966]]
between types of injuries and illnesses into account, stating ``A
recurrence of a previous work-related injury or illness should only be
considered a new case when the injury or illness has completely healed.
Severe muscle and nerve damage can take many weeks or months to
properly heal.'' The final rule takes such differences into account, as
follows. If the previous injury or illness has not healed (signs and
symptoms have not resolved), then the case cannot be considered
resolved. The employer may make this determination or may rely on the
recommendation of a physician or other licensed health care
professional when doing so. Clearly, if the injured or ill employee is
still exhibiting signs or symptoms of the previous injury or illness,
the malady has not healed, and a new case does not have to be recorded.
Similarly, if work activities aggravate a previously recorded case,
there is no need to consider recording it again (although there may be
a need to update the case information if the aggravation causes a more
severe outcome than the original case, such as days away from work).
The Quaker Oats Company (Ex. 15: 289) suggested that employers
should be permitted by the rule to decide whether a given case was a
new case or not, without requirements in the rule:
The 45 day interval on determining if a case is a new one or
should be counted under a previous injury should be left to the
discretion of the employer. They have the most intimate knowledge of
the work environment, medical treatment of the affected employee and
the status of their work-related injury or illness. I will agree
that it is a difficult matter to decide and to assure consistency
throughout industry * * * I believe that any number of days would
simply be an arbitrary attempt at quantifying something that is best
left to the medical judgment of a healthcare professional.
Under the OSHA recordkeeping system, the employer is always the
responsible party when it comes to making the determination of the
recordability of a given case. However, if OSHA did not establish
consistent new case determination criteria, a substantial amount of
variability would be introduced into the system, which would undermine
the Agency's goals of improving the accuracy and consistency of the
Nation's occupational injury and illness data. Accordingly, OSHA has
not adopted this suggested approach in the final rule.
A number of commenters argued that the occurrence of a new event,
exposure, or incident should be required to trigger the recording of a
new case (see, e.g., Exs. 33, 15: 102, 171, 176, 231, 273, 301, 307,
308, 405, 410, 413, 425). Representative of these comments was one from
the Voluntary Protection Programs Participants' Association (VPPPA),
which recommended that OSHA ``adopt a definition for new case that
requires the occurrence of a new work-related event to trigger a new
case. In the absence of this, the case would be considered recurring''
(Ex. 15: 425). OSHA agrees with the VPPPA that if no further event or
exposure occurs in the workplace to aggravate a previous injury or
illness, a new case need not be recorded. However, if events or
exposures at work cause the same symptoms or signs to recur, the final
rule requires employers to evaluate the injury or illness to see if it
is a new case and is thus recordable.
The OSHA statistical system is designed to measure the incidence,
rather than prevalence, of occupational injury and illness. Incidence
measures capture the number of new occupational injuries and illnesses
occurring in a given year, while prevalence measures capture the number
of such cases existing in a given year (prevalence measures thus
capture cases without regard to the year in which they onset).
Prevalence measures would therefore capture all injuries and illnesses
that occurred in a given year as well as those unresolved injuries and
illnesses that persist from previous years. The difference is
illustrated by the following cases: (1) A worker experiences a cut that
requires sutures and heals completely before the year ends; this injury
would be captured both by an incidence or prevalence measure for that
particular year. (2) Another worker retired last year but continues to
receive medical treatment for a work-related respiratory illness that
was first recognized two years ago. This case would be captured in the
year of onset and each year thereafter until it resolves if a
prevalence measure is used, but would be counted only once (in the year
of onset) if an incidence measure is used.
Because the OSHA system is intended to measure the incidence of
occupational injury and illness, each individual injury or illness
should be recorded only once in the system. However, an employee can
experience the same type of injury or illness more than once. For
example, if a worker cuts a finger on a machine in March, and is then
unfortunate enough to cut the same finger again in October, this worker
has clearly experienced two separate occupational injuries, each of
which must be evaluated for its recordability. In other cases, this
evaluation is not as simple. For example, a worker who performs
forceful manual handling injures his or her back in 1998, resulting in
days away from work, and the case is entered into the records. In 1999
this worker has another episode of severe work-related back pain and
must once again take time off for treatment and recuperation. The
question is whether or not the new symptoms, back pain, are continuing
symptoms of the old injury, or whether they represent a new injury that
should be evaluated for its recordability as a new case. The answer in
this case lies in an analysis of whether or not the injured or ill
worker has recovered fully between episodes, and whether or not the
back pain is the result of a second event or exposure in the workplace,
e.g., continued manual handling. If the worker has not fully recovered
and no new event or exposure has occurred in the workplace, the case is
considered a continuation of the previous injury or illness and is not
recordable.
One reason for the confusion that is apparent in some of the
comments on the proposal's approach to the recording of recurrences may
be the custom that developed over the years of referring to recordable
recurrences of work-related injuries and illnesses as ``new cases.''
See for example, 61 FR 4037/1 (``employers may be dealing with a re-
injury or recurrence of a previous case and must decide whether the
recurrence is a ``new case'' or a continuation of the original case.'')
The term ``new case'' tends to suggest to some that the case is totally
original, when in fact new cases for OSHA recordkeeping purposes
include three categories of cases; (1) totally new cases where the
employee has never suffered similar signs or symptoms while in the
employ of that employer, (2) cases where the employee has a preexisting
condition that is significantly aggravated by activities at work and
the significant aggravation reaches the level requiring recordation,
and (3) previously recorded conditions that have healed (all symptoms
and signs have resolved) and then have subsequently been triggered by
events or exposures at work.
Under the former rule and the final rule, both new injuries and
recurrences must be evaluated for their work-relatedness and then for
whether they meet one or more of the recording criteria; when these
criteria are met, the case must be recorded. If the case is a
continuation of a previously recorded case but does not meet the ``new
case'' criteria, the employer may have to update the OSHA 300 Log entry
if the original case continues to progress, i.e., if the status of the
case worsens. For example, consider a case where an
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employee has injured his or her back lifting a heavy object, the injury
resulted in medical treatment, and the case was recorded as a case
without restricted work or days away. If the injury does not heal and
the employer subsequently decides to assign the worker to restricted
work activity, the employer is required by the final rule to change the
case classification and to track the number of days of restricted work.
If the case is a previous work-related injury that did not meet the
recording criteria and thus was not recorded, future developments in
the case may require it to be recorded. For example, an employee may
suffer an ankle sprain tripping on a step. The employee is sent to a
health care professional, who does not recommend medical treatment or
restrictions, so the case is not recorded at that time. If the injury
does not heal, however, and a subsequent visit to a physician results
in medical treatment, the case must then be recorded.
OSHA and employers and employees need data on recurring cases
because recurrence is an important indicator of severity over the long
term. Just as the number of days away is a useful indicator of health
and safety risk at a particular establishment, so is the total number
of injury and illness events and of exposures resulting in health
consequences that occur in an establishment or industry. Further, any
realistic assessment of occupational safety and health conditions
should reflect the fact that some but not all injuries and illnesses
have long-term consequences. In other words, a safety and health
analysis should give less weight to an injury or illness that has a
clear and relatively quick recovery without impairment of any kind and
an injury or illness that is chronic in nature or one that involves
recurring episodes that are retriggered by workplace events or
exposures.
Ignoring the fact that an occupational injury or illness is a
recurrence occasioned by an event or exposure in the workplace would
result in an underestimate of the true extent of occupational injury
and illness and deprive employers, employees, and safety and health
professionals of essential information of use in illness prevention.
The other extreme, requiring employers to record on-going signs or
symptoms repeatedly, even in the absence of an event or exposure in the
workplace, would result in overstating the extent of illness. In terms
of the recordkeeping system, deciding how most appropriately to handle
new cases requires a balanced approach that minimizes both
overrecording and underrecording. OSHA has dealt with this problem in
the final rule by carefully defining the circumstances under which a
chronic and previously recorded injury or illness must be considered
closed and defining the circumstances under which a recurrence is to be
considered a new case and then evaluated to determine whether it meets
one or more of the recordability criteria.
OSHA's proposal to apply a single criterion to the determination of
the recordability of all recurrences of previously recorded injuries
and illnesses received support from several commenters (see, e.g., Exs.
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria
for determining whether any injury or illness, including a
musculoskeletal disorder, is to be treated as a new case or as the
continuation of an ``old'' injury or illness. First, if the employee
has never had a recorded injury or illness of the same type and
affecting the same part of the body, the case is automatically
considered a new case and must be evaluated for recordability. This
provision will handle the vast majority of injury and illness cases,
which are new cases rather than recurrences or case continuations.
Second, if the employee has previously had a recorded injury or illness
of the same type and affecting the same body part, but the employee has
completely recovered from the previous injury or illness, and a new
workplace event or exposure causes the injury or illness (or its signs
or symptoms) to reappear, the case is a recurrence that the employer
must evaluate for recordability.
The implementation section of Sec. 1904.6 describes these
requirements and includes explanations applying to two special
circumstances. In the first case, paragraph 1904.6(b)(1) the employee
has experienced a chronic injury or illness of a type that will
progress regardless of further workplace exposure. Cases to which this
provision applies are serious, chronic illness conditions such as
occupational cancer, asbestosis, silicosis, chronic beryllium disease,
etc. These occupational conditions generally continue to progress even
though the worker is removed from further exposure. These conditions
may change over time and be associated with recurrences of symptoms, or
remissions, but the signs (e.g., positive chest roentgenogram, positive
blood test) generally continue to be present throughout the course of
the disease.
The second kind of case, addressed in paragraph 1904.6(b)(b)(2),
requires employers to record chronic illness cases that recur as a
result of exposures in the workplace. These conditions might include
episodes of occupational asthma, reactive airways dysfunction syndrome
(RADS), or contact allergic dermatitis, for example.
Paragraph 1904.6(b)(3) recognizes the role of physicians and other
licensed health care professionals that the employer may choose to rely
on when tracking a ``new case'' or making a continuation of an old case
determination. If a physician or other licensed health care
professional determines that an injury or illness has been resolved,
the employer must consider the case to be resolved and record as a new
case any episode that causes the signs and symptoms to recur as a
result of exposure in the workplace. On the other hand, if the HCP
consulted by the employer determines that the case is a chronic illness
of the type addressed by paragraph 1904.6(b)(1), the employer would not
record the case again. In either case, the employer would evaluate it
for work-relatedness and then determine whether the original entry
requires updating or the case meets the recording criteria. Paragraph
(b)(3) also recognizes that the employer may ask for input from more
than one HCP, or the employer and employee may each do so, and in such
cases, the rule requires the employer to rely on the one judged by the
employer to be most authoritative.
Adding a Recurrence Column to the OSHA 300 Log
In the proposal, OSHA asked commenters whether the Log should
include a column with a check-box that could be marked if a case was a
recurrence of a pre-existing condition (61 FR 4037). Some commenters
supported the proposed approach (see, e.g., Exs. 15: 27, 39, 61, 65,
89, 154, 186, 214, 235, 277, 299, 305, 332, 336). For example, the
National Association of Manufacturers (NAM) suggested that, in lieu of
adopting a 45-day time limit, OSHA should add a column to the Log: ``If
the Agency believes there is a need to track the number of recurring
cases, we believe the better approach would be to add a column to the
log which would permit the original entry for each injury or illness to
be updated in the event of a recurrence'' (Ex. 15: 305). The American
Association of Homes and Services for the Aging (AAHSA) agreed:
[t]here should be a column on the injury and illness log for
employers to check for reoccurring injuries. This addition would
help the employer to identify possible patterns or problems
associated with a specific job and find solutions. Recommendation:
Add a column to the injury and illness log allowing the employer
[[Page 5968]]
to check when an employee is having a repetitive injury or illness
(Ex. 15: 214).
Other commenters did not support the proposal's approach to
tracking recurrences (see, e.g., Exs. 15: 70, 78, 136, 137, 141, 151,
152, 179, 180, 194, 224, 266, 278). The comments of Kathy Lehrman, RN,
Occupational Health Nurse (Ex. 15: 136) are representative of these
comments:
The addition of a column to record recurrent conditions would
not reduce the stigma and would lead to increased health care
provider visits to avoid having an ongoing case labeled as a new
case. * * * I do not see the value of including a new category of
case designation. This runs counter to the simplification objective.
After a review of the comments on this issue, OSHA has decided not
to include such a check-box on the Log. The final rule adds several
columns to the OSHA 300 form to collect data on the number of
restricted workdays and on various types of occupational injuries and
illnesses. The addition of these columns, and the decision to provide
more space on the Log to add information on the case, has used up the
available space on the form. Requiring employers to record recurrences
would also be burdensome and make the rule more complex. Further, OSHA
did not propose such a requirement, and this issue raises questions not
adequately aired in the record. For example, if an employee has
recurring episodes of low back pain, should the employer be required to
record each day the employee experiences such pain as a recurring
injury? OSHA is also unsure how recurrence data should be captured and
used in the Nation's injury and illness statistics. For example, would
a separate data set on recurrences, similar to data on injuries and
illnesses, be produced by the BLS?
OSHA has therefore decided that it is not appropriate to add a
column to the Log to capture data on recurring injuries and illnesses.
However, OSHA recognizes that data on injury and illness recurrence may
be useful to employers and employees at individual worksites and
encourages employers who wish to collect this additional information to
do so; however, the final rule does not require employers to provide
recurrence data on the Log.
Section 1904.7 General Recording Criteria
Section 1904.7 contains the general recording criteria for
recording work-related injuries and illnesses. This section describes
the recording of cases that meet one or more of the following six
criteria: death, days away from work, restricted work or transfer to
another job, medical treatment beyond first aid, loss of consciousness,
or diagnosis as a significant injury or illness by a physician or other
licensed health care professional.
Paragraph 1904.7(a)
Paragraph 1904.7(a) describes the basic requirement for recording
an injury or illness in the OSHA recordkeeping system. It states that
employers must record any work-related injury or illness that meets one
or more of the final rule's general recording criteria. There are six
such criteria: death, days away from work, days on restricted work or
on job transfer, medical treatment beyond first aid, loss of
consciousness, or diagnosis by a physician or other licensed heath care
professional as a significant injury or illness. Although most cases
are recorded because they meet one of these criteria, some cases may
meet more than one criterion as the case continues. For example, an
injured worker may initially be sent home to recuperate (making the
case recordable as a ``days away'' case) and then subsequently return
to work on a restricted (``light duty'') basis (meeting a second
criterion, that for restricted work). (see the discussion in Section
1904.29 for information on how to record such cases.)
Paragraph 1904.7(b)
Paragraph 1904.7(b) tells employers how to record cases meeting
each of the six general recording criteria and states how each case is
to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a
simple decision table listing the six general recording criteria and
the paragraph number of each in the final rule. It is included to aid
employers and recordkeepers in recording these cases.
1904.7(b)(2) Death
Paragraph 1904.7(b)(2) requires the employer to record an injury or
illness that results in death by entering a check mark on the OSHA 300
Log in the space for fatal cases. This paragraph also directs employers
to report work-related fatalities to OSHA within 8 hours and cross
references the fatality and catastrophe reporting requirements in
Sec. 1904.39 of the final rule, Reporting fatalities and multiple
hospitalizations to OSHA.
Paragraph 1904.7(b)(2) implements the OSH Act's requirements to
record all cases resulting in work-related deaths. There were no
comments opposing the recording of cases resulting in death. However,
there were several comments questioning the determination of work-
relatedness for certain fatality cases and the appropriateness of
reporting certain kinds of fatalities to OSHA. These comments are
addressed in the sections of this preamble devoted to work-relationship
and fatality reporting (sections 1904.5 and 1904.39, respectively).
Paragraph 1904.7(b)(3) Days Away From Work
Paragraph 1904.7(b)(3) contains the requirements for recording
work-related injuries and illnesses that result in days away from work
and for counting the total number of days away associated with a given
case. Paragraph 1904.7(b)(3) requires the employer to record an injury
or illness that involves one or more days away from work by placing a
check mark on the OSHA 300 Log in the space reserved for day(s) away
cases and entering the number of calendar days away from work in the
column reserved for that purpose. This paragraph also states that, if
the employee is away from work for an extended time, the employer must
update the day count when the actual number of days away becomes known.
This requirement continues the day counting requirements of the former
rule and revises the days away requirements in response to comments in
the record.
Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic
requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not
to count the day of the injury or illness as a day away, but is to
begin counting days away on the following day. Thus, even though an
injury or illness may result in some loss of time on the day of the
injurious event or exposure because, for example, the employee seeks
treatment or is sent home, the case is not considered a days-away-from-
work case unless the employee does not work on at least one subsequent
day because of the injury or illness. The employer is to begin counting
days away on the day following the injury or onset of illness. This
policy is a continuation of OSHA's practice under the former rule,
which also excluded the day of injury or onset of illness from the day
counts.
Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to
record days-away cases when a physician or other licensed health care
professional (HCP) recommends that the injured or ill worker stay at
home or that he or she return to work but the employee chooses not to
do so. As these paragraphs make clear, OSHA requires employers to
follow the physician's or HCP's recommendation when recording the case.
Further, whether the employee works or not is in the control of the
[[Page 5969]]
employer, not the employee. That is, if an HCP recommends that the
employee remain away from work for one or more days, the employer is
required to record the injury or illness as a case involving days away
from work and to keep track of the days; the employee's wishes in this
case are not relevant, since it is the employer who controls the
conditions of work. Similarly, if the HCP tells the employee that he or
she can return to work, the employer is required by the rule to stop
counting the days away from work, even if the employee chooses not to
return to work. These policies are a continuation of OSHA's previous
policy of requiring employees to follow the recommendations of health
care professionals when recording cases in the OSHA system. OSHA is
aware that there may be situations where the employer obtains an
opinion from a physician or other health care professional and a
subsequent HCP's opinion differs from the first. (The subsequent
opinion could be that of an HCP retained by the employer or the
employee.) In this case, the employer is the ultimate recordkeeping
decision-maker and must resolve the differences in opinion; he or she
may turn to a third HCP for this purpose, or may make the recordability
decision himself or herself.
Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account
for weekends, holidays, and other days during which the employee was
unable to work because of a work-related injury or illness during a
period in which the employee was not scheduled to work. The rule
requires the employer to count the number of calendar days the employee
was unable to work because of the work-related injury or illness,
regardless of whether or not the employee would have been scheduled to
work on those calendar days. This provision will ensure that a measure
of the length of disability is available, regardless of the employee's
work schedule. This requirement is a change from the former policy,
which focused on scheduled workdays missed due to injury or illness and
excluded from the days away count any normal days off, holidays, and
other days the employee would not have worked.
Paragraph 1904.7(b)(3)(v) tells the employer how to count days away
for a case where the employee is injured or becomes ill on the last day
of work before some scheduled time off, such as on the Friday before
the weekend or the day before a scheduled vacation, and returns to work
on the next day that he or she was scheduled to work. In this
situation, the employer must decide if the worker would have been able
to work on the days when he or she was not at work. In other words, the
employer is not required to count as days away any of the days on which
the employee would have been able to work but did not because the
facility was closed, the employee was not scheduled to work, or for
other reasons unrelated to the injury or illness. However, if the
employer determines that the employee's injury or illness would have
kept the employee from being able to work for part or all of time the
employee was away, those days must be counted toward the days away
total.
Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the
days away from work when the injury or illness has resulted in 180
calendar days away from work. When the injury or illness results in an
absence of more than 180 days, the employer may enter 180 (or 180+) on
the Log. This is a new provision of the final rule; it is included
because OSHA believes that the ``180'' notation indicates a case of
exceptional severity and that counting days away beyond that point
would provide little if any additional information.
Paragraph 1904.7(b)(3)(vii) specifies that employers whose
employees are away from work because of a work-related injury or
illness and who then decide to leave the company's employ or to retire
must determine whether the employee is leaving or retiring because of
the injury or illness and record the case accordingly. If the
employee's decision to leave or retire is a result of the injury or
illness, this paragraph requires the employer to estimate and record
the number of calendar days away or on restricted work/job transfer the
worker would have experienced if he or she had remained on the
employer's payroll. This provision also states that, if the employee's
decision was unrelated to the injury or illness, the employer is not
required to continue to count and record days away or on restricted
work/job transfer.
Paragraph 1904.(b)(3)(viii) directs employers how to handle a case
that carries over from one year to the next. Some cases occur in one
calendar year and then result in days away from work in the next year.
For example, a worker may be injured on December 20th and be away from
work until January 10th. The final rule directs the employer only to
record this type of case once, in the year that it occurred. If the
employee is still away from work when the annual summary is prepared
(before February 1), the employer must either count the number of days
the employee was away or estimate the total days away that are expected
to occur, use this estimate to calculate the total days away during the
year for the annual summary, and then update the Log entry later when
the actual number of days is known or the case reaches the 180-day cap
allowed in Sec. 1904.7(b)(3)(v).
Comments on the Recording of Days Away From Work
OSHA received a large number of comments on how days away should be
counted. The issues addressed by commenters included (1) whether to
count scheduled workdays or calendar days, (2) whether the day counts
should be ``capped,'' and, if so, at what level, (3) how to count days
away or restricted when employees are terminated or become permanently
disabled, and (4) how to handle cases that continue to have days away/
restricted from one year to the next.
Scheduled or calendar work days. OSHA proposed to count scheduled
workdays, consistent with its long-standing policy of excluding normal
days off such as weekends, holidays, days the facility is closed, and
prescheduled vacation days (61 FR 4033). The proposal asked the public
for input on which counting method--calendar days or scheduled work
days--would be better, stating that ``OSHA is considering a
modification to the concept of days away from work to include days the
employee would normally not have worked (e.g. weekends, holidays,
etc.). OSHA believes this change to calendar days would greatly
simplify the method of counting days away by eliminating the need to
keep track of, and subtract out, scheduled days off from the total time
between the employee's first day away and the time the employee was
able to return to full duty'' (61 FR 4033). The proposal also discussed
the potential benefits and pitfalls of counting calendar days:
Another potential benefit of changing to calendar days would be
that the day count would more accurately reflect the severity of the
injury or illness. The day count would capture all the days the
employee would not have been able to work at full capacity
regardless of work schedules. For example, if an employee, who
normally does not work weekends, is injured on a Friday and is
unable to work until the following Tuesday, the ``days away from
work'' would be three (3), using calendar days, rather than one (1)
day, using work days. If the same injury occurred on a Monday, the
day count would be three (3) using either calendar or workdays.
Changing the day count to calendar days would eliminate
discrepancies based upon work schedules. Thus, the day counts would
be easier to calculate and potentially more meaningful.
One of the potential problems with this change would be that
economic information on lost work time as a measure of the impact of
job related injuries and illnesses on work
[[Page 5970]]
life would no longer be available. Employers could, however,
estimate work time lost by applying a work day/calendar day factor
to the recorded day counts. OSHA solicits comment on the idea of
counting calendar days rather than work days, in particular, what
potential do these methods have for overstating (i.e. counting
calendar days) or understating (i.e. counting work days) the
severity of injuries and illnesses? (61 FR 4034)
OSHA received a large number of comments on the calendar day/
scheduled day issue. Many commenters suggested that OSHA track days
away from work using its former method of counting scheduled workdays
(see, e.g., Exs. 21; 30; 37; 15: 10, 16, 30, 42, 44, 48, 61, 66, 69,
78, 79, 89, 100, 107, 108, 119, 121, 122, 127, 130, 133, 146, 151, 152,
154, 159, 163, 170, 172, 179, 180, 200, 203, 204, 213, 214, 219, 226,
246, 260, 262, 265, 281, 287, 297, 299, 300, 304, 305, 307, 308, 341,
346, 356, 363, 364, 368, 373, 378, 384, 385, 387, 389, 390, 397, 401,
404, 410, 413, 414, 424, 426, 427, 431, 440, 443). Many commenters also
suggested that OSHA use calendar days instead of scheduled workdays to
track days away from work (see, e.g., Exs. 19; 44; 15: 26, 27, 31, 34,
44, 71, 75, 82, 105, 111, 119, 127, 136, 137, 138, 141, 153, 181, 182,
188, 198, 205, 218, 224, 233, 242, 263, 266, 269, 270, 271, 278, 310,
316, 326, 337, 345, 347, 350, 359, 369, 377, 391, 396, 405, 407, 409,
415, 418, 423, 425, 428, 429, 434, 438). The arguments of each group
fall loosely into two categories: which counting method provides the
most meaningful data and which method is least burdensome.
Arguing against counting calendar days, a number of commenters
stated that calendar days would overstate lost workdays and
artificially inflate or distort severity rates (see, e.g., Exs. 15: 10,
16, 42, 44, 69, 108, 119, 127, 130, 133, 146, 159, 163, 170, 195, 203,
213, 219, 281, 287, 297, 300, 304, 305, 307, 341, 356, 364, 373, 385,
389, 390, 397, 404, 410, 414, 424, 426, 431, 440, 443). Some commenters
also argued that the information would be ``false and misleading''
(see, e.g., Exs. 15: 287, 443), ``would not indicate true severity''
(Ex. 15: 108), or would make it difficult to compare data from the old
rule with data kept under the new rules (see, e.g., Exs. 37; 15: 44,
61, 130, 146, 226, 281, 297, 299, 300, 304, 341, 378, 384, 385, 397,
404, 426, 440). Typical of these views was the one expressed by the
American Trucking Associations (Ex. 15: 397), which stated that:
This provision serves no useful purpose. Its proponents
exaggerate the difficulty in computing days away from work under the
current regulation. Instead, it will only serve the purpose of
artificially increasing incidence and severity rates which would
falsely designate a given worksite as unsafe or delineate it as a
high hazard workplace. This false delineation of high hazardousness
would also result in the workplace being unfairly targeted by OSHA
for enforcement activities. In addition, this change would make it
difficult, if not impossible, for employers to compare previous lost
work day incidence rates with current rates. Such trend data is
invaluable to employers in tracking progress made in eliminating
workplace injuries and illnesses.
Other commenters, however, argued that calendar days would be a
better statistical measure (see, e.g., Exs. 15: 71, 75, 347, 425, 434,
438). For example, the American Waterways Shipyard Conference (Ex. 15:
75) stated:
AWSC would also urge that ``days away from work'' be counted by
calendar days rather than work days. This would ease the burden on
establishments in their recordkeeping and would also make the data
more useful. For example, an employee injured on Friday who does not
return to work until Tuesday is currently counted as one-day off the
job. If ``days away from work'' are calculated by calendar days,
then this same injury would be counted as three days. The three day
injury ruling is a more accurate indicator of the seriousness of the
injury.
The United Auto Workers (UAW) argued that: ``Calendar days are a
much better measure of severity or disability than actual days which
are adjusted for work schedule, vacations, layoffs and other extraneous
disruptions. Frankly, counting actual days is a waste of effort,
subject to manipulation and serves no public health purpose. It is
relic and should be eliminated. The only reason some employers might
wish to retain this measure is because they can generate a lower
number'' (Ex. 15: 438).
Other commenters were concerned that the change to counting
calendar days would have an unfair effect on firms that rely more
heavily on part-time workers, use alternative schedules, and/or use
planned plant shutdowns (see, e.g., Exs. 15: 42, 96, 121, 159, 163,
213, 219, 200, 262, 281, 299). For example, Dayton Hudson Corporation
(Ex. 15: 121) stated that:
DHC questions the concept of counting calendar days versus the
proposed scheduled work days in documenting days away from work.
Both methods have their value and also potential problems. The
calendar method would make it much easier for a company to record
the severity of an accident. However, this method would have a
significant effect on an industry such as retailing, since the
majority of our work force is part-time. If OSHA decides to go with
the calendar method, there needs to be clearly defined examples
referenced in the standard dealing with part-time workers.
Northrop Grumman Corporation (Ex. 15: 42) asserted that:
``[c]ounting calendar days for days away from work would have an
adverse impact on those companies, such as aerospace companies, which
routinely have shut downs for one or more weeks at a time. Employees
injured on the day prior to shut down would have to be recorded as
being injured, off work, for the entire time of the shut down.'' The
Texas Chemical Council (Ex. 15: 159) expressed concern about the impact
the change to calendar days might have on day counts involving
alternative schedules:
We believe the value of the reduced burden is not worth the
skewed data that may result. OSHA's proposal may yield accurate data
and better reflect severity when applied to work schedules following
an 8 hour day, Monday through Friday. However, many industries
utilize a 12 hour shift that provides periods of time off longer
than the normal two day weekends. The proposed method of counting
days could, for example, turn an injury requiring two days
recuperation time into a case requiring four or more days to be
counted. This would skew severity analysis utilizing days off data.
However, the Eli Lilly Company (Ex. 15: 434) argued that calendar
days would help equalize day counts: ``[a] calendar day count would
ensure employer consistency and comparability even when employers have
unique and variable shift works.''
Other commenters argued that scheduled workdays are a better
measurement because they measure economic impact and lost productivity
(see, e.g., Exs. 15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364,
367, 397). The Fertilizer Institute (Ex. 15: 154) argued that:
``Although such a change might simplify the counting of days, it will
make comparisons difficult for companies, trade and professional
associations, and government agencies that are trying to measure the
severity of injuries and illnesses in terms of productivity. In
addition to the health and safety of its employees, industry is
primarily concerned with the cost of work-related injuries and
illnesses, as they relate to lost productivity. Thus, the basis of the
lost work day, not the lost calendar day, is the most appropriate
measurement to use.'' The Society of the Plastics Industry, Inc. (Ex.
15: 364) urged OSHA to retain the scheduled days system because of its
usefulness in measuring the economic impact of job-related accidents
and the incentive such information provides for prevention efforts.
In addition to arguments about the preferred way of counting days
away, commenters discussed the issues of
[[Page 5971]]
simplification and the burden of counting days away from work with both
methods. A number of commenters supported using calendar days because
doing so would simplify the process and reduce burden (see, e.g., Exs.
15: 71, 75, 82, 136, 137, 141, 224, 242, 263, 266, 269, 270, 278, 347,
377, 415, 418, 423, 434). Two commenters made the point that using
calendar days would make it easier to use computer software to
calculate days away from work (Exs. 15: 347, 423). Representative of
the comments supporting the use of calendar days to reduce the
recording burden was the view of the Ford Motor Company (Ex. 15: 347):
The single most significant change that could be made to
simplify and reduce the burden of the current recordkeeping system
would be a change to a calendar count for days away from work. This
would eliminate the need to keep track of and subtract out any
scheduled days off from the time of the employee's first day away
until the time the employee was able to return to work. Of
additional importance, a calendar count approach would provide a
more accurate reflection of the severity of injuries and illnesses.
Currently, tracking days away from work is a particular problem
in that many individuals no longer work a traditional eight hours a
day, Monday through Friday. Some individuals work four days a week,
ten hours a day, others work every Saturday and/or Sunday, and some
individuals have their scheduled days off during the week. Different
employees in the same establishment commonly have different work
schedules. Different departments are commonly on ``down time'' while
the rest of the establishment may be in full operation. A calendar
count will simplify the calculation of days away from work for
alternative work schedules.
In comparison to the current system, a calendar count will
provide meaningful, consistent, and useful data, as well as provide
an accurate reflection of severity. The calendar day count will also
enhance the ability to develop software to standardize the
recordkeeping process.
In addition, the change to a calendar day count would enable
Ford Motor Company to free up highly trained personnel for more
productive and effective pursuits rather than tracking lost workdays
under the current system. The cost of these resources to track lost
workdays cases exceeds one million dollars per year.
Even some of the commenters who argued against OSHA's adoption of a
calendar day approach in the final rule acknowledged that counting
calendar days would be simpler but emphasized that this added
simplicity and reduction in burden would not offset the deleterious
effect of this change on the data (see, e.g., Exs. 15: 44, 61, 69, 121,
154, 159, 170, 195). The Institute for Interconnecting and Packaging
Electronic Circuits (IPC) said that: ``According to IPC member
companies, the potential simplification gains that may be achieved by
this proposal would not outweigh the gross overreporting and,
therefore, inaccurate data that would result'' (Ex. 15: 69).
Other commenters arguing against calendar days stated that counting
scheduled workdays is not difficult or onerous (see, e.g., Exs. 15:
107, 146, 387), that counting calendar days would not simplify the
counting of lost workdays (see, e.g., Exs. 15: 16, 119, 146, 281, 299,
304, 308, 341, 364, 367, 424), that counting calendar days would add to
the administrative burden (see, e.g., Exs. 15: 42, 146, 304, 308, 341,
364, 367, 431), that counting calendar days would add confusion (see,
e.g., Exs. 15: 204, 431), or that employers already report scheduled
workdays to workers' compensation and thus this information is already
available (see, e.g., Exs. 15: 367, 384). Commenters also cited the
need to change computer software systems if a shift to calendar days
was made (Ex. 15: 122) and argued that retaining scheduled workdays
would require less training than moving to calendar days (see, e.g.,
Exs. 15: 37, 122, 133, 304, 384). The BF Goodrich Company (Ex. 15: 146)
summed up these views:
BF Goodrich's business systems are set up to count and track
work days and work hours. We do not agree with the suggestion of
counting calendar days rather than actual work days for Days Away
From Work cases. Counting calendar days would improperly inflate the
severity incidence rates which are calculated based on actual hours
worked and defeat any efforts to perform trend analysis against
previous years. Use of calendar days would also require unnecessary
analysis of work capability for days that would not be worked
anyway. There would be no reduction in burden in a calendar day
system and there would be loss of severity trend analysis
capability.
A number of commenters pointed to the difficulty of analyzing days
away for injuries that occur just before scheduled time off, such as
before the weekend (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179,
226, 281, 299, 341, 363, 389, 414, 424). The Institute for
Interconnecting and Packaging Electronic Circuits (IPC) described the
following scenario:
[i]f a worker is injured on Friday, is sent home, and returns to
work on Monday, the alternative [calendar day] proposal would
require employers to count weekend days in the lost workday count.
IPC believes that this alternative proposal would not accurately
reflect the severity of the injury since, if the same injury had
occurred on a Monday, the worker might have been able to return to
work on Tuesday. (Ex. 15: 69)
United Parcel Service (UPS) was concerned about the accuracy of
employee reporting of injuries and illnesses under the calendar day
system:
[t]he cessation of the effects of an employee's injury or
illness cannot reliably be determined in the case of a worker who
``heals'' on the weekend. Thus, the number of days away from work
and their impact on the perception of serious incidents will be
substantially inflated. Indeed, it has been UPS's experience that a
disproportionate number of injuries are reported on Friday and
Monday; inclusion of claimed weekend injury, therefore, would
greatly inflate OSHA statistics with factors that honest observers
know to be linked, to some degree, with the universal attraction of
an extended weekend. The risk, moreover, is not merely inflated
numbers, but inflation of the apparent severity of those conditions
that are difficult to verify and that are therefore the most likely
resort of employees who would misreport a condition for time off
(Ex. 15: 424).
Another issue noted by commenters was the difficulty of getting
medical attention over the weekend. For example, the American Ambulance
Association (Ex. 15: 226) cautioned that ``The common practice of a
health care provider is to defer an employee's return to work until
after a weekend or holiday, due to limited staff resources for
evaluating employee status on those days,'' and the Sandoz Corporation
(Ex. 15: 299) noted that ``This change [to calendar days] would lead to
overstatement of the severity in cases of part-time employees due to
the difficulty of getting return-to-work clearance from medical
personnel.''
Two commenters (Exs. 15: 69, 15: 363) objected to counting calendar
days based on a belief that counting these days would raise their
workers' compensation insurance rates. For example, the Institute for
Interconnecting and Packaging Electronic Circuits (IPC) stated that
``Lost time is a major factor in insurance premiums for facilities. As
a result, a definition that would over-estimate lost time would
significantly raise facility insurance costs'' (Ex. 15: 69).
Patrick R. Tyson, a partner in the law firm of Constangy, Brooks &
Smith, LLC (Ex. 55X, pp. 99-100), strongly favored moving to a
calendar-day-count system, for the following reason:
[w]hat we've seen in some audits is companies that attempt to
try to control the number of days that would be counted as lost work
days by controlling the number of days that otherwise would be
worked.* * *
We * * * encountered one company that announced proudly in its
newsletter that one particular employee should be congratulated
because when she had to have surgery for carpal tunnel syndrome,
clearly work related * * * she chose to have that surgery during
[[Page 5972]]
her vacation so that the company's million man hours of work without
a lost time accident would not be interrupted. That doesn't make any
sense where we encourage those kinds of things * * * We ought to
consider a calendar count if only to address those kinds of
situations. I understand that would cause problems with respect to
those companies who use lost work days as a measure of the economic
impact of injuries and illnesses in the workplace, but I suspect
that a better measure of that would be worker's compensation. If
it's a lost work day, you're going to pay comp on it. * * *
OSHA agrees with some of the points made by those in favor of, and
those opposed to, changing over to calendar day counts. After a
thorough review of the arguments for each alternative, however, OSHA
has decided to require employers to count calendar days, both for the
totals for days away from work and the count of restricted workdays.
OSHA does not agree with those commenters who argued that the counting
of calendar days away from work would be a significant burden. The
Agency finds that counting calendar days is administratively simpler
than counting scheduled days away and thus will provide employers who
keep records some relief from the complexities of counting days away
from work (and days of restricted work) under the old system. For the
relatively simple injury or illness cases (which make up the great
majority of recorded cases) that involve a one-time absence from work
of several days, the calendar-day approach makes it much easier to
compare the injury/illness date with the return-to-work date and
compute the difference. This process is easier than determining each
employee's normal schedule and adjusting for normal days away,
scheduled vacations, and days the facility was not open. The calendar
method also facilitates computerized day counts. OSHA recognizes that,
for those injuries and illnesses that require two or more absences,
with periods of work between, the advantages of the calendar day system
are not as significant; OSHA notes, however, that injuries and
illnesses following this pattern are not common.
Changing to a calendar day counting system will also make it easier
to count days away or restricted for part-time workers, because the
difficulties of counting scheduled time off for part-time workers will
be eliminated. This will, in turn, mean that the data for part-time
workers will be comparable to that for full-time workers, i.e., days
away will be comparable for both kinds of workers, because scheduled
time will not bias the counting method. Calendar day counts will also
be a better measure of severity, because they will be based on the
length of disability instead of being dependent on the individual
employee's work schedule. This policy will thus create more complete
and consistent data and help to realize one of the major goals of this
rulemaking: to improve the quality of the injury and illness data.
OSHA recognizes that moving to calendar day counts will have two
effects on the data. First, it will be difficult to compare injury and
illness data gathered under the former rule with data collected under
the new rule. This is true for day counts as well as the overall number
and rate of occupational injuries and illnesses. Second, it will be
more difficult for employers to estimate the economic impacts of lost
time. Calendar day counts will have to be adjusted to accommodate for
days away from work that the employee would not have worked even if he
or she was not injured or ill. This does not mean that calendar day
counts are not appropriate in these situations, but it does mean that
their use is more complicated in such cases. Those employers who wish
to continue to collect additional data, including scheduled workdays
lost, may continue to do so. However, employers must count and record
calendar days for the OSHA injury and illness Log.
Thus, on balance, OSHA believes that any problems introduced by
moving to a calendar-day system will be more than offset by the
improvements in the data from one case to the next and from one
employer to another, and by the resulting improvements in year-to-year
analysis made possible by this change in the future, i.e., by the
improved consistency and quality of the data.
The more difficult problem raised by the shift to calendar days
occurs in the case of the injury or illness that results on the day
just before a weekend or some other prescheduled time off. Where the
worker continues to be off work for the entire time because of the
injury or illness, these days are clearly appropriately included in the
day count. As previously discussed, if a physician or other licensed
health care professional issues a medical release at some point when
the employee is off work, the employer may stop counting days at that
point in the prescheduled absence. Similarly, if the HCP tells the
injured or ill worker not to work over the scheduled time off, the
injury was severe enough to require days away and these must all be
counted. In the event that the worker was injured or became ill on the
last day before the weekend or other scheduled time off and returns on
the scheduled return date, the employer must make a reasonable effort
to determine whether or not the employee would have been able to work
on any or all of those days, and must count the days and enter them on
the Log based on that determination. In this situation, the employer
need not count days on which the employee would have been able to work,
but did not, because the facility was closed, or the employee was not
scheduled to work, or for other reasons unrelated to the injury or
illness.
Accordingly, the final rule adopts the counting of calendar days
because this approach provides a more accurate and consistent measure
of disability duration resulting from occupational injury and illness
and thus will generate more reliable data. This method will also be
easier and less burdensome for employers who keep OSHA records and make
it easier to use computer programs to keep track of the data.
Capping the Count of Lost Workdays
OSHA proposed to limit, or cap, the total number of days away from
work the employer would be required to record. This would have been a
departure from OSHA's former guidance for counting both days away from
work and restricted workdays. The former rule required the employer to
maintain a count of lost workdays until the worker returned to work,
was permanently reassigned to new duties, had permanent work
restrictions, or was terminated (or retired) for reasons unrelated to
the workplace injury or illness (Ex. 2, pp. 47-50).
OSHA's proposed regulatory text stated that ``[f]or extended cases
that result in 180 or more days away from work, an entry of ``180'' or
``180+'' in the days away from work column shall be considered an
accurate count'' (61 FR 4058). In the preamble to the proposal, OSHA
explained that day counts of more than 180 days would add negligible
information for the purpose of injury and illness case analysis but
would involve burden when updating the OSHA records. The proposed
preamble also asked several questions: ``Should the days away from work
be capped? Is 180 days too short or long of a period? If so, should the
count be capped at 60 days? 90 days? 365 days? or some other time
period?'' (61 FR 4033)
A large number of commenters supported a cap on day counts (see,
e.g., Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, 85, 89, 95, 105, 108,
111, 119, 120, 121, 127, 132, 133, 136, 137, 141, 146, 153, 159, 170,
173, 176, 180, 182, 185, 188, 194, 195, 198, 199, 203, 205, 213, 224,
231, 233, 239, 242, 260, 262, 263, 265, 266, 269, 270, 271, 273, 278,
283, 287, 288, 289, 297, 298, 301, 304, 307, 310,
[[Page 5973]]
316, 317, 321, 332, 334, 335, 336, 341, 345, 346, 347, 348, 351, 368,
373, 374, 375, 377, 378, 384, 385, 387, 389, 390, 392, 397, 401, 404,
405, 434, 437, 440, 442). The most common argument was that capping the
counts would reduce the burden on employers (see, e.g., Exs. 21; 33;
15: 82, 95, 111, 146, 154, 159, 170, 176, 182, 188, 213, 231, 260, 262,
265, 273, 288, 289, 297, 301, 304, 305, 310, 341, 345, 346, 373, 389,
390, 401, 442) and simplify the OSHA recordkeeping system (see, e.g.,
Exs. 21; 15: 188, 297, 373). Several commenters argued that such a
change would produce a ``significant'' reduction in burden and cost
(see, e.g., Exs. 15: 154, 159, 203, 297). The Miller Brewing Company
comment (Ex. 15: 442) was representative: ``We endorse this cap on the
days away from work (DAFW) calculation. Once a case reaches 180 days,
it is clearly recognized as a serious case. The requirement to
calculate days away from work beyond 180 is a time consuming
administrative exercise which provides no value-added information
relative to the severity of a given case. Again, we support this rule
change and OSHA's attempt to simplify the recordkeeping process.''
Commenters also pointed out that limiting the day counts would make
it easier to count days for cases that span two calendar years (see,
e.g., Exs. 15: 153, 194, 195, 289). Other commenters stated that it was
difficult to modify the former year's records (Ex. 15: 153) and that
the day count cap would ease the burden of tracking cases that span two
calendar years (Ex. 15: 289).
Several commenters stated that the benefits of recording extended
day counts were insignificant (see, e.g., Exs. 15: 111, 159, 176, 184,
260, 262, 265, 288, 297, 373, 401, 430, 434, 442), that they added
negligible information for case analysis or safety and health program
evaluation (Ex. 15: 434), and that there was no ``value added
information'' from high day counts (see, e.g., Exs. 15: 260, 262, 265,
401, 442). Others stated that capping the day counts would provide
``adequate data'' (see, e.g., Exs. 15: 111, 159, 304, 345) and that
there would be no loss of significant data for analysis (see, e.g.,
Exs. 15: 170, 184, 297, 341, 373). The McDonnell Douglas Corporation
(Ex. 15: 297) argued that a cap ``[w]ould allow industry to avoid the
significant and costly paperwork burdens associated with tracking lost
workdays, without any appreciable reduction in OSHA's ability to
identify significant workplace injuries and illnesses or to assure
continuing improvement in workplace safety and health.''
Support for capping the count of days away from work was not
unanimous, and several commenters opposed a day count cap (see, e.g.,
Exs. 15: 31, 62, 197, 204, 225, 277, 294, 302, 350, 359, 369, 379). The
National Safety Council stated that ``[n]o cap on counting lost
workdays is necessary provided that the count automatically ends with
termination, retirement, or entry into long-term disability. Only a
small proportion of cases have extended lost workday counts so there is
little additional recordkeeping burden. The additional information
gained about long-term lost workday cases is important and keeps
employers aware of such cases'' (Ex. 15: 359). Other commenters
stressed that it was important to obtain an accurate accounting of days
away to assess the severity of the case (see, e.g., Exs. 15: 294, 379,
429, 440), that the counts were needed to make these cases visible
(see, e.g., Exs. 15: 294, 440), and that the counts demonstrate the
impact of long term absences (Ex. 15: 62). For example, the Boeing
Company (Ex. 15: 294) argued that
If the count is suspended after 180 days (or any other arbitrary
number), an employer will lose valuable information regarding the
true amount of lost work days and their associated costs. The
experience of The Boeing Company indicates that there are a small
number of cases that have many more than 180 days. The result is a
disproportionate amount of total costs. Not having visibility of
these cases would be a mistake.
The United Steelworkers of America (USWA) offered several reasons
for not adopting a day count cap: ``The USWA also strongly opposes
capping lost work day cases at 180. We believe that no cap is necessary
or desirable. Only a very small proportion of cases have extended lost
workdays recorded so there is little additional recordkeeping burden.
The additional information gained about long-term lost workday cases is
important in evaluating the severity of the injury and it keeps
attention on such cases'' (Ex. 15: 429).
The International Brotherhood of Teamsters (IBT) opposed the
capping of day counts on the basis that the OSH Act requires
``accurate'' records, stating that:
The IBT opposes the elimination of counting the days of
restricted work activity and opposes capping the count of ``days
away from work'' at 180 days. The IBT uses the restricted work
activity day count to gauge the severity of an injury or illness. We
are supported by the OSH Act, section 24(a) ``the Secretary shall
compile accurate statistics on work injuries and illnesses which
shall include all disabling, serious, or significant injuries or
illnesses. * * *. The International Brotherhood of Teamsters
maintains that the recording of restricted work activity day counts
and counting of days away from work enables OSHA to compile accurate
data on serious and significant injuries. (Ex. 15: 369)
After a review of the evidence submitted to the record, OSHA has
decided to include in the final rule a provision that allows the
employer to stop counting days away from work or restricted workdays
when the case has reached 180 days. OSHA's primary reason for this
decision is that very few cases involve more than 180 days away or days
of restricted work, and that a cap of 180 days clearly indicates that
such a case is very severe. Continuing to count days past the 180-day
cap thus adds little additional information beyond that already
indicated by the 180-day cap.
Selection of the Day Count Cap
A large number of commenters specifically supported the 180 day cap
proposed by OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121,
127, 136, 137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260,
262, 263, 265, 266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368,
377, 385, 401, 404, 423, 430, 437, 442). The Chemical Manufacturers
Association (CMA) stated that ``CMA supports the use of a cap on the
number of days away from work that must be counted. Once an employee
misses more than 180 days from work * * * due a workplace injury or
illness, the relative seriousness of the incident is determined and
little benefit is derived from continuing to count the number of days
for OSHA's recordkeeping system.'' The Fertilizer Institute (Ex. 15:
154) supported 180 days because it ``is consistent with most corporate
long-term disability plans.''
Many commenters who supported a cap on counting days away
recommended that OSHA adopt a number of days other than 180 (see, e.g.,
Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182,
185, 188, 194, 195, 198, 199, 203, 213, 239, 246, 271, 272, 287, 289,
297, 303, 304, 305, 307, 308, 317, 336, 347, 348, 351, 375, 378, 384,
385, 404, 405, 407, 409, 410, 414, 425, 431, 434). The most common
argument against capping at 180 days was that a few very serious cases
would skew the statistical data (see, e.g., Exs. 15: 75, 180, 246, 271,
385, 409). Hoffman-La Roche, Inc. argued for 90 days on the grounds
that ``90 days is more than sufficient to get a read on the severity of
the injury/illness. This would enable employers to obtain meaningful
data that is not skewed by one or two cases'' (Ex. 15: 271).
[[Page 5974]]
Commenters suggested a number of alternatives, including 30 days
(see, e.g., Ex. 15: 414); 60 days (see, e.g., Exs. 15: 60, 108, 119,
194, 203, 246, 287, 405); 60 or 90 (Ex. 15: 407); 90 days (see, e.g.,
Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303,
317, 336, 347, 378, 409, 410, 425, 431); 50 to 100 days (see, e.g.,
Exs. 37; 15: 384); 90 to 120 days (Ex. 15: 71); 90 or 180 days (Ex. 15:
434); 120 days (Ex. 15: 198); the equivalent of six months (see, e.g.,
Exs. 15: 82, 188, 199, 213, 304, 307, 308, 351, 375); one year (Ex. 15:
122); and 60 days after the beginning of the new year (see, e.g., Ex.
15: 195).
The most common alternative recommended by commenters was 90 days
(see, e.g., Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272,
289, 297, 303, 317, 336, 347, 378, 409, 410, 425, 431). These
commenters argued that 90 days would reduce the burden without a loss
of information (see, e.g., Exs. 15: 75, 85, 239, 297, 425), that 90
days is sufficient to determine severity (see, e.g., Exs. 15: 85, 105,
271 272, 289, 303, 410), that 90 days matches existing labor agreements
(see, e.g., Exs. 15: 378), and that 90 days limits the problems caused
by a case that extends over 2 years (see, e.g., Exs. 15: 407, 431).
NIOSH (Ex. 15: 407) commented that:
NIOSH agrees with OSHA that ``day counts greater than 180 days
add negligible information while entailing significant burden on
employers when updating OSHA records.'' Therefore, NIOSH agrees with
the concept of capping the count of days away from work at a maximum
of 180 days, and recommends that OSHA also consider caps of 60 or 90
days away from work.
Currently, the Annual Survey of Occupational Injuries and
Illnesses reports distributional data for the number of days away
from work and the median number of days away from work for
demographic (age, sex, race, industry, and occupation) and injury/
illness (nature, part of body, source, and event) characteristics.
The largest category of days away from work reported by the BLS for
days away from work is ``31 days or more.'' In 1992, the Annual
Survey reported median days away from work that ranged from 1 day to
236 days [U.S. Department of Labor 1995]. For most demographic and
injury/illness categories, capping the count of days away from work
at 180 days will not alter the values for either the percent of
injuries in the ``31 days or more'' category or median days away
from work.
OSHA may wish to consider capping the count of days away from
work at either the 60 or the 90 day level. Employers could be
instructed to enter a value of 61+(or 91+) to indicate that the
recorded injury or illness condition existed beyond the cap on the
count of days away from were based on the 1992 Annual Survey data,
no reported industry and only one reported occupation had a median
of greater than 60 days (dental hygienist, median = 71). There was
also a very small number of injury/illness characteristics with
medians between 60 and 90 days or with medians exceeding 90 days.
Eleven of the 13 instances in which the median exceeded 60 days away
from work were based on distributions involving a small number of
estimated cases i.e., only 100 to 400 nationally. Capping the count
of days away from work at either 60 or 90 days would still allow the
reporting of the proportion of cases involving days away from work
in the ``31 days or more category'' that is currently being reported
by the BLS. A minor limitation of capping the count of days away
from work at 60 or 90 days is that for a very small number of
characteristics, the median would have to be reported as exceeding
the cap.
Two commenters suggested that OSHA use months instead of days as
the measurement (Exs. 15: 304, 404), and a number of commenters pointed
out that OSHA's proposed 180 days should be 125 if based on 6 months of
actual workdays instead of calendar days (see, e.g., Exs. 15: 199, 213,
307, 308, 348).
After careful consideration, OSHA has decided to cap the day counts
at 180 days and to express the count as days rather than months. The
calendar month is simply too large and unwieldy a unit of measurement
for this purpose. The calendar-day method is the simplest method and
will thus produce the most consistent data.
OSHA has decided to cap the counts at 180 days to eliminate any
effect such capping might have on the median days away from work data
reported by BLS. This cap will continue to highlight cases with long
periods of disability, and will also reduce the burden on employers of
counting days in excess of 180. Using a shorter threshold, such as 90
or even 120 days, could impact the injury and illness statistics
published by the BLS, and could thus undermine the primary purpose of
this regulation: to improve the quality and utility of the injury and
illness data. Using a shorter time frame would also make it harder to
readily identify injuries and illnesses involving very long term
absences. The rule also does not require the employer to use the
designation of 180+ or otherwise require cases extending beyond 180
days to be marked with an asterisk or any other symbol, as suggested by
various commenters (see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407,
425). Employers who wish to attach such designations are free to do so,
but OSHA does not believe such designations are needed.
Counting Lost Workdays When Employees Are No Longer Employed by the
Company
The proposed rule contained a provision that would have allowed the
employer to stop counting the days away from work when the worker was
terminated for reasons unrelated to an injury or illness (61 FR 4058).
This provision would have continued OSHA's former policy on this
matter, which allowed the employer to stop counting days away or
restricted workdays when the employee's employment was terminated by
retirement, plant closings, or like events unrelated to the employee's
work-related injury or illness (Ex. 2, pp. 49, 50). The final rule, at
paragraph 1904.7(b)(3)(vii), permits employers to stop counting days
away if an injured or ill employee leaves employment with the company
for a reason unrelated to the injury or illness. Examples of such
situations include retirement, closing of the business, or the
employee's decision to move to a new job.
Paragraph 1904.7(b)(3)(vii) also requires employers whose employees
have left the company because of the injury or illness to make an
estimate of the total days that the injured or ill employee would have
taken off work to recuperate. The provisions in paragraph
1904.7(b)(3)(vii) also apply to the counting of restricted or
transferred days, to ensure that days are counted consistently and to
provide the simplest counting method that will collect accurate data.
OSHA's reasoning is that day counts continue to be relevant indicators
of severity in cases where the employee was forced to leave work
because of the injury or illness.
Handling Cases That Cross Over From One Year to the Next
A special recording problem is created by injury and illness cases
that begin in one year but result in days away from work or days of
restricted work in the next year. Under the former rule, the employer
was to record the case once, in the year it occurred, and assign all
days away and restricted days to that case in that year (Ex. 2, p. 48).
Under the rule being published today, this policy still applies. If the
case extends beyond the time when the employer summarizes the records
following the end of the year as required by Sec. 1904.32, the employer
is required by paragraph 1904.7(b)(3)(viii) to update the records when
the final day count is known. In other words, the case is entered only
in the year in which it occurs, but the original Log entry must
subsequently be updated if the day count extends into the following
year.
In addition to the NIOSH (Ex. 15: 407) comments on the day counts
summarized above, the Society for Human Resource Management (Ex. 15:
431) urged OSHA to adopt a lower day
[[Page 5975]]
count cap to limit the ``crossover'' problem. Two commenters urged OSHA
to take a new approach to cases that extend over two or more years.
Both the Laborers' Health & Safety Fund of North America (Ex. 15: 310)
and the Service Employees International Union (Ex. 15: 379) recommended
that these cases be recorded in each year, with the days for each year
assigned to the appropriate case. The Laborers' Health & Safety Fund of
North America (Ex. 15: 310) stated:
One concern with a large number of days away from work is how to
record the lost days which begin in one calendar year and end in a
following calendar year. We suggest that it is best to record the
number of days lost from the date of the injury to the end of the
calendar year, and to enter the injury again on the following year's
OSHA 300 with the remaining days of lost time up to the 180 day
maximum. A box should be available to indicate that the entry is a
continuation from the prior year.
As stated earlier, OSHA has decided on the 180 day cap for both
days away and days of restricted work cases to ensure the visibility of
work-related injuries and illnesses with long periods of disability.
The final rule also requires the employer to summarize and post the
records by February 1 of the year following the reference year.
Therefore, there will be some cases that have not been closed when the
records are summarized. Although OSHA expects that the number of cases
extending over two years will be quite small, it does not believe that
these cases warrant special treatment. A policy that would require the
same case to be recorded in two years would result in inaccurate data
for the following year, unless special instructions were provided.
Accordingly, the final rule requires the employer to update the Log
when the final day count is known (or exceeds 180 days), but to record
the injury or illness case only once. This approach is consistent with
OSHA's longstanding practice and is thus familiar to employers.
Miscellaneous Day Counting Issues
Two commenters provided additional comments for OSHA to consider on
the issue of counting days away from work. The Laborers' Health &
Safety Fund of North America (Ex. 15: 310) recommended that OSHA
require employers to enter a count of 365 days away from work on the
Log for any fatality case:
In a recent project we used OSHA 200 data from road construction
and maintenance employers to determine the causes and relative
severities of serious injuries. The number of lost workdays plus
restricted work activity days for an injury event or type was used
as a measure of severity. In quite a few individual injury cases,
the number of days away from work entry was not available because of
the severity of the injury or because the injury resulted in a
fatality. For recordkeeping purposes, we would suggest a maximum cap
of 180 days for a non-fatal serious injury of long duration, and an
automatic entry of 365 for fatalities. Using this method, the most
severe cases would be weighted appropriately, with fatalities
carrying the heaviest weight. Also, entering a lost workday number
for fatalities would enable fatalities to count in a single and
simple ``severity-weighted Lost Work Day Injury and Fatality (LWDIF)
rate''.
OSHA has not adopted the Laborers' Health & Safety Fund of North
America recommendation. OSHA believes that fatalities must be
considered separately from non-fatal cases, however severe the latter
may be. When an employee dies due to a work-related injury or illness,
the outcome is so severe and so important that it must be treated
separately. Merging the two types of cases would diminish the
importance of fatality entries and make the days away data less useful
for determining the severity of days away injury cases. Accordingly,
the final rule being published today does not reflect this
recommendation.
The Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look
at days of hospitalization as a measure of severity, stating ``[t]he
number of days hospitalized does provide a more objective indication of
the seriousness of injury or illness, if for no other reason than cost
control by insurance companies. If OSHA can document a legitimate use
for an indicator of the ``seriousness'' of an injury, it may want to
consider hospital stay time.'' OSHA has considered the use of
hospitalized days, but has rejected them as a measure of injury or
illness severity. Although these day counts may be a reasonable proxy
for severity, they are applicable only in a relatively small number of
cases.
Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job
Another class of work-related injuries and illnesses that Section
8(c) of the Act identifies as non-minor and thus recordable includes
any case that results in restriction of work or motion2 or transfer
to another job. Congress clearly identified restricted work activity
and job transfer as indicators of injury and illness severity.
---------------------------------------------------------------------------
2 The term restricted motion has been interpreted to mean
restricted work motion and to be essentially synonymous with
restricted work. OSHA does not distinguish between the two terms.
OSHA's former Guidelines (Ex. 2, p. 43) clearly stated that a
restriction of work or motion, such as that resulting from a
bandaged finger, that did not also impair work was not recordable,
and that is also the interpretation of the final rule.
---------------------------------------------------------------------------
In the years since OSHA has been enforcing the recordkeeping rule,
however, there has been considerable misunderstanding of the meaning of
the term ``restricted work,'' and, as a result, the recording of these
cases has often been inconsistent. The Keystone Report (Ex. 5), which
summarized the recommendations of OSHA stakeholders on ways to improve
the OSHA recordkeeping system, noted that restricted work was perhaps
the least understood of the elements of the system.
This section of the Summary and Explanation first discusses the
former recordkeeping system's interpretation of the term restricted
work, describes how the proposed rule attempted to revise that
interpretation, and then summarizes and responds to the comments OSHA
received on the proposed approach to the recording of work restriction
and job transfer cases. Finally, this section explains the final rule's
restricted work and job transfer requirements and OSHA's reasons for
adopting them.
The Former Rule
The former recordkeeping rule did not include a definition of
restricted work or job transfer; instead, the definition of these terms
evolved on the basis of interpretations in the BLS Guidelines (Ex. 2,
p. 48). The Guidelines stated that restricted work cases were those
cases ``where, because of injury or illness, (1) the employee was
assigned to another job on a temporary basis; or (2) the employee
worked at a permanent job less than full time; or (3) the employee
worked at his or her permanently assigned job but could not perform all
the duties connected with it.'' The key concepts in this interpretation
were that work was to be considered restricted when an employee
experienced a work-related injury or illness and was then unable, as a
result of that injury or illness, to work as many hours as he or she
would have been able to work before the incident, or was unable to
perform all the duties formerly connected with that employee's job.
``All duties'' were interpreted by OSHA as including any work activity
the employee would have performed over the course of a year on the job.
OSHA's experience with recordkeeping under the former system
indicated that employers had difficulty with the restricted work
concept. They questioned the need for keeping a tally of restricted
work cases, disagreed with the ``less than full time'' concept, or
[[Page 5976]]
were unsure about the meaning of ``all the duties connected with [the
job].'' (In OSHA's experience, employers have not generally had
difficulty understanding the concept of temporary job transfer, which
are treated in the same way as restricted work cases for recordkeeping
purposes. The following discussion thus focuses on restricted work
issues.) The changes OSHA proposed to make to the work restriction
concept (61 FR 4033) were intended to address these employer concerns.
The Proposed Rule
The proposal would have changed restricted work recordkeeping
practices markedly. For example, the proposal would have required
employers to acknowledge that the case involved restricted work by
placing a check in the restricted work column on the Log but would no
longer have required them to count the number of restricted work days
associated with a particular case. At the time of the proposal, OSHA
believed that dropping the requirement to count restricted days was
appropriate because the Agency lacked data showing that restricted work
day counts were being used by employers in their safety and health
programs. In addition, the proposal would have limited the work
activities to be considered by the employer in determining whether the
injured or ill worker was on restricted work. Under the former rule,
employers had to consider whether an injured or ill employee was able
to perform ``all the duties'' normally connected with his or her job
when deciding if the worker's job was restricted; OSHA interpreted
``all the duties'' to include any work activity the employee performed
at any time within a year. Under the proposal, the duties that the
employer would have been required to consider were narrowed to include
only (1) those work activities the employee was engaged in at the time
of injury or illness onset, or (2) those activities the employee would
have been expected to perform on that day (61 FR 4059). OSHA also
requested comment in the proposal on the appropriateness of limiting
the activities to be considered and on other definitions of work
activities that should be considered, e.g., would it be appropriate not
to consider an employee to be on restricted work if he or she is able
to perform any of his or her former job activities? (61 FR 4059).
Comments on the Proposed Rule's Restricted Work and Job Transfer
Provisions
The comments OSHA received on these provisions were extensive.
Commenters offered a wide variety of suggestions, including that OSHA
eliminate restricted work activity cases from the recordkeeping system
altogether, that the proposed definition of restricted work activity be
changed, that the proposed approach be rejected, that it be adopted,
and many other recommendations. These comments are grouped under topic
headings and are discussed below.
Eliminate the Recording of Restricted Work Cases
Several commenters recommended that OSHA completely eliminate the
recording of restricted work cases because, in the opinion of these
commenters, the concept confused employers, created disincentives to
providing light duty work or return-to-work programs, and provided no
useful information (see, e.g., Exs. 15: 119, 203, 235, 259, 336, 414,
427). For example, the American Bakers Association said, ``We believe
that the concept and definitions of `restricted work activity' should
be eliminated. That term and its proposed definition is so ambiguous as
to be unworkable, and information gleaned from that terminology would
have little reliability or usefulness'' (Ex. 15: 427).
The National Grain and Feed Association agreed, arguing that the
recording of restricted work cases should be eliminated on the
following grounds:
[w]e agree with the conclusion of the Keystone Report that ``the
recording of restricted work is perhaps the least understood and
least accepted concept in the recordkeeping system.'' We disagree
with OSHA, however, that the concept of restricted work is
meaningful. For example, there is a wide range of restrictions that
may be placed on an injured employee's activity after returning to
work depending on the nature of the injury (e.g., the range of work
possible for an employee who has experienced a slight sprain versus
an employee with a broken bone). Additionally, the concept of
restricted work is greatly dependent on individual employee
motivation and job description. * * * Importantly, we believe the
concepts embodied in the proposed restricted work definition run
counter to modern work practices that encourage workers to return to
productive work at the worksite. Workers who have experienced minor
injuries on the job can return to productive work under employer
``return-to-work'' programs. For this reason, the concept of
restricted work is arbitrary and ultimately of little use to either
evaluating the effectiveness of an employer's safety and health
programs or determining the exposure of workers to a hazard at a
specific worksite. We, therefore, recommend that the Agency delete
the category of restricted work injuries from the proposed changes
to 29 CFR 1904. Removal of this section will simplify the
recordkeeping system and make it more ``user friendly.'' We support
deletion of this category of injury because we think it will make
the system more complex and is inconsistent with current practices
of returning employees back to productive work at the earliest date
(Ex. 15: 119).
Revise the Proposed Definition of a Restricted Work Case
Most of the remaining comments recommended either that the
definition of restricted work in the final rule be revised to include a
more inclusive set of job activities or functions or a less inclusive
set. For example, the Small Business Administration (Ex. 51) was
concerned that:
[t]he new definition for classifying ``restricted work
activity'' could increase the number of cases that would be subject
to this standard, and subsequently, classified as a recordable
incident. Small businesses would face increased recordkeeping. Under
the proposed definition, a case would be determined as a
``restricted work activity'' if the employee cannot perform what he
or she was doing at the time of the illness or injury, or he or she
could not perform the activities scheduled for that day. While this
would be a very simple method, it would encompass more recordable
incidents. Many workers have a myriad of tasks associated with their
job. If an employee can return to work and perform functions within
their job description, this should not be considered ``restricted
work activity''. * * *
Several commenters recommended that OSHA rely on a definition of
restricted work that would focus on ``non productive work'' and exclude
the recording of any case where the employee was still productive (see,
e.g., Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). For example,
Countrymark Cooperative, Inc. (Ex. 15: 9) stated:
[w]e disagree with a portion of the definition for restricted
work activity. We agree that this should include injuries or
illnesses where the worker is not capable of performing at full
capacity for a full shift. However, by addressing the task that they
were engaged in at the time of the injury will create problems. Most
employees today have numerous assignments and responsibilities. They
move from one task to another during a given day and during a given
week. What they are doing at the time they are injured may not be
the assignment for the next day or the next week. In these cases,
they may be back at work in a fully productive role, but not doing
the same task as when they were hurt. If they are performing a fully
productive role within the same job description, but cannot perform
the role of the job they were doing at the time, they should not be
penalized. In many cases, this job task may not be active at the
time they return. * * * It should be very clear that the ability to
return an employee to a productive role (whether 50% or 100%) is
extremely important to any ``Return-to-Work'' Program. If that
person is returned to work and is
[[Page 5977]]
performing at full capacity in a given task within their job
description, this should not be recorded unless it meets other
criteria such as medical treatment. If we return to the days of
recording these and penalizing the employer, they may be inclined to
return to the days of only allowing employees to return to work when
they are 100% in all given tasks within their job description. If
this occurs, we all lose. * * * We do agree that any time an
employee is returned to work and is restricted to only perform
certain jobs, can only return for a limited duration, or must be
reassigned to another task, this should be recorded as a restricted
work case (Ex. 15: 9).
Others recommended that OSHA adopt the Keystone Report's definition
of restricted work (see, e.g., Exs. 15: 123, 129, 145, 225, 359, 379,
418). For example, the National Safety Council recommended:
[t]he concept of restricted work activity as described on page
4046 [of the Federal Register] is one with which the Council
concurs, but the specific wording in proposed section 1904.3 is less
clear. The colon following the opening clause of the definition ``at
full capacity for a full shift:'' seems to mean that the employee
must be able to perform the task during which he/she was injured and
the other tasks he/she performed or would have performed that day
not only for the normal frequency or duration, but ``at full
capacity for a full shift.'' For example, if the employee were
required to open a valve at the start of a shift and close it at the
end of the shift, the current wording seems to say that if the
employee could not spend the entire shift opening and closing the
valve, then his/her work activity is restricted. * * * The Council
also believes that the concept of restricted work activity as
formulated by the Keystone Report is appropriate in that it
represents a consensus among the various stakeholder groups. For
this reason, we also recommend that the task limitations refer to
the week's activities rather than the day's activities (Ex. 15:
359).
The Union of Needletrades, Industrial and Textile Employees (UNITE)
agreed with the National Safety Council that a different time period
should be used in determining what job activities to consider. UNITE
suggested that OSHA use the employee's monthly, rather than daily or
weekly, duties to define restricted work activity (Ex. 15: 380).
A few commenters expressed concern that use of the proposed
restricted work definition could lead employers to include unusual,
extraordinary or rarely performed duties in the ``work activities'' to
be considered when determining whether a case was a restricted work
case (see, e.g., Exs. 15: 80, 247). For example, the Arizona Public
Service Company said:
[d]etermining restricted duty days should remain as it currently
is in the Guidelines. The restriction should focus on the ability of
the employee to perform all or any part of his or her normal job
duties. Focusing on what specifically they were doing at the time of
injury could incorrectly base this determination on an activity that
is performed rarely. Also, focusing on what they were scheduled to
do for that week would not be useful for those whose schedules can
change daily (Ex. 15: 247).
Adopt the Americans With Disabilities Act Definition of Essential
Duties
The Laboratory Corporation of America's comment (Ex. 15: 127) was
typical of those of several commenters who suggested that OSHA use the
concept of essential job duties that is also used for the
administration of the Americans with Disabilities Act (ADA) (see, e.g.,
Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431):
[t]he definition used by the Americans with Disability Act (ADA)
would be very useful here. That definition indicates that restricted
work exists if an employee is unable to perform the essential
functions of his/her job. Since these essential functions are
identified in the employee's job description, the employer would
have a consistent ``yardstick'' with which to make this
determination for each employee.
Adoption of the Proposed Approach Will Lead to Underreporting
Some commenters, such as the AFL-CIO, opposed the proposed approach
to restricted work on the grounds that it would result in
underreporting:
[w]e believe this proposed provision would entice employers to
manipulate records and lead to further under-reporting. We strongly
suggest that the Agency adopt the Keystone Report recommendation of
restricted work which requires an employer to record if the employee
is (1) unable to perform the task he or she was engaged in at the
time of injury or onset of illness (task includes all facets of the
assignment the employee was to perform); or (2) unable to perform
any activity that he or she would have performed during the week
(Ex. 15: 418).
Other commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For
example, the United Brotherhood of Carpenters (UBC) Health & Safety
Fund of North America argued in favor of a broader definition to avoid
this problem:
[t]he majority of workers represented by the UBC, such as
carpenters and millwrights, routinely perform a wide variety of
tasks during their normal workdays in either construction or
industrial settings. Therefore, OSHA should not limit the
classification of ``restricted work activity'' to either ``the task
he or she was engaged in at the time of the injury'' or his or her
daily work activity (daily work activity includes all assignments
the employee was expected to perform on the day of the injury or
onset of illness)'' as proposed. The UBC feels that the current
proposal would allow for manipulation of the records and will lead
to serious under reporting. Many workplaces have armies of ``walking
wounded'' rather than reporting lost or restricted work activity.
OSHA should at the very least adopt the position of the Keystone
Report which recommended that restricted work activity should be
recorded if the employee is ``(1) unable to perform the task he or
she was engaged in at the time of the injury or onset of illness, or
(2) unable to perform any activity that he or she would have
performed during the week.'' The UBC believes that the best
definition of restricted work activity would be any illness or
injury which inhibits, interferes with, or prevents a worker from
performing any or all of the functions considered to be a normal
part of his or her trade or occupation as defined in the applicable
job description (Ex. 20).
Do Not Count Incidents Involving Only One or a Few Days as Restricted
Work
A number of commenters recommended that restricted work activity
involving only the day of injury/illness onset should not trigger an
OSHA recordable case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391). Typical of these comments is one from the Society of
the Plastics Industry, Inc.:
[e]mployers have had problems with OSHA's definition of
restricted work activity because OSHA's interpretation that having
any work restriction, even one which lasts only for the remainder of
the shift and which imposes no significant limitations on the
employee's ability to perform his or her job, makes a case
recordable. OSHA should adopt the administratively simple and
common-sense rule that restricted work activity on the day of the
case report does not make the case recordable. . . . The definition
of ``restricted work activity'' should be clarified to state that
the criteria apply only to days following the day of injury or onset
of the illness. An employee's inability to work a full shift on the
actual date of injury or onset of illness should not require
recording as a restricted work case. As noted above, because OSHA's
interpretation that having any work restriction, even one which
lasts only for the remainder of the shift and which imposes no
significant limitations on the employee's ability to perform his or
her job, makes a case recordable, many non-serious, non-disabling
cases are now recorded. Cases which do not otherwise meet the
recordability criteria should not be recordable. Therefore, as
recommended above, OSHA should eliminate the current requirement to
record cases in which restricted work activity occurs only on the
day of the case report (Ex. 15: 364).
The Kodak Company urged OSHA not to count cases involving
restrictions lasting only for three days as restricted work cases on
the grounds that such cases are ``minor'': ``Restricted work activity
allows employers and employees to remain at work. This is a win-win
situation for both. Kodak suggests restricted work activity be counted
only if the restriction lasts
[[Page 5978]]
longer than 3 working days. Hence, only serious cases would be
recorded'' (Ex. 15: 322).
Adopt the Proposed Approach
A large number of commenters supported OSHA's proposed definition,
however (see, e.g., Exs. 27, 15: 26, 61, 70, 133, 159, 171, 185, 199,
204, 242, 263, 269, 270, 272, 283, 303, 305, 307, 317, 318, 324, 334,
347, 351, 373, 375, 377, 378, 384, 390, 392, 405, 409, 413, 425, 430).
Typical of these were comments from the New Jersey Department of Labor
(Ex. 15: 70), which commented:
[p]roviding a clear definition of what constitutes restricted
work and an item to indicate that an injured employee has been
shifted to restricted work activity should improve the accuracy and
completeness of case reporting. Identifying the actual number of
cases in which employees are shifted to alternate work, which are
thought to be under reported, and adding the date when the employee
returned to his/her usual work will help to assess the impact of
these incidents.
The American Petroleum Institute, which believed that the proposed
definition would be easy to interpret and would therefore improve
recording consistency, stated: ``API strongly supports OSHA's proposed
definition of restricted activity. Because it is much more logical and
easy to understand than the current definition, API believes it will
lead to greater consistency'' (Ex. 15: 375).
Use Different Triggers Than Those Proposed
The Commonwealth Edison Company recommended that restricted work be
defined only in terms of the hours the employee is able to work, not
the functions the employee is able to perform:
[C]omEd disagrees with OSHA on its definition of ``restricted
work activity''. We propose that OSHA consider that restricted work
activity simply state ``Restricted work activity means the worker,
due to his or her injury or illness, is unable to work a full
shift.'' OSHA's proposed definition of restricted work activity is
even more confusing than the current one. ComEd's proposed
definition will allow quantifiable, direct cost tracking for this
category of injury or illness. Workers will more than likely have
some kind of meaningful work waiting for them if the injury is not
disabling. If he or she is able to work the required normal shift
hours, don't count the case as restricted. If they miss the entire
shift, count is as a day away from work. If they miss part of the
shift, count it as restricted (Ex. 15: 277).
Two commenters suggested that a case should only be considered
restricted when it involves both medical treatment and work
restrictions (Exs. 15: 9, 348). For example, the E. I. du Pont de
Nemours & Company (DuPont) said that the
``Restricted Work Activity'' definition is a definite
improvement over the current one. Suggest making treatment AND
restriction the criteria. An insignificant injury can result in
being told not to climb ladders. This does not negate the ability to
do the job; it just limits the job to levels where ladder climbing
is not required. * * * Restricted work activity is more dependent on
timing and job than on injury severity. It doesn't necessarily focus
on hazardous conditions. Certainly the definition in the proposed
guidelines is far more specific and appropriate than the current
one. We suggest consideration be given to dropping the Restricted
category where medical treatment is not also given. For example, a
slight muscle strain will result in advice not to climb ladders. The
case would be in the restricted category although the treatment, if
any, would be at the first aid level. Injury severity is the
equivalent of a cut finger'' (Ex. 15: 348).
Other comments sought a broader, more inclusive definition of
restricted work, one that relies on job descriptions (see, e.g., Exs.
15: 41, 62, 198, 426). For example, Robert L. Rowan, Jr. stated:
[t]he definition of ``restricted work activity'' also concerns
me and I believe it is unsuitable. The definition refers to an
employee who is not capable of performing at full capacity for a
full shift the ``task'' that he or she was engaged in at the time of
the injury or onset of illness. The definition should include ``any
and all tasks'' within the employee's clearly defined job
description'' (Ex. 15: 62).
The Maine Department of Labor, however, preferred the former rule's
interpretation, with some modifications:
[w]e agree that there should be no mention of ``normal'' duties
in the definition. Include: temporary transfer to a position or
department other than the position or department the worker was
working at when he/she was injured. Some of these can be detected on
payroll records; only being able to work part of their workday. Time
forms could raise suspicion here; a health care provider puts the
person on written restrictions unless the employer can show that the
restrictions listed do not impact the employee's ability to do his
or her scheduled job during the time period of the restrictions.
Keep a copy of the restrictions in the file. The doctor's name on
the OSHA 301 serves as another possible check (Ex. 15:41).
Miscellaneous Comments and Questions
There were also a variety of miscellaneous comments and questions
about the proposed approach to the recording of restricted work cases.
For example, Bob Evans Farms suggested that:
[w]hen considering this proposal, OSHA needs to keep in mind the
special nature of the restaurant business. It is not uncommon for a
cook to cut himself or herself, apply a Band-Aid, and then
temporarily be reassigned to janitorial work for a day or two to
keep the cut dry while it heals. This could be considered work duty
modification and would then need to be reported to OSHA. As you can
see, this type of minor occurrence would clog the system with
needless paper (Exs. 15: 3, 4, 5, 6).
Phibro-Tech, Inc. offered this comment:
[a] factory employee who normally performs heavy labor may be
assigned office work as a restricted work activity, and may not
actually be contributing anything meaningful to the job. Will
employers be required to limit what is considered ``light duty''
tasks? Will there be directives as to when an employee should really
be off work or when he can be on ``light duty''? Occupational
physicians all have different opinions as to when an employee can
return for light or full duty. It would be helpful to have more
direction on this issue so employees aren't sent back to work too
soon or kept off on lost time too long (Ex. 15: 35).
The law firm of Constangy, Brooks & Smith, LLC, asked, ``[w]ould a
restriction of piece rate or production rate be considered restricted
duty under the proposed definition even though it is not considered
restricted duty under the present guidelines?'' (Ex. 15: 428). Miller
Brewing Company added, ``[w]ould also recommend that OSHA attempt to
clarify whether a treating physician's [non-specific] return to work
instructions such as ``8 hours only,'' ``self restrict as needed,'' and
``work at your own pace'' will constitute restricted work activity
under the proposed recordkeeping rule'' (Ex. 15: 442).
The Pacific Maritime Association stated:
This is another example where the ILWU/PMA workforce does not
fit into the proposed recordkeeping system. The regulation as
written pertains to employers who assign their employees to work
tasks. As previously mentioned, in our industry it is the employee
who selects the job they will perform. This dispatch system, or job
selection process, presents many problems when the maritime industry
is required to conform to requirements established for traditional
employee/employer relationships found in general industry. At the
present time there is no method available to determine why an
individual longshoreman selects a specific job. Therefore, the
requirement to identify, track, and record ``restricted work
activity'' may be impossible to accomplish [in the maritime
industry] (Ex. 15: 95).
Preventive Job Transfers
Several commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged
OSHA to make some accommodation for ``preventive
[[Page 5979]]
transfers'' and medical removals. Many transfers and removals of this
nature are related to work-related musculoskeletal disorders and are
used to prevent minor musculoskeletal soreness from becoming worse. The
following comments are representative of the views of these commenters.
The Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) coalition
commented:
[t]his definition [the proposed definition of restricted work]
is overly broad, penalizes employers who have a light duty program
in place, and fails to take into account that (1) today's employees
increasingly are cross trained and perform varied tasks, and (2) the
ability of an employee to perform alternative meaningful work
mitigates the seriousness of the inability to perform work in the
two categories set out in the definition as proposed. The ODNSS
Coalition recommends curing these defects by adding the following
proviso to the proposed definition: ``The case should be recorded as
a restricted work case UNLESS the restrictive work activity is
undertaken to relieve minor soreness experienced by a newly hired or
transferred employee during a break-in phase to prevent the soreness
from worsening, or the employee otherwise is able to perform other
existing full-time duties.'' The appropriate nature of the
recommended proviso is underscored by a baseball analogy where the
right fielder and the center fielder change positions. They both
continue to play on the same team and make substantial
contributions, but the strain on the new right fielder is less
because he doesn't have as much ground to cover (Ex. 15: 406).
The National Association of Manufacturers (NAM) summed up its views
as follows:
[a] preventive or prophylactic measure such as medical removal
(as opposed to a restorative or curative measure) is not and should
not be deemed medical treatment, a job transfer or restricted
activity for purposes of recordability, in the absence of a
substantial impairment of a bodily function (Ex. 25).
Although Organization Resource Counselors (ORC) generally endorsed
the proposed approach to the treatment of restricted work cases, it did
express concern about how medical removal cases would be treated under
the proposed definition:
[t]he proposed definition of restricted work is a significant
improvement over the current [former] one, which was considered by
many employers to be unfair and confusing. It is no secret that many
employers did not understand the current restricted work rules and,
as a result, did not follow them consistently. Additionally, the
[proposed] elimination of the count of restricted workdays is
appropriate and is a recognition by OSHA that the recording of this
count is of little value to either the Agency or employers in
program evaluation or program development. * * * Additionally,
requirements for the recording of either voluntary or mandatory
medical removals where no additional symptoms are present are
examples of appropriate action taken by employers to prevent harm to
employees and not of a recordable injury or illness. * * *'' (Ex.
15: 358).
Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's
Reasons for Adopting Them
Paragraph 1904.7(b)(4) contains the restricted work and job
transfer provisions of the final rule. These provisions clarify the
definition of restricted work in light of the comments received and
continue, with a few exceptions, most of the former rule's requirements
with regard to these kinds of cases. OSHA finds, based on a review of
the record, that these provisions of the final rule will increase
awareness among employers of the importance of recording restricted
work activity and job transfer cases and make the recordkeeping system
more accurate and the process more efficient.
OSHA believes that it is even more important today than formerly
that the definition of restricted work included in the final rule be
clear and widely understood, because employers have recently been
relying on restricted work (or ``light duty'') with increasing
frequency, largely in an effort to encourage injured or ill employees
to return to work as soon as possible. According to BLS data, this
category of cases has grown by nearly 70% in the last six years. In
1992, for example, 9% of all injuries and illnesses (or a total of
622,300 cases) recorded as lost workday cases were classified in this
way solely because of restricted work days, while in 1998, nearly 18%
of all injury and illness cases (or a total of 1,050,200 cases) were
recorded as lost workday cases only because they involved restricted
work [BLS Press Release 99-358, 12-16-99). The return-to-work programs
increasingly being relied on by employers (often at the recommendation
of their workers' compensation insurers) are designed to prevent
exacerbation of, or to allow recuperation from, the injury or illness,
rehabilitate employees more effectively, reintegrate injured or ill
workers into the workplace more rapidly, limit workers' compensation
costs, and retain productive workers. In addition, many employees are
eager to accept restricted work when it is available and prefer
returning to work to recuperating at home.
The final rule's requirements in paragraph 1904.10(b)(4) of the
final rule state:
(4) How do I record a work-related injury or illness that
involves restricted work or job transfer?
When an injury or illness involves restricted work or job
transfer but does not involve death or days away from work, you must
record the injury or illness on the OSHA 300 Log by placing a check
mark in the space for job transfer or restricted work and entering
the number of restricted or transferred days in the restricted work
column.
(i) How do I decide if the injury or illness resulted in
restricted work?
Restricted work occurs when, as the result of a work-related
injury or illness:
(A) You keep the employee from performing one or more of the
routine functions of his or her job, or from working the full
workday that he or she would otherwise have been scheduled to work;
or
(B) A physician or other licensed health care professional
recommends that the employee not perform one or more of the routine
functions of his or her job, or not work the full workday that he or
she would otherwise have been scheduled to work.
(ii) What is meant by ``routine functions''?
For recordkeeping purposes, an employee's routine functions are
those work activities the employee regularly performs at least once
per week.
(iii) Do I have to record restricted work or job transfer if it
applies only to the day on which the injury occurred or the illness
began?
No. You do not have to record restricted work or job transfers
if you, or the physician or other licensed health care professional,
impose the restriction or transfer only for the day on which the
injury occurred or the illness began.
(iv) If you or a physician or other licensed health care
professional recommends a work restriction, is the injury or illness
automatically recordable as a ``restricted work'' case?
No. A recommended work restriction is recordable only if it
affects one or more of the employee's routine job functions. To
determine whether this is the case, you must evaluate the
restriction in light of the routine functions of the injured or ill
employee's job. If the restriction from you or the physician or
other licensed health care professional keeps the employee from
performing one or more of his or her routine job functions, or from
working the full workday the injured or ill employee would otherwise
have worked, the employee's work has been restricted and you must
record the case.
(v) How do I record a case where the worker works only for a
partial work shift because of a work-related injury or illness?
A partial day of work is recorded as a day of job transfer or
restriction for recordkeeping purposes, except for the day on which
the injury occurred or the illness began.
(vi) If the injured or ill worker produces fewer goods or
services than he or she would have produced prior to the injury or
illness but otherwise performs all of the activities of his or her
work, is the case considered a restricted work case?
No. The case is considered restricted work only if the worker
does not perform all of the
[[Page 5980]]
routine functions of his or her job or does not work the full shift
that he or she would otherwise have worked.
(vii) How do I handle vague restrictions from a physician or
other licensed health care professional, such as that the employee
engage only in ``light duty'' or ``take it easy for a week''?
If you are not clear about a physician or other licensed health
care professional's recommendation, you may ask that person whether
the employee can perform all of his or her routine job functions and
work all of his or her normally assigned work shift. If the answer
to both of these questions is ``Yes,'' then the case does not
involve a work restriction and does not have to be recorded as such.
If the answer to one or both of these questions is ``No,'' the case
involves restricted work and must be recorded as a restricted work
case. If you are unable to obtain this additional information from
the physician or other licensed health care professional who
recommended the restriction, record the injury or illness as a case
involving job transfer or restricted work.
(viii) What do I do if a physician or other licensed health care
professional recommends a job restriction meeting OSHA's definition
but the employee does all of his or her routine job functions
anyway?
You must record the injury or illness on the OSHA 300 Log as a
restricted work case. If a physician or other licensed health care
professional recommends a job restriction, you should ensure that
the employee complies with that restriction. If you receive
recommendations from two or more physicians or other licensed health
care providers, you may make a decision as to which recommendation
is the most authoritative, and record the case based upon that
recommendation.
The concept of restricted work activity in the final rule falls
somewhere between the commenters' broadest and narrowest definitions of
the work activities that should be considered in determining whether a
particular case involves work restriction. The final rule's concept of
restricted work is based both on the type of work activities the
injured or ill worker is able to perform and the length of time the
employee is able to perform these activities. The term ``routine
functions of the job'' in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii)
clarifies that OSHA considers an employee who is unable, because of a
work-related injury or illness, to perform the job activities he or she
usually performs to be restricted in the work he or she may perform.
Use of the term ``routine functions of the job'' should eliminate the
concern of some commenters who read the proposed definition as meaning
that an employee had to be able to perform every possible work
activity, including those that are highly unusual or performed only
very rarely, in order for the employer to avoid recording the case as a
restricted work case (see, e.g., Exs. 15: 80, 247). In other words,
OSHA agrees that it makes little sense to consider an employee who is
prevented by an injury or illness from performing a particular job
function he or she never or rarely performed to be restricted (see,
e.g., Exs. 15: 80, 247). For example, OSHA finds that, for the purposes
of recordkeeping, an activity that is performed only once per month is
not performed ``regularly.'' This approach is consistent with OSHA
interpretations under the former rule. Limiting the definition to
``essential functions,'' the ADA term recommended by several commenters
(see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431), would be
inappropriate, because OSHA needs information on all restricted work
cases, not just those that interfere with the essential functions of
the job (29 U.S.C. 657(c)(2)).
On the other hand, OSHA agrees with those commenters who argued
that the proposed definition, to limit the definition of restricted
activity to the specific functions or tasks the employee was engaged in
on the day of injury or onset of illness would be unsatisfactory,
because doing so could fail to capture activities that an employee
regularly performs (see, e.g., Exs. 20; 15: 17, 129, 380, 418). In the
final rule, OSHA has decided that defining restricted work as work that
an employee would regularly have performed at least once per week is
appropriate, i.e., OSHA believes that the range of activities captured
by this interval of time will generally reflect the range of an
employee's usual work activities. Activities performed less frequently
than once per week reflect more uncommon work activities that are not
considered routine duties for the purposes of this rule. However, the
final rule does not rely on the duties the employee actually performed
during the week when he or she was injured or became ill. Thus, even if
an employee did not perform the activity within the last week, but
usually performs the activity once a week, the activity will be
included. OSHA believes that this change in definition will foster
greater acceptance of the concept of restricted work among employers
and employees because of its common sense approach.
Use of the term ``partial work shift'' in paragraph 1904.7(b)(4)(v)
covers restrictions on the amount of time an employee is permitted to
work because of the injury or illness. This interpretation of
restricted work was not generally disputed by commenters, although some
argued that the restriction on the hours worked should last for a
specific number of days before the case becomes recordable as a
restricted work case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391).
The final rule's restricted work provisions also clarify that work
restriction must be imposed by the employer or be recommended by a
health care professional before the case is recordable. Only the
employer has the ultimate authority to restrict an employee's work, so
the definition is clear that, although a health care professional may
recommend the restriction, the employer makes the final determination
of whether or not the health care professional's recommended
restriction involves the employee's routine functions. Restricted work
assignments may involve several steps: an HCP's recommendation, or
employer's determination to restrict the employee's work, the employers
analysis of jobs to determine whether a suitable job is available, and
assignment of the employee to that job. All such restricted work cases
are recordable, even if the health care professional allows some
discretion in defining the type or duration of the restriction, an
occurrence noted by one commenter (Ex. 15:442). However, the final
rule's provisions make it clear that the employee is not the person
making the determination about being placed on restricted work, as one
commenter (Ex. 15: 97) feared.
A number of commenters suggested that OSHA cease to require the
recording of restricted work cases entirely (see, e.g., Exs. 15: 119,
427). However, the Congress has directed that the recordkeeping system
capture data on non-minor work-related injuries and illnesses and
specifically on restricted work cases, both so that the national
statistics on such injuries and illnesses will be complete and so that
links between the causes and contributing factors to such injuries and
illnesses will be identified (29 U.S.C. 651(b)). Days away and
restricted work/job transfer cases together constitute two of the most
important kinds of job-related injuries and illnesses, and it would be
inappropriate not to record these serious cases. OSHA also cannot
narrow the definition of restricted work to those cases where the
employee is at work but cannot do productive work, as several
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because
the Congress clearly intended that workers whose work-related injuries
and illnesses were so severe as to prevent them from doing their former
work or from working for a full shift had experienced an injury or
illness that was non-minor and thus worthy of being recorded. OSHA does
not believe that requiring employers to record such injuries and
illnesses as
[[Page 5981]]
restricted work cases will in any way discourage the use of restricted
work or return-to-work programs, and the marked shift in the number of
restricted work cases reported to the BLS in the last few years bears
this out. It would also not be appropriate for OSHA to require that
employers only record as restricted work cases those cases in which the
injured or ill worker requires medical treatment and is placed on
restricted work, as some commenters suggested (see, e.g., Exs. 15: 9,
348). The OSH Act clearly requires the recording of all work-related
cases that require either medical treatment or restricted work.
Under the final rule, employers are not required to record a case
as a restricted work case if the restriction is imposed on the employee
only for the day of the injury or onset of illness. OSHA thus agrees
with a number of commenters (see, e.g., Exs. 15: 19, 44, 146, 154, 156,
198, 364, 374, 391) that restricted activity only on the day the injury
occurred or the illness began does not justify recording. This
represents a change in the treatment of restricted work cases from
OSHA's practice under the former rule. OSHA has made this change to
bring the recording of restricted work cases into line with that for
days away cases: under the final rule, employers are not required to
record as days away or restricted work cases those injuries and
illnesses that result in time away or time on restriction or job
transfer lasting only for the day of injury of illness onset.
Several commenters recommended that cases involving medical removal
under the lead or cadmium standards or cases involving ``voluntary''
preventive actions, such as cases involving job transfer or restricted
work activity, not be considered recordable under the final rule; these
participants argued that requiring employers to record voluntary
transfers or removals would create a disincentive for employers to take
these protective actions (see, e.g., Exs. 25, 15: 69, 156, 358, 406).
Under the final rule (see section 1904.9), mandated removals made in
accordance with an OSHA health standard must be recorded either as days
away from work or as days of restricted work activity, depending on the
specific action an employer takes. Since these actions are mandated, no
disincentive to record is created by this recordkeeping rule.
Some commenters, however, urged OSHA to make an exception from the
recording requirements for cases where the employer voluntarily, or for
preventive purposes, temporarily transfers an employee to another job
or restricts an employee's work activities. OSHA does not believe that
this concept is relevant to the recordkeeping rule, for the following
reasons. Transfers or restrictions taken before the employee has
experienced an injury or illness do not meet the first recording
requirement of the recordkeeping rule, i.e., that a work-related injury
or illness must have occurred for recording to be considered at all. A
truly preventive medical treatment, for example, would be a tetanus
vaccination administered routinely to an outdoor worker. However,
transfers or restrictions whose purpose is to allow an employee to
recover from an injury or illness as well as to keep the injury or
illness from becoming worse are recordable because they involve
restriction or work transfer caused by the injury or illness. All
restricted work cases and job transfer cases that result from an injury
or illness that is work-related are recordable on the employer's Log.
As the regulatory text for paragraph (b)(4) makes clear, the final
rule's requirements for the recording of restricted work cases are
similar in many ways to those pertaining to restricted work under the
former rule. First, like the former rule, the final rule only requires
employers to record as restricted work cases those cases in which
restrictions are imposed or recommended as a result of a work-related
injury or illness. A work restriction that is made for another reason,
such as to meet reduced production demands, is not a recordable
restricted work case. For example, an employer might ``restrict''
employees from entering the area in which a toxic chemical spill has
occurred or make an accommodation for an employee who is disabled as a
result of a non-work-related injury or illness. These cases would not
be recordable as restricted work cases because they are not associated
with a work-related injury or illness. However, if an employee has a
work-related injury or illness, and that employee's work is restricted
by the employer to prevent exacerbation of, or to allow recuperation
from, that injury or illness, the case is recordable as a restricted
work case because the restriction was necessitated by the work-related
injury or illness. In some cases, there may be more than one reason for
imposing or recommending a work restriction, e.g., to prevent an injury
or illness from becoming worse or to prevent entry into a contaminated
area. In such cases, if the employee's work-related illness or injury
played any role in the restriction, OSHA considers the case to be a
restricted work case.
Second, for the definition of restricted work to apply, the work
restriction must be decided on by the employer, based on his or her
best judgment or on the recommendation of a physician or other licensed
health care professional. If a work restriction is not followed or
implemented by the employee, the injury or illness must nevertheless be
recorded on the Log as a restricted case. This was also the case under
the former rule.
Third, like the former rule, the final rule's definition of
restricted work relies on two components: whether the employee is able
to perform the duties of his or her pre-injury job, and whether the
employee is able to perform those duties for the same period of time as
before.
The principal differences between the final and former rules'
concept of restricted work cases are these: (1) the final rule permits
employers to cap the total number of restricted work days for a
particular case at 180 days, while the former rule required all
restricted days for a given case to be recorded; (2) the final rule
does not require employers to count the restriction of an employee's
duties on the day the injury occurred or the illness began as
restricted work, providing that the day the incident occurred is the
only day on which work is restricted; and (3) the final rule defines
work as restricted if the injured or ill employee is restricted from
performing any job activity the employee would have regularly performed
at least once per week before the injury or illness, while the former
rule counted work as restricted if the employee was restricted in
performing any activity he or she would have performed at least once
per year.
In all other respects, the final rule continues to treat restricted
work and job transfer cases in the same manner as they were treated
under the former rule, including the counting of restricted days.
Paragraph 1904.7(b)(4)(xi) requires the employer to count restricted
days using the same rules as those for counting days away from work,
using Sec. 1904.7(b)(3)(i) to (viii), with one exception. Like the
former rule, the final rule allows the employer to stop counting
restricted days if the employee's job has been permanently modified in
a manner that eliminates the routine functions the employee has been
restricted from performing. Examples of permanent modifications would
include reassigning an employee with a respiratory allergy to a job
where such allergens are not present, or adding a mechanical assist to
a job that formerly required manual lifting. To make it clear that
employers may stop
[[Page 5982]]
counting restricted days when a job has been permanently changed, but
not to eliminate the count of restricted work altogether, the rule
makes it clear that at least one restricted workday must be counted,
even if the restriction is imposed immediately. A discussion of the
desirability of counting days of restricted work and job transfer at
all is included in the explanation for the OSHA 300 form and the
Sec. 1904.29 requirements. The revisions to this category of cases that
have been made in the final rule reflect the views of commenters,
suggestions made by the Keystone report (Ex. 5), and OSHA's experience
in enforcing the former recordkeeping rule.
Paragraph 1904.7(b)(5) Medical Treatment Beyond First Aid
The definitions of first aid and medical treatment have been
central to the OSHA recordkeeping scheme since 1971, when the Agency's
first recordkeeping rule was issued. Sections 8(c)(2) and 24(a) of the
OSH Act specifically require employers to record all injuries and
illnesses other than those ``requiring only first aid treatment and
which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job.'' Many
injuries and illnesses sustained at work do not result in death, loss
of consciousness, days away from work or restricted work or job
transfer. Accordingly, the first aid and medical treatment criteria may
be the criteria most frequently evaluated by employers when deciding
whether a given work-related injury must be recorded.
In the past, OSHA has not interpreted the distinction made by the
Act between minor (i.e., first aid only) injuries and non-minor
injuries as applying to occupational illnesses, and employers have
therefore been required to record all occupational illnesses,
regardless of severity. As a result of this final rule, OSHA will now
apply the same recordability criteria to both injuries and illnesses
(see the discussion of this issue in the Legal Authority section of
this preamble). The Agency believes that doing so will simplify the
decision-making process that employers carry out when determining which
work-related injuries and illnesses to record and will also result in
more complete data on occupational illness, because employers will know
that they must record these cases when they result in medical treatment
beyond first aid, regardless of whether or not a physician or other
licensed health care professional has made a diagnosis.
The former recordkeeping rule defined first aid as ``any one-time
treatment and any follow-up visit for the purpose of observation, of
minor scratches, cuts, burns, splinters, and so forth, which do not
ordinarily require medical care.'' Medical treatment was formerly
defined as ``treatment administered by a physician or by registered
professional personnel under the standing orders of a physician.''
To help employers determine the recordability of a given injury,
the Recordkeeping Guidelines, issued by the Bureau of Labor Statistics
(BLS) in 1986, provided numerous examples of medical treatments and of
first aid treatments (Ex. 2). These examples were published as mutually
exclusive lists, i.e., a treatment listed as a medical treatment did
not also appear on the first-aid list. Thus, for example, a positive x-
ray diagnosis (fractures, broken bones, etc.) was included among the
treatments generally considered medical treatment, while a negative x-
ray diagnosis (showing no fractures) was generally considered first
aid. Despite the guidance provided by the Guidelines, OSHA continued to
receive requests from employers for interpretations of the
recordability of specific cases, and a large number of letters of
interpretation addressing the distinction between first aid and medical
treatment have been issued. The following sections discuss the
definitions of medical treatment and first aid proposed by OSHA, the
comments received in response to the proposal, and the definition of
medical treatment that OSHA has decided to include in the final rule.
In the proposed rule, OSHA presented a simplified approach: to
define as first aid anything on a list of first aid treatments, and to
define as medical treatment any treatment not on that list.
Specifically, medical treatment was defined as ``any medical cure or
treatment beyond first aid'' (61 FR 4059).
The proposal contained a comprehensive list of all treatments that
would be considered ``first aid'' regardless of the provider:
(1) Visit(s) to a health care provider limited to observation
(2) Diagnostic procedures, including the use of prescription
medications solely for diagnostic purposes (e.g. eye drops to dilate
pupils)
(3) Use of nonprescription medications, including antiseptics
(4) Simple administration of oxygen
(5) Administration of tetanus or diphtheria shot(s) or booster(s)
(6) Cleaning, flushing or soaking wounds on skin surface
(7) Use of wound coverings such as bandages, gauze pads, etc.
(8) Use of any hot/cold therapy (e.g. compresses, soaking,
whirlpools, non-prescription skin creams/lotions for local relief,
etc.) except for musculoskeletal disorders (see Mandatory Appendix B to
Part 1904)
(9) Use of any totally non-rigid, non-immobilizing means of support
(e.g. elastic bandages)
(10) Drilling of a nail to relieve pressure for subungual hematoma
(11) Use of eye patches
(12) Removal of foreign bodies not embedded in the eye if only
irrigation or removal with a cotton swab is required
(13) Removal of splinters or foreign material from areas other than
the eyes by irrigation, tweezers, cotton swabs or other simple means
(61 FR 4059)
OSHA also solicited comment on three specific definitional
questions:
(A) Should any treatments on the proposed first aid list be
excluded and should any treatments be added?
(B) Should a list of medical treatments also be provided? Which
treatments?
(C) Should simple administration of oxygen be defined to exclude
more severe procedures such as Intermittent Positive Pressure Breathing
(IPPB)? If so, how?
OSHA received many comments on the general approach taken in the
proposal, i.e., that employers rely on a comprehensive list of first
aid treatment and define any treatment not on that list as medical
treatment. The Agency also received many comments on the individual
items on the proposed first aid list. The following discussion
addresses comments on the general approach adopted in the final rule
and then deals with comments on specific items and OSHA's responses to
each issue.
A large number of commenters agreed with OSHA's proposal to rely on
a finite list of treatments considered first aid and to consider all
other treatments medical treatment (see, e.g., Exs. 15: 9, 13, 26, 27,
74, 76, 87, 95, 122, 127, 156, 163, 185, 188, 199, 204, 218, 242, 263,
269, 270, 283, 297, 324, 332, 338, 347, 357, 359, 377, 378, 385, 386,
387, 395, 397, 405, 407, 414, 434). Several commenters wanted no change
to the proposal (see, e.g., Exs. 15: 26, 76, 204, 385, 378), while
others agreed with the general approach but stated that the first aid
list should be more comprehensive (see, e.g., Exs. 15: 199, 332, 338,
357, 386, 387).
Commenters supported the proposed approach for a variety of
reasons. For example, some stated that a finite list
[[Page 5983]]
would improve the clarity of the definition, reduce confusion for
employers, and reduce inaccuracy in the data (see, e.g., Exs. 15: 87,
95, 122, 127, 163, 185, 188, 395, 338, 242, 270, 269, 263, 347, 377,
386). The statement of the American Iron and Steel Institute
exemplified these comments:
Consistent with its statutory mandate, OSHA's proposal would
also require the recording of all work-related injuries and
illnesses that result in medical treatment beyond first aid. The
expanded and finite list of treatments that constitute first aid
would clarify the task of deciding what to record, because any
treatment that does not appear on this list will be considered a
medical treatment. (Ex. 15: 395)
The Ford Motor Company agreed, stating:
Ford supports that the definition of first aid be modified to
consist of a comprehensive list of treatments. Treatments not found
on the first aid list would be considered medical treatment for
recordkeeping purposes. Assuming that the list will be
comprehensive, it will reduce confusion, lead to consistent
recordkeeping, and greatly simplify the decision making process (Ex.
15: 347).
Some commenters stated that the proposed approach would be simpler
for employers, generate more consistent records, and facilitate better
comparisons of injury and illness data over time (see, e.g., Exs. 15:
13, 122, 127, 242, 270, 269, 263, 283, 297, 347, 359, 377, 405, 407).
According to the Southern Nuclear Operating Company: ``Providing a
comprehensive list of all first-aid treatments will remove the current
ambiguity in deciding if a case involves first aid only or if it is
medical treatment. This should provide more consistent recordkeeping
and allow for more meaningful comparisons of accident histories'' (Ex.
15: 242, p. 2).
A number of commenters, however, disagreed that defining first aid
by listing first aid treatments was appropriate (see, e.g., Exs. 15:
18, 63, 83, 87, 96, 119, 123, 129, 145, 159, 171, 173, 176, 182, 201,
225, 229, 247, 260, 262, 265, 272, 281, 303, 307, 308, 335, 337, 338,
341, 348, 349, 357, 364, 375, 380, 382, 389, 396, 401, 413, 418, 430,
434). Several of these commenters argued that it would not be possible
to list every first aid treatment (see, e.g., Exs. 15: 225, 335, 337,
396, 430). Some commenters stated that the proposed approach would not
provide sufficient clarity, would involve a definition of medical
treatment that was overly vague, and would not be helpful to employers
without additional definitions (see, e.g., Exs. 15: 159, 171, 176, 229,
281, 348, 357, 396). Another group of commenters stated that the
approach did not provide flexibility to adapt to changing medical
practice, and would not be capable of responding to changes in
technology (see, e.g., Exs. 15: 18, 63, 96, 335, 348). The comments of
the Dow Chemical Corporation are representative of these views:
Dow believes that OSHA should provide non-exhaustive lists for
both first aid and medical treatment, rather than defining one
solely by the exclusion of the other. Dow believes this suggested
approach is necessary to take into account that these lists cannot
be comprehensive or all-inclusive as it is impossible to list every
possible contingency. Moreover, technology is constantly changing
and cannot be accounted for in a static list. For example, one can
now obtain Steri-Strips over the counter where previously it would
have been considered ``medical treatment.'' Since exhaustive lists
do not allow the flexibility to take these technologies into account
nor capture every possible situation, much would still be left to
supposition. By providing an illustrative list for both first aid
and medical treatment, OSHA would be giving adequate guidance for
the regulated community. Dow recommends OSHA make this modification
in the final rule. (Ex. 15: 335)
A number of commenters urged OSHA to use the definition of medical
treatment as a way to focus primarily on the seriousness of the injury
or illness (see, e.g., Exs. 15: 147, 201, 308, 341, 375, 395, 418). For
example, the American Petroleum Institute remarked ``* * * the
fundamental issue is the seriousness of the injury or illness, not the
treatment'' (Ex. 375-A, p. 7). The Caterpillar Corporation provided
lengthy comments on the definition of medical treatment, including the
following criticism of the proposed approach:
Insignificant injuries for which medical treatment is provided
do not provide valuable information for safety and health analysis.
This proposal attempts to oversimplify the recordkeeping process
which will result in many insignificant injuries and illnesses being
recorded because of the unnecessarily restrictive definitions for
first aid and medical treatment. The definition and listing of first
aid cannot be a comprehensive or exclusive listing and definition.
Medical treatment may be provided for insignificant injuries and
significant injuries may receive little or no medical treatment. The
medical treatment process and options are too complicated to be
adequately described by one list which makes the treatments mutually
exclusive. OSHA should continue the current practice with lists for
both first aid and medical treatment. Further, the treatments cannot
be mutually exclusive since treatment does not necessarily recognize
the severity of the injury or illness (Ex. 15: 201, p. 4).
Some commenters who disagreed with the proposed approach provided
suggestions and alternative definitions. A number of commenters
suggested that OSHA keep its former definitions of first aid and
medical treatment (see, e.g., Exs. 15: 83, 119, 123, 129, 145, 225,
337, 380, 389, 418, 430). Several commenters urged OSHA to update the
former rule's definitions using the proposed rule's listing of first
aid treatments (see, e.g., Exs. 15: 83, 380, 418). Other commenters
urged OSHA not to change the definition in any way because it would
produce a break in the historical series of occupational injury and
illness data (see, e.g., Exs. 15: 123, 145, 389).
Several commenters made suggestions that they believed would
introduce flexibility into the proposed rule's first aid definition.
The National Restaurant Association suggested that OSHA add a
``catchall'' category to the list to include ``any similar type of
treatment'' (Ex. 15: 96, p. 5). The General Electric Company urged that
the following language be added: ``Other treatments may be considered
first aid so long as they are recognized as first aid actions and [are]
not listed in the definition of medical treatment'' (Ex. 15: 349, p.
8). Some commenters suggested allowing the health care professional to
determine whether the activity was properly classified as first aid or
medical treatment (see, e.g., Exs. 27; 15: 131, 173, 176, 201, 334,
382, 392, 434). A typical comment along these lines was one from the
American Forest and Paper Association, which stated that ``* * * we
believe a qualified health care professional should have the authority
to determine what is properly characterized as first aid and what
should be properly characterized as medical treatment'' (Ex. 15:334, p.
7). Two commenters suggested that the health care professional be
allowed to decide whether an action constituted first aid or medical
treatment only if the treatment was not on either the first aid or
medical treatment lists (see, e.g., Exs. 27; 15: 382, 392, 434).
One commenter, the American Network of Community Options and
Resources, supported the development of a finite first aid list, but
suggested that OSHA define medical treatment as ``any treatment that
requires professional medical intervention'' (Ex. 15: 393, p. 8).
A number of commenters agreed with OSHA that the first aid
definition should focus on the type of treatment given, and not on the
provider (see, e.g., Exs. 15: 185, 308, 338, 349, 364, 443). Other
comments argued that a distinction between first aid and medical
treatment could be made on the basis of the number of times a
particular treatment had been given. The AFL-CIO expressed a concern
that, absent some
[[Page 5984]]
consideration of the number of times a treatment was administered, many
serious injuries and illnesses would no longer be recordable and
valuable data would be lost. The AFL-CIO stated that longer term
treatments are more likely than shorter ones to be indicative of
medical treatment:
The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. Those conditions
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of
wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the current
practice, so that serious conditions which require multiple
treatments are recorded on the log. We strongly urge OSHA to
maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first
aid. (Ex. 15: 418).
Similarly, the TIMEC group of companies believed that any one-time
treatment should be considered first aid, saying:
It is also TIMEC's perspective that the exclusion of a ``one
time medical treatment'' provision from the list of first aids is
unduly restrictive. Any condition that can be resolved or treated in
one visit to the doctor should be considered minimal or negligible
in the context of record keeping for industrial injuries. Under the
proposed regulation, a condition that results in a one time medical
treatment theoretically could be given the same weight, in terms of
OSHA recordability, as a broken or severed limb. This seems unduly
restrictive. Further, it may inhibit some employers from taking
injured employees to the doctor in the first instance, in order to
avoid a ``OSHA recordable injury.'' An employer may otherwise hope
that the matter will heal itself without infection. This seems
contrary to the goal of the Occupational Safety and Health Act, to
ensure appropriate and prompt medical treatment and safety services
to employees (Ex. 15: 18, p. 2).
In response to these comments and the evidence in the record of
this rulemaking, the final rule essentially continues the proposed
approach, i.e., it includes a list of first-aid treatments that is
inclusive, and defines as medical treatment any treatment not on that
list. OSHA recognizes, as several commenters pointed out, that no one
can predict how medical care will change in the future. However, using
a finite list of first aid treatments--knowing that it may have to be
amended later based on new information--helps to limit the need for
individual judgment about what constitutes first aid treatment. If OSHA
adopted a more open-ended definition or one that relied on the judgment
of a health care professional, employers and health care professionals
would inevitably interpret different cases differently, which would
compromise the consistency of the data. Under the system adopted in the
final rule, once the employer has decided that a particular response to
a work-related illness or injury is in fact treatment, he or she can
simply turn to the first aid list to determine, without elaborate
analysis, whether the treatment is first aid and thus not recordable.
OSHA finds that this simple approach, by providing clear, unambiguous
guidance, will reduce confusion for employers and improve the accuracy
and consistency of the data.
The need for clear and unambiguous guidance is also OSHA's reason
for not considering treatments from the first aid list to be medical
treatment if carried out for a lengthier time, as suggested by the AFL-
CIO. If an injured or ill employee is given first-aid treatment, such
as non-prescription medications (at non-prescription strength), hot or
cold therapy, massage therapy, or some other treatment on the first aid
list, the treatment should not be considered medical treatment for OSHA
recordkeeping purposes, regardless of the length of time or number of
applications used. This approach will ensure that the recordkeeping
system excludes truly minor injuries and illnesses, and capture the
more serious cases that require treatment beyond first aid.
In the final rule, OSHA has adopted the approach taken in the
proposal, in a slightly modified form. Under the final rule, employers
will be able to rely on a single list of 14 first aid treatments. These
treatments will be considered first aid whether they are provided by a
lay person or a licensed health care professional. However, the final
rule includes the following definition of medical treatment;
``management and care of a patient for the purpose of combating disease
or disorder;'' this definition excludes observation and counseling,
diagnostic procedures, and the listed first aid items. OSHA believes
that providing a definition of medical treatment for recordkeeping
purposes will help employers who are uncertain about what constitutes
medical treatment. OSHA will also provide examples of medical
treatments covered by this definition in compliance assistance
documents designed to help smaller businesses comply with the rule. The
following discussion describes the definitions of first aid and medical
treatment in the final rule and explains the Agency's reasons for
including each item on the first aid list.
Final Rule
The final rule, at Sec. 1904.7(b)(5)(i), defines medical treatment
as the management and care of a patient for the purpose of combating
disease or disorder. For the purposes of Part 1904, medical treatment
does not include:
(A) Visits to a physician or other licensed health care
professional solely for observation or counseling;
(B) The conduct of diagnostic procedures, such as x-rays and
blood tests, including the administration of prescription
medications used solely for diagnostic purposes (e.g., eye drops to
dilate pupils); or
(C) ``first aid'' as defined in paragraph (b)(5)(ii) of this
section.
The final rule, at paragraph (b)(5)(ii), defines first aid as
follows:
(A) Using a nonprescription medication at nonprescription
strength (for medications available in both prescription and non-
prescription form, a recommendation by a physician or other licensed
health care professional to use a non-prescription medication at
prescription strength is considered medical treatment for
recordkeeping purposes).
(B) administering tetanus immunizations (other immunizations,
such as hepatitis B vaccine or rabies vaccine, are considered
medical treatment).
(C) Cleaning, flushing or soaking wounds on the surface of the
skin;
(D) Using wound coverings, such as bandages, Band-
Aids, gauze pads, etc.; or using butterfly bandages or
Steri-Strips (other wound closing devices, such as
sutures, staples, etc. are considered medical treatment);
(E) Using hot or cold therapy;
(F) Using any non-rigid means of support, such as elastic
bandages, wraps, non-rigid back belts, etc. (devices with rigid
stays or other systems designed to immobilize parts of the body are
considered medical treatment for recordkeeping purposes);
(G) Using temporary immobilization devices while transporting an
accident victim (e.g. splints, slings, neck collars, back boards,
etc.)
(H) Drilling of a fingernail or toenail to relieve pressure, or
draining fluid from a blister;
(I) Using eye patches;
(J) Removing foreign bodies from the eye using only irrigation
or a cotton swab;
(K) Removing splinters or foreign material from areas other than
the eye by irrigation, tweezers, cotton swabs, or other simple
means;
(L) Using finger guards;
(M) Using massages (physical therapy or chiropractic treatment
are considered medical treatment for recordkeeping purposes);
(N) Drinking fluids for relief of heat stress.
This list of first aid treatments is comprehensive, i.e., any
treatment not included on this list is not considered
[[Page 5985]]
first aid for OSHA recordkeeping purposes. OSHA considers the listed
treatments to be first aid regardless of the professional
qualifications of the person providing the treatment; even when these
treatments are provided by a physician, nurse, or other health care
professional, they are considered first aid for recordkeeping purposes.
The definition of medical treatment in the final rule differs both
from the definition used in the former rule (``treatment administered
by a physician or by registered professional personnel under the
standing orders of a physician'') and the proposed definition
(``medical treatment includes any medical care or treatment beyond
first aid''). The medical treatment definition in the final rule is
taken from Dorland's Illustrated Medical Dictionary, and is thus
consistent with usage in the medical community.
The three listed exclusions from the definition--visits to a health
care professional solely for observation or counseling; diagnostic
procedures, including prescribing or administering of prescription
medications used solely for diagnostic purposes; and procedures defined
in the final rule as first aid--clarify the applicability of the
definition and are designed to help employers in their determinations
of recordability.
OSHA received several comments on the proposed definition of
medical treatment. These dealt primarily with the general approach OSHA
was proposing, i.e., the use of an all-inclusive list of first aid
applications, and defining any treatment not on the list as medical
treatment. The remaining comments (see, e.g., Exs. 15: 87, 171, 173,
176, 182, 229, 247, 260, 262, 265, 272, 303, 307, 357, 338, 375, 382,
396, 401, 413) urged OSHA to develop an all-inclusive list of medical
treatments, to provide examples of some medical treatments, or to
provide a non-mandatory appendix with such examples.
OSHA has not adopted the suggestions made by these commenters
because the Agency finds that simplicity and clarity are best served by
adopting a single, all-inclusive first aid list and explicitly stating
that any treatment not on the list is considered, for recordkeeping
purposes, to be medical treatment. Employers will thus be clear that
any condition that is treated, or that should have been treated, with a
treatment not on the first aid list is a recordable injury or illness
for recordkeeping purposes.
This simplified approach addresses the concerns expressed by
several commenters, who emphasized that the distinction between first
aid and medical treatment made in the Act was meant to ensure that all
occupational injuries and illnesses that were other than minor be
captured by OSHA's recordkeeping system but that minor conditions not
be recorded (see, e.g., Exs. 15-308, 375A, p. 7). As the American
Petroleum Institute commented (Ex. 375A), ``* * * the fundamental issue
is the seriousness of the injury or illness, not the treatment.'' OSHA
concludes, based on its review of the record, that the final rule's
definitions of medical treatment and first aid will work together to
achieve Congress's intent, as specified in sections 8 and 24 of the
Act.
In making its decisions about the items to be included on the list
of first aid treatments, OSHA relied on its experience with the former
rule, the advice of the Agency's occupational medicine and occupational
nursing staff, and a thorough review of the record comments. In
general, first aid treatment can be distinguished from medical
treatment as follows:
First aid is usually administered after the injury or
illness occurs and at the location (e.g., workplace) where the injury
or illness occurred.
First aid generally consists of one-time or short-term
treatment.
First aid treatments are usually simple and require little
or no technology.
First aid can be administered by people with little
training (beyond first aid training) and even by the injured or ill
person.
First aid is usually administered to keep the condition
from worsening, while the injured or ill person is awaiting medical
treatment.
The final rule's list of treatments considered first aid is based
on the record of the rulemaking, OSHA's experience in implementing the
recordkeeping rule since 1986, a review of the BLS Recordkeeping
Guidelines, letters of interpretation, and the professional judgment of
the Agency's occupational physicians and nurses.
Specific Items on the Proposed First Aid List in the NPRM
Item 1 listed in the NPRM definition of first aid was ``Visit(s) to
a health care provider limited to observation.'' Two commenters raised
the issue of counseling with regard to the recording of mental
disorders (Exs. 15: 226, 395). The American Ambulance Association (AAA)
stated that: ``This is and should be considered preventive treatment
aimed at preventing stress-related illnesses. OSHA's adoption of such a
policy will allow and encourage employers to provide CISD (critical
incident stress debriefing) counseling'' (Ex. 15: 226, p. 3). The AAA
recommended that OSHA add preventive counseling, such as critical
incident stress debriefing, to the first aid listing.
OSHA agrees that counseling should not be considered medical
treatment and has expressly excluded it from the definition of medical
treatment. Counseling is often provided to large groups of workers who
have been exposed to potentially traumatic events. Counseling may be
provided on a short-term basis by either a licensed health care
professional or an unlicensed person with limited training. OSHA
believes that capturing cases where counseling was the only treatment
provided do not rise to the level of recording; other counseling cases,
where prescription medications, days away from work, or restricted work
activity is involved, would be captured under those criteria.
The Brookhaven National Laboratory recommended that the first aid
list include any return visit to evaluate diagnostic decisions (Ex. 15:
163). Caterpillar, Inc. suggested that visits for observation, testing
or diagnosis of injuries should also be considered first aid (Ex. 15:
201). The Chemical Manufacturers Association and Marathon Oil Company
encouraged OSHA to add visits to the hospital for observation to the
first-aid list (Exs. 15: 308, 310)
OSHA generally agrees with these commenters. OSHA believes that
visits to a health care professional for observation, testing,
diagnosis, or to evaluate diagnostic decisions should be excluded from
the definition of medical treatment in the final rule. Visits to a
hospital, clinic, emergency room, physician's office or other facility
for the purpose of seeking the advice of a health care professional do
not themselves constitute treatment. OSHA believes that visits to a
hospital for observation or counseling are not, of and by themselves,
medical treatment. Accordingly, the final rule excludes these
activities from the definition of medical treatment.
Item 2 listed in the NPRM definition of first aid was ``Diagnostic
procedures, including the use of prescription medications solely for
diagnostic purposes (e.g. eye drops to dilate pupils).'' Several
commenters believed that diagnostic procedures such as x-rays and blood
tests should not be considered medical treatment (see, e.g., Exs. 15:
176, 301, 347, 349, 375, 443). For example, General Electric (GE)
stated ``Diagnostic tests should not be considered medical treatment.
[[Page 5986]]
Considering a diagnostic test to be a recordable injury without
consideration of the test results is illogical and will establish a
disincentive to test. GE's position is that a definition of medical
treatment should also be included in the proposed regulation. Proposed
wording is as follows: ``Medical treatment'' includes any medical care
or treatment beyond ``first aid'' and does not include diagnostic
procedures.''
Two commenters opposed the exclusion of diagnostic procedures. The
National Institute for Occupational Safety and Health (NIOSH) said
``the term diagnostic procedures'' in item #2 is too broad, and the
example given is vague. These procedures should not be considered first
aid'' (Ex. 15: 407, p. 17). The United Steelworkers of America stated
`` * * * delete the use of prescription drugs for diagnostic purposes.
This will be abused by the company'' (Ex. 15: 429).
OSHA disagrees with NIOSH that the exclusion for diagnostic
procedures is overly vague. It is the experience of the Agency that
employers generally understand the difference between procedures used
to combat an injury or illness and those used to diagnose or assess an
injury or illness. In the event that the employer does not have this
knowledge, he or she may contact the health care professional to obtain
help with this decision. If the employer does not have this knowledge,
and elects not to contact the health care professional, OSHA would
expect the employer to refer to the first aid list and, if the
procedure is not on the list, to presume that the procedure is medical
treatment and record the case. OSHA also does not believe that this
provision will be subject to abuse, because the procedures used for
diagnosis are generally quite different from those involving treatment.
OSHA agrees with those commenters who recommended the exclusion of
diagnostic procedures from the definition of medical treatment.
Diagnostic procedures are used to determine whether or not an injury or
illness exists, and do not encompass therapeutic treatment of the
patient. OSHA has included such procedures on the first aid list in the
final rule with two examples of diagnostic procedures to help reduce
confusion about the types of procedures that are excluded.
Item 3 listed in the NPRM definition of first aid was ``Use of
nonprescription medications, including antiseptics.'' This issue
received a large number of comments, more than any other issue related
to the proposed definition of medical treatment and first aid. Most of
the comments requested that OSHA consider some uses of prescription
drugs to be first aid treatment (see, e.g., Exs. 15: 13, 60, 147, 159,
201, 218, 225, 246, 247, 297, 308, 332, 335, 336, 348, 349, 359, 374,
375, 386, 387, 395, 405, 414, 430, 434). The most common reason given
by commenters for treating some prescription drugs as first aid was
their use when they were given for preventive rather than therapeutic
intervention. Several commenters asked for a broad exception from
medical treatment for prescription drugs taken for preventive or
prophylactic purposes (see, e.g., Exs. 55X 15: 247, 336, 375, 395). For
example, the American Iron and Steel Institute stated ``AISI encourages
OSHA to make one change: add the use of prescription medications for
prophylactic reasons to the first aid list. In many instances, a health
care professional will prescribe antibiotics as a precaution against a
possible infection. An employer should not be required to record a
minor injury solely because a health care professional opted to respond
aggressively'' (Exs. 15: 395; 55X).
Several commenters asked for an exception from the medical
treatment for antibiotics and antiseptics (see, e.g., Exs. 15: 218,
246, 332, 349, 375, 395, 414, 430). Raytheon Constructors, Inc.
commented: ``We believe the following treatments should be added [to
the first aid list]: Application of antiseptics, as often as needed.
This is for prevention of infection after an injury. Infection is not
caused by the work environment. Treatment for an infection, such as
prescription drugs. Again, infection is not the result of the work
environment'' (Ex. 15: 414).
A number of employers asked OSHA to define the use of prescription
drugs for comfort, or to relieve pain or inflammation, as first aid
(see, e.g., Exs. 15: 60, 147, 201, 225, 247, 308, 348, 349). The
American Gas Association stated that: we propose that `prescription
medications for comfort' be added to the list. Medical practitioners
frequently ``prescribe drugs to comfort people after an injury'' (Ex.
15: 225), and the Proctor and Gamble Company stated ``[p]rescription
medication to prevent complications or reduce pain should not be a sole
basis for recording injuries and illnesses. It is our view that
preventive measures or action taken to reduce pain should not in
themselves be the basis for recording'' (Ex. 15: 147). Entergy Services
Inc. suggested that OSHA include Benadryl shots as first aid since they
are often given to prevent allergic reactions to insect bites and
poison oak/ivy/sumac (Ex. 15: 13). The Arizona Public Service Company
remarked: ``Treatment for bee stings should be addressed (perhaps
listed on the First Aid list). For instance, if a doctor administers
the same treatment that an employee could have administered themselves
it should not be considered medical treatment'' (Ex. 15: 247).
Another set of comments suggested that prescription medications
should be considered first aid if they were used only once or for a
limited period of time. A number of comments requested that OSHA
continue to treat a single dose of prescription medication as first
aid. (see, e.g., Exs. 15: 201, 332, 348, 349, 359, 374, 386, 387, 405,
430, 434). Typical of these comments was one from the National Safety
Council:
[t]hat administration of a single dose of prescription medication on
first visit for minor injury or discomfort remain first aid. For
example, minor muscle aches and pains may occasionally be eased with
a single dose of 800 mg ibuprofen. This is currently considered
first aid and should remain so. Another example would be the
treatment of first degree burns. This is currently considered first
aid treatment, even though treatment frequently involves the
application of a single dose of prescription-strength ointment.
(Ex.15: 359, p. 12)
Other commenters suggested that prescription medications used for
24 hours, 48 hours, or five days be considered first aid (see, e.g.,
Exs. 15: 159, 246, 297, 308, 335, 375).
In the final rule, OSHA has not included prescription medications,
whether given once or over a longer period of time, in the list of
first aid treatments. The Agency believes that the use of prescription
medications is not first aid because prescription medications are
powerful substances that can only be prescribed by a licensed health
care professional, and for the majority of medications in the majority
of states, by a licensed physician. The availability of these
substances is carefully controlled and limited because they must be
prescribed and administered by a highly trained and knowledgeable
professional, can have detrimental side effects, and should not be
self-administered.
Some commenters asked whether a case where a prescription was
written by a physician and given to the injured or ill employee but was
not actually filled or taken would be recordable. In some instances the
employee, for religious or other reasons, refuses to fill the
prescription and take the medicine. In other cases, the prescriptions
are issued on a ``take-as-needed'' basis. In these cases, the health
care professional gives the patient a prescription, often for pain
medication, and tells the patient to fill and take the prescription if
he or she
[[Page 5987]]
needs pain relief. OSHA's long-standing policy has been that if a
prescription of this type has been issued, medical treatment has been
provided and the case must therefore be recorded. Numerous commenters
asked OSHA to reverse or clarify its policy and consider these
prescriptions to be first aid in the final rule (see, e.g., Exs. 15:
13, 105, 247, 260, 262, 279, 281, 295, 300, 308, 359, 362, 386, 414).
For example, the National Safety Council requested that ``OSHA should
specify whether the treatment must actually be given or merely be
appropriate or normal for the injury or illness. For example, is
medical treatment given when a prescription is written or when it is
filled or when it is taken by the employee'' (Ex. 15: 359).
OSHA has decided to retain its long-standing policy of requiring
the recording of cases in which a health care professional issues a
prescription, whether that prescription is filled or taken or not. The
patient's acceptance or refusal of the treatment does not alter the
fact that, in the health care professional's judgment, the case
warrants medical treatment. In addition, a rule that relied on whether
a prescription is filled or taken, rather than on whether the medicine
was prescribed, would create administrative difficulties for employers,
because such a rule would mean that the employer would have to
investigate whether a given prescription had been filled or the
medicine had actually been taken. Finally, many employers and employees
might well consider an employer's inquiry about the filling of a
prescription an invasion of the employee's privacy. For these reasons,
the final rule continues OSHA's longstanding policy of considering the
giving of a prescription medical treatment. It departs from former
practice with regard to the administration of a single dose of a
prescription medicine, however, because there is no medical reason for
differentiating medical treatment from first aid on the basis of the
number of doses involved. This is particularly well illustrated by the
recent trend toward giving a single large dose of antibiotics instead
of the more traditional pattern involving several smaller doses given
over several days.
Yet another issue raised by commenters about medications involved
the use of non-prescription medications at prescription strength. In
recent years, many drugs have been made available both as prescription
and ``over-the-counter'' medications, depending on the strength or
dosage of the product. Some examples include various non-steroidal
anti-inflammatory drugs (NSAIDs), such as ibuprofen, and cortisone
creams. OSHA's policy has been that if these drugs are used in the
over-the-counter form they are first aid, but if they are used in
prescription form, they are medical treatment. Some commenters stated
that these drugs should always be considered first aid (see, e.g., Exs.
15: 300, 308, 414). For example, Heritage Environmental Services, Inc.
stated:
While the proposed rule includes the use of non-prescription
medications in the definition of first aid, it fails to address the
use of prescription quantities of over-the-counter medications
(i.e., Tylenol, Motrin). It has been Heritage's experience that the
requirement of the current rule to record cases where physicians
have prescribed over the counter medications has resulted in the
inclusion of a broad range of minor cases, that in all other
respects would not have been recordable. In working with
occupational health care providers for many years, Heritage has
found that frequently, physicians prescribe prescription quantities
of over the counter medications for reasons other than the severity
of the injury. Many physicians are unaware that the distribution of
OTC medications in such a manner results in an OSHA recordable
injury/illness.* * * Heritage strongly favors the inclusion of a
statement within the definition of first aid that eliminates the
need to record cases where the sole reason for the recording of the
case is the administration of prescription quantities of over-the-
counter medications. (Ex. 15: 300)
Other commenters stated that the use of nonprescription medications
should be considered medical treatment if they are used at prescription
strength (Ex. 15: 279) or that the continued use of non-prescription
drugs, especially anti-inflammatory drugs, should be considered medical
treatment (see, e.g., Exs. 15: 362, 371, 380, 418). The Union of
Needletrades, Industrial and Textile Employees (UNITE) stated that
``the self-administration of medication, when used on a recurring
basis, should trigger the recording of cases'' (Ex. 15: 380), and the
United Food and Commercial Workers Union, pointed out that ``When the
employee reports pain that has lasted for over a week, they are given
over-the-counter medication for as long as they ask. These cases, which
can go on for a month or longer, are never recorded'' (Ex. 15: 371).
One commenter suggested that health care professionals might
prescribe over-the-counter medications rather than prescription
medications for economic reasons (Ex. 15: 279).
The final rule does not consider the prescribing of non-
prescription medications, such as aspirin or over-the-counter skin
creams, as medical treatment. However, if the drug is one that is
available both in prescription and nonprescription strengths, such as
ibuprofen, and is used or recommended for use by a physician or other
licensed health care professional at prescription strength, the medical
treatment criterion is met and the case must be recorded. There is no
reason for one case to be recorded and another not to be recorded
simply because one physician issued a prescription and another told the
employee to use the same medication at prescription strength but to
obtain it over the counter. Both cases received equal treatment and
should be recorded equally. This relatively small change in the
recordkeeping rule will improve the consistency and accuracy of the
data on occupational injuries and illnesses and simplify the system as
well.
Two commenters asked OSHA to add non-prescription ointments to item
3 on the first aid list (Exs. 15: 308, 443). The final rule simply
lists non-prescription medications, and expects non-prescription
medications to be included regardless of form. Therefore, non-
prescription medicines at non-prescription strength, whether in
ointment, cream, pill, liquid, spray, or any other form are considered
first aid. OSHA has also removed antiseptics from the description of
non-prescription medications. Following the same logic used for
ointments, there is no need to list the variety of possible uses of
non-prescription medications. Non-prescription medicines are first aid
regardless of the way in which they are used.
Item 4 listed in the NPRM definition of first aid was ``Simple
administration of oxygen.'' Some commenters agreed with OSHA's proposal
to define the giving of oxygen as first aid (see, e.g., Exs. 15: 34,
74, 78, 201, 281, 378, 414).
Several commenters, however, asked OSHA to provide more guidance as
to what qualified as the ``simple'' administration of oxygen (see,
e.g., Exs. 15: 13, 170, 188, 229, 260, 262, 265, 272, 303, 374, 401,
405), while others suggested alternatives that would make some uses of
oxygen first aid and other uses medical treatment. The American
Petroleum Institute recommended: ``Simple oxygen administration is
standard operating procedure for EMTs and should remain first aid.
Oxygen therapy, if prescribed, should be considered medical treatment''
(15: 375). A group of utilities said ``Simple administration of oxygen
should be defined to include the preventive aspects following an
injury. This would include, for example, administration at the pre-
hospital site or while in the emergency room or hospital for
observation. Identifying oxygen administration in this manner would
[[Page 5988]]
eliminate the need to identify which of the more advanced uses of
oxygen should be considered as medical treatment'' (see, e.g., Exs. 15:
260, 262, 265, 401).
A number of commenters opposed the inclusion of oxygen as a first
aid treatment (see, e.g., Exs. 15: 9, 87, 156, 290, 350, 395, 415,
429). The American Red Cross stated:
The simple administration of oxygen * * * is inappropriately
considered first aid. Simple administration of oxygen is not so
simple. If oxygen is administered to someone with chronic pulmonary
disease (a medical condition not generally recognized by untrained
individuals), the victim could die. Carbon dioxide build-up in the
blood forces an individual with this condition to breathe;
therefore, administration of oxygen would obstruct the involuntary
breathing action, resulting in pulmonary arrest. Red Cross would
argue that no administration of oxygen is ``simple'' (Ex. 15: 290).
The United Brotherhood of Carpenters Health & Safety Fund of North
America (USC H&SF) remarked, ``[w]e urge that OSHA remove the simple
administration of oxygen from first aid treatment. This procedure
requires considerable training above what is recognized as First Aid by
either the Red Cross's or National Safety Council's First Aid training
courses'' (Ex. 15: 350). The Muscatine Iowa Chamber of Commerce Safety
Committee added:
We feel that oxygen administration, as a first aid treatment
would extend beyond the intent of the standards. The training and
equipment requirements for the delivery of oxygen are extensive and
beyond the simple first aid kits. We believe that the delivery of
even the most minimal amount of oxygen constitutes an advanced level
of care to an employee. All oxygen administration should be
considered as medical treatment, no matter how delivered or how much
is used, for whatever the reason'' (Ex. 15: 87, p. 4).
OSHA is persuaded by the views of the Red Cross and others, which
point to the potential complexities and consequences of the
administration of oxygen. Accordingly, the Agency has decided to remove
the use of oxygen from the first aid list and to consider any use of
oxygen medical treatment. Oxygen administration is a treatment that can
only be provided by trained medical personnel, uses relatively complex
technology, and is used to treat serious injuries and illnesses. The
use of any artificial respiration technology, such as Intermittent
Positive Pressure Breathing (IPPB), would also clearly be considered
medical treatment under the final rule.
Item 5 listed in the NPRM definition of first aid was
``administration of tetanus or diphtheria shot(s) or booster(s).''
These treatments have been considered first aid by OSHA for some time
when they are administered routinely, i.e., in the absence of an injury
or illness (see the Recordkeeping Guidelines (Ex. 2, p. 43)). Several
commenters expressed their support for continuing to include tetanus
and diphtheria shots and boosters as first aid (see, e.g., Exs. 15:
197, 201, 218, 247, 302, 308, 348, 385, 386, 393). Bell Atlantic
commented that ``Bell Atlantic supports the proposed inclusion of
tetanus/diphtheria shots on the first aid list. Such preventative
actions should not be considered medical treatment'' (Ex. 15: 218). One
commenter, Countrymark Cooperative, Inc., agreed that tetanus shots or
boosters should be considered first aid, but did not believe diphtheria
shots or boosters should be (Ex. 15: 9).
Two commenters recommended that tetanus and diphtheria shots be
considered medical treatment, whether or not they are administered in
connection with a work-related injury or illness. The American Red
Cross stated, ``inappropriately considered * * * administration of
diphtheria and tetanus shots or boosters cannot be performed without a
prescription from a physician. The person administering the shots must
also be cognizant of potential side effects, i.e., anaphylactic shock,
which can result from such an action, and be prepared to address them''
(Ex. 15: 290). The International Brotherhood of Teamsters added
``International Brotherhood of Teamsters encourages OSHA to discontinue
tetanus and diphtheria booster shots as first aid. They should be
considered medical treatment. They are usually administered both after
exposure and before diagnosis. The International Brotherhood of
Teamsters considers it similar to the prophylaxis medical treatment
given after exposure to Hepatitis B Virus'' (Ex. 15: 369).
A number of commenters recommended the addition to the first aid
list of other immunizations, including gamma globulin; vaccines for
hepatitis B, hepatitis C, and rabies; or other prophylactic
immunizations (see, e.g., Exs. 15: 197, 201, 218, 302, 308, 347, 348,
386). Caterpillar, Inc. recommended, ``[c]learly exclude any
immunizations and inoculations which are preventative in nature.
Immunizations and inoculations are not usually provided in response to
a specific injury or illness and should be excluded from OSHA records''
(Ex. 15: 201).
In the final rule, tetanus immunizations are included as item B on
the first aid list. These immunizations are often administered to a
worker routinely to maintain the required level of immunity to the
tetanus bacillus. These immunizations are thus based not on the
severity of the injury but on the length of time since the worker has
last been immunized.
The issue of whether or not immunizations and inoculations are
first aid or medical treatment is irrelevant for recordkeeping purposes
unless a work-related injury or illness has occurred. Immunizations and
inoculations that are provided for public health or other purposes,
where there is no work-related injury or illness, are not first aid or
medical treatment, and do not in themselves make the case recordable.
However, when inoculations such as gamma globulin, rabies, etc. are
given to treat a specific injury or illness, or in response to
workplace exposure, medical treatment has been rendered and the case
must be recorded. The following example illustrates the distinction
OSHA is making about inoculations and immunizations: if a health care
worker is given a hepatitis B shot when he or she is first hired, the
action is considered first aid and the case would not be recordable; on
the other hand, if the same health care worker has been occupationally
exposed to a splash of potentially contaminated blood and a hepatitis B
shot is administered as prophylaxis, the shot constitutes medical
treatment and the case is recordable.
Item 6 listed in the NPRM definition of first aid was ``cleaning,
flushing or soaking wounds on skin surface.'' OSHA received only one
specific comment on this item. The American Federation of State,
County, and Municipal Employees (AFSCME) commented: ``Cleaning,
flushing or soaking wounds on skin surfaces. This is the initial
treatment for needle stick injuries. AFSCME requests that OSHA clarify
its position that cleaning, flushing or soaking of sharps injuries is
considered a medical treatment'' (Ex. 15: 362).
The AFL-CIO disagreed with OSHA's proposed approach to skin surface
wounds, based on the belief that valuable information about serious
work-related injuries would be lost if the approach were adopted:
The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. Those conditions
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of
wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the
[[Page 5989]]
current practice, so that serious conditions which require multiple
treatments are recorded on the log. We strongly urge OSHA to
maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first aid
(Ex. 15: 418).
OSHA believes that cleaning, flushing or soaking of wounds on the
skin surface is the initial emergency treatment for almost all surface
wounds and that these procedures do not rise to the level of medical
treatment. This relatively simple type of treatment does not require
technology, training, or even a visit to a health care professional.
More serious wounds will be captured as recordable cases because they
will meet other recording criteria, such as prescription medications,
sutures, restricted work, or days away from work. Therefore, OSHA has
included cleaning, flushing or soaking of wounds on the skin surface as
an item on the first aid list. As stated previously, OSHA does not
believe that multiple applications of first aid should constitute
medical treatment; it is the nature of the treatment, not how many
times it is applied, that determines whether it is first aid or medical
treatment.
Item 7 listed in the NPRM definition of first aid was ``Use of
wound coverings, such as bandages, gauze pads, etc.'' These treatments
were considered first aid treatments by the Recordkeeping Guidelines
(Ex. 2, p. 43). OSHA received no comments opposing the proposed
definition of wound coverings as first aid. However, the issue of
whether or not butterfly bandages and Steri-stripsTM are
first aid was raised. Steri-stripsTM are a product of the 3M
Company, which advertises them as a comfortable adhesive strip used to
secure, close and support small cuts, wounds and surgical incisions.
``Butterfly bandages'' is a generic term used for similar adhesive
strips designed for small wounds.
All of the commenters who raised the issue suggested that OSHA add
Steri-strips and butterfly bandages to this first aid item (see, e.g.,
Exs. 15: 45, 108, 163, 201, 247, 308, 332, 349, 387, 405). Some
commenters believed that the use of Steri-stripsTM and
butterfly bandages should always be considered first aid (see, e.g.,
Exs. 15: 45, 247, 332, 349, 387), while others believed they should be
considered medical treatment only when used as a replacement for, or in
lieu of, sutures (see, e.g., Exs. 15: 108, 163, 201, 308, 405). The
Westinghouse Electric Corporation stated, ``Steri-strips should be
added to the list of first-aid treatments, when determined by the
attending medical provider that the Steri-stripTM was not
applied in lieu of sutures. Often medical care providers use a Steri-
stripTM rather than a bandage, even though the injury does
not require closure of any type'' (Ex. 15: 405).
These treatments were listed in the 1986 Recordkeeping Guidelines
as medical treatment when applied ``in lieu of sutures'' (Ex. 2, p.
43). In the past, this provision in the Guidelines has been the subject
of several letters of interpretation. For example, in a 1993 letter
from Ms. Monica Verros, R.N., C.O.H.N, of the IBP company, Ms. Verros
asked, ``[a]re all applications of butterfly adhesive dressing(s) and
Steri-strip(s) considered medical treatment?'' OSHA's answer was simply
``yes'' (Ex. 70: 136).
OSHA agrees with the commenters who suggested that these devices be
considered first aid treatment. They are included in item D of the
first aid list. Steri strips and butterfly bandages are relatively
simple and require little or no training to apply, and thus are
appropriately considered first aid.
Two commenters also raised the issue of whether or not sutures or
stitches should be considered first aid (Exs. 15: 229, 348). The
National Pest Control Association (NPCA) stated:
NPCA believes cuts requiring five or less external stitches
should also be categorized as first aid as well unless the employee
has to go back to the medical provider because of the cut or there
are more than five external stitches. Some of the examples the
agency has included in its list of first aid, such as drilling of a
nail to relieve pressure for subungual hematoma and removal of
splinters or foreign material from areas other than eyes by
irrigation, tweezers, cotton, swabs or other simple means, seems to
be comparable to cuts requiring a minimal amount of stitches.
Therefore, we believe it should be added to the list (Ex. 15: 229,
p. 4).
The Dupont Company suggested: ``Expand the `suture' category to say
that any device used for closure for therapeutic reasons is an
automatic MTC (medical treatment case). Leeway should be given for when
a care provider gives `unnecessary' treatment, for example, sutures for
cosmetic reasons instead of for therapeutic closure, where the doctor
provides the documentation'' (Ex. 15: 348).
OSHA believes that including sutures or stitches in the first aid
list would not be appropriate. Performing these procedures requires
substantial medical training, and they are used only for more serious
wounds and are generally considered to go beyond first aid. OSHA has
also decided not to provide exclusions for first aid items based on
their purpose or intent. If the medical professional decides stitches
or sutures are necessary and proper for the given injury, they are
medical treatment.
Because OSHA has decided not to include a list of medical
treatments in the final rule, there is no need to articulate that the
use of other wound closing devices, such as surgical staples, tapes,
glues or other means are medical treatment. Because they are not
included on the first aid list, they are by definition medical
treatment.
Item 8 listed in the proposed definition of first aid was ``[u]se
of any hot/cold therapy (e.g. compresses, soaking, whirlpools, non
prescription skin creams/lotions for local relief, etc.) except for
musculoskeletal disorders'' (61 FR 4059). The Recordkeeping Guidelines
defined heat therapy, hot or cold therapy compresses or soaking
therapy, or whirlpool bath therapy on a second or subsequent visit to
be medical treatment (Ex. 2, p. 43). OSHA has restated this guidance in
numerous letters of interpretation, most of them related to the issue
of the recording of musculoskeletal disorders (MSDs).
A number of commenters recommended that hot or cold therapy be
defined as first aid regardless of the number of times it is
administered or the type of condition for which it is used (see, e.g.,
Exs. 15: 39, 45, 95, 109, 156, 163, 199, 201, 218, 246, 308, 347, 348,
359, 386, 414, 430, 443). Several of the comments cited consistency as
an issue (see, e.g., Exs. 15: 39, 109, 347, 348, 430). For example, the
Dupont Company stated that ``Item 8 on the `First Aid Treatment' list
considers the same treatment as either first aid or medical treatment
depending on the condition for which it is applied. The treatment is
used for reduction of swelling and discomfort. The condition for which
it is used should not matter. * * * Exclude the `except for
musculoskeletal disorders * * *' clause from item 8 (Ex. 15: 348, p.
9).
Another issue raised was that hot and cold treatments do not
require special training (Ex. 15: 414). For example, Raytheon
Constructors stated ``[w]e believe the following treatments should be
added: Soaking, whirlpool and hot/cold therapy with no limit on the
number of times. Many physicians choose this conservative treatment,
plus, any first aid trained person and/or the injured person can do
this'' (Ex. 15: 414). Other commenters stated that serious
musculoskeletal disorders would be captured more consistently by other
recording criteria (see, e.g., Exs. 15: 199, 347). The Ford Motor
Company stated:
[[Page 5990]]
We have a major disagreement with the proposed rule that the use
of any hot or cold therapy is first aid, except for musculoskeletal
disorders. The use of hot or cold therapy should always be
considered first aid. If an individual has a significant or serious
musculoskeletal disorder, it would require prescription medicine,
restriction of work or motion, transfer to another job, a day away
from work, or medical treatment. Considering hot or cold therapy to
always be first aid simplifies the system, reduces confusion, and
does not discourage practitioners from using hot or cold therapy for
minor or insignificant musculoskeletal disorders. If all
musculoskeletal disorders which include two or more applications of
hot or cold therapy as directed by a health care provider are
recordable, the data on musculoskeletal disorders will be absolutely
useless (Ex. 15: 347).
Several commenters believed that multiple hot or cold treatments
should be considered medical treatment (see, e.g., Exs. 15: 371, 418).
The AFL-CIO disagreed with OSHA's proposal; it recommended that
multiple treatments of all types be considered medical treatment, based
on the belief that valuable information about serious work-related
injuries would otherwise be lost. The AFL-CIO said:
The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. * * * The AFL-CIO
believes that first aid should be limited to one time treatments as
is the current practice, so that serious conditions which require
multiple treatments are recorded on the log. We strongly urge OSHA
to maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first aid
(15: 418).
The Tosco Corporation proposed an alternative, recommending that hot/
cold treatments for musculoskeletal disorders be considered first aid
for the first four treatments (Ex. 15: 246).
In the final rule, OSHA has included hot and cold treatment as
first aid treatment, regardless of the number of times it is applied,
where it is applied, or the injury or illness to which it is applied.
The Agency has decided that hot or cold therapy must be defined as
either first aid or medical treatment regardless of the condition being
treated, a decision that departs from the proposal. It is OSHA's
judgment that hot and cold treatment is simple to apply, does not
require special training, and is rarely used as the only treatment for
any significant injury or illness. If the worker has sustained a
significant injury or illness, the case almost always involves some
other form of medical treatment (such as prescription drugs, physical
therapy, or chiropractic treatment); restricted work; or days away from
work. Therefore, there is no need to consider hot and cold therapy to
be medical treatment, in and of itself. Considering hot and cold
therapy to be first aid also clarifies and simplifies the rule, because
it means that employers will not need to consider whether to record
when an employee uses hot or cold therapy without the direction or
guidance of a physician or other licensed health care professional.
Item 9 listed in the NPRM definition of first aid was ``[u]se of
any totally non-rigid, non-immobilizing means of support (e.g. elastic
bandages).'' The proposal reflected OSHA's guidance to employers under
past interpretations. The Recordkeeping Guidelines defined first aid
treatment as ``use of elastic bandage(s) during first visit to medical
personnel'' (Ex. 2, p. 43). The Guidelines do not provide specific
guidance on the use of other types of orthopedic devices such as
splints, casts, or braces. In response to requests from the public to
clarify the issue of which devices are medical treatment and which are
first aid treatment, OSHA issued several letters of interpretation
stating that the use of wraps or non-constraining devices such as
wristlets, tennis elbow bands or elastic bandages are first aid
treatment, regardless of how long or how often they are used. The use
of casts, splints, or orthopedic devices designed to immobilize a body
part to permit it to rest and recover is considered medical treatment.
Generally, orthopedic devices used for immobilization are made rigid,
in whole or in part, through the use of stays or non-bending supports
(see, e.g., Exs. 70: 40, 158).
OSHA received several comments recommending that it provide
additional clarification of this issue (see, e.g., Exs. 15: 176, 290).
Several commenters suggested that OSHA include wrist splints as first
aid, on the grounds that wrist splints are used as a prophylactic
treatment (see, e.g., Exs. 15: 332, 349, 386, 387). Other commenters
recommended that finger splints be considered first aid (see, e.g.,
Exs. 15: 201, 349, 386). The Caterpillar Company suggested that OSHA
``[e]xpand item 9 to include rigid finger splints, which are used only
to prevent further injury or to maintain the cleanliness of finger
lacerations and other minor wounds, rather than as part of the required
medical treatment. Only splints that are used to provide rigidity as
part of the required medical treatment should trigger recordability''
(Ex. 15: 201).
Several comments centered on the issue of immobilization for
injuries while the worker is being transported to a medical care
facility (see, e.g., Exs. 15: 290, 347, 434). The Ford Motor Company
remarked, ``[t]he first aid list should be expanded to include the use
of any partially or totally rigid immobilizing means of support when
used solely for the purpose of immobilization during initial transport
for medical evaluation. For example, the use of a back board, stiff
neck collar, or air splint'' (Ex. 15: 347). The American Red Cross
added:
While Red Cross would agree that this is ``first aid,'' it is
unclear whether OSHA intends for use of rigid support to be
considered ``medical treatment.'' In most traditional first aid
classes, including those taught by Red Cross, students are taught
that if, for example, a victim has broken a bone, any rigid means of
support that would immobilize the limb until further medical care
can be obtained should be utilized. Examples of rigid support
include newspapers, magazines, sticks, boards, splints, etc.,
anything that is available to prevent further injury. This action
may be performed by anyone who has been trained in first aid, and
Red Cross does not believe that ``rigidity'' is the appropriate
qualification to consider this action ``medical treatment'' (15:
290).
The General Electric Corporation (GE) recommended that OSHA rely,
not on the design of the device but on whether or not the device
resulted in restricted activity. GE recommended ``the following
additions to the list: Use of rigid or non-rigid immobilization
devices, if they don't result in restricted activity, e.g. wrist
braces, finger splints, immobilization for transport'' (Ex. 15: 349).
OSHA has included two items related to orthopedic devices in the
final definition of first aid. Item F includes ``[u]sing any non-rigid
means of support, such as elastic bandages, wraps, non-rigid back
belts, etc. (devices with rigid stays or other systems designed to
immobilize parts of the body are considered medical treatment for
recordkeeping purposes).'' OSHA has included more examples of the
devices (wraps and non-rigid back belts) to help make the definition
clearer. However, OSHA believes that the use of orthopedic devices such
as splints or casts should be considered medical treatment and not
first aid. They are typically prescribed by licensed health care
professionals for long term use, are typically used for serious
injuries and illnesses, and are beyond the everyday definition of first
aid. OSHA believes that it would be inappropriate to rely on
``restricted activity,'' as recommended by GE, because there may be
situations where orthopedic devices are prescribed, the worker is not
placed on
[[Page 5991]]
restrictions, but an injury or illness warranting recording has
occurred.
However, OSHA agrees with those commenters who stated that the use
of these devices during an emergency to stabilize an accident victim
during transport to a medical facility is not medical treatment. In
this specific situation, a splint or other device is used as temporary
first aid treatment, may be applied by non-licensed personnel using
common materials at hand, and often does not reflect the severity of
the injury. OSHA has included this item as G on the first aid list:
``[u]sing temporary immobilization devices while transporting an
accident victim (e.g. splints, slings, neck collars, etc.)''
Item 10 listed in the proposed definition of first aid was
``drilling of a nail to relieve pressure for subungual hematoma.'' A
subungual hematoma is an accumulation of blood underneath a finger or
toenail that is normally caused by a sharp blow to the nail. When
pressure builds beneath the nail, pain results. The normal course of
treatment for this injury is to drill a small hole through the nail to
relieve the pressure. In the past, OSHA considered such treatment to be
medical treatment and not first aid. For example, a 1993 letter from
IBP, Inc. asked whether ``[d]rilling a hole through a fingernail to
relieve pressure (subungual hematoma) is considered medical
treatment?'' OSHA's answer was ``Yes, the draining of any fluids or
blood is to be considered medical treatment'' (Ex. 70: 136).
OSHA received very few comments on this first aid item. Linda
Ballas & Associates stated ``The drilling of a nail to relieve pressure
for subungual hematoma should be included as medical treatment and not
first aid'' (Ex. 15: 31, p. 5). The American Textile Manufacturers
Institute recommended that OSHA change the item to: ``Simple relieving
of the pressure of a subungual hematoma. The use of the word drilling
is too restrictive. There are a number of simple procedures to relieve
pressure that are considered first aid'' (Ex. 15:156). OSHA also
received a similar comment from Oxychem Corporation stating that
lancing a blister should be considered first aid (Ex. 15: 386).
OSHA has decided to retain this item on the first aid list and to
add the lancing of blisters as well. These are both one time treatments
provided to relieve minor soreness caused by the pressure beneath the
nail or in the blister. These are relatively minor procedures that are
often performed by licensed personnel but may also be performed by the
injured worker. More serious injuries of this type will continue to be
captured if they meet one or more of the other recording criteria. OSHA
has specifically mentioned finger nails and toenails to provide
clarity. These treatments are now included as item H on the first aid
list.
Item 11 listed in the proposed definition of first aid was ``Use of
eye patches.'' The Recordkeeping Guidelines did not provide specific
guidance about eye patches. However, in a 1992 letter, OSHA provided an
interpretation that the use of eye patches was first aid treatment; in
that letter, ELB Inc. asked OSHA to ``[e]xplain if pressure patches on
eyes are recordable or if a patch over an eye to prevent light from
entering is recordable? Is the use of an eye patch recordable?'' OSHA
answered `` The use of a normal eye patch is considered to be first
aid. However, if the employee is unable to perform all of his/her
normal job duties because of the patch, the case should be recorded
based on restricted work activity. The use of a pressure eye patch is
medical treatment'' (Ex. 70: 161) .
OSHA received only one comment specific to this item. The National
Institute for Occupational Safety and Health (NIOSH) stated that the
initial use of an eye patch would generally require medical evaluation
and should not be considered first aid (Ex. 15: 407). In the final
rule, OSHA has included the use of eye patches as first aid in item I
of the first aid list. Eye patches can be purchased without a
prescription, and are used for both serious and non-serious injuries
and illnesses. OSHA believes that the more serious injuries to the eyes
will that NIOSH refers to require medical treatment, such as
prescription drugs or removal of foreign material by means other than
irrigation or a cotton swab, and will thus be recordable.
Item 12 listed in the proposed definition of first aid was
``removal of foreign bodies not embedded in the eye if only irrigation
or removal with a cotton swab is required.'' The effect of including
this item in the list of first aid treatments would be to make any case
involving a foreign body embedded in the eye a recordable injury.
The Recordkeeping Guidelines listed ``removal of foreign bodies
embedded in the eye'' as medical treatment and ``removal of foreign
bodies not embedded in eye if only irrigation is required'' as first
aid (Ex. 2, p. 43). In subsequent letters of interpretation, the use of
a cotton swab to remove a foreign body from the eye was interpreted to
be first aid; injuries requiring any removal method other than
irrigation or a cotton swab made the case recordable (Ex. 70: 92).
OSHA received few comments on this first aid item. NIOSH stated
that any case involving a foreign body in the eye should be recorded,
because ``even though removal of a foreign body from the eye may be a
first aid procedure, the presence of a work-related foreign body in the
eye should be recordable. These procedures should not be considered
first aid'' (Ex. 15: 407). The Ford Motor Company asked OSHA to clarify
that a foreign body ``embedded in or adhered to'' the eye and removed
by the methods proposed would be considered first aid. Ford added that
``[t]he use of a prescription medication to anesthetize the eye for a
diagnostic procedure, an assessment procedure, or flushing to remove a
loose foreign body should not be considered medical treatment'' (Ex.
15: 347). Countrymark Cooperative, Inc. asked that the definition of
this item be expanded to include other means of removal, stating: ``We
suggest wording such as * * * Removal of foreign bodies not embedded in
the eye if only irrigation or simple removal techniques are required,
or comparable'' (Ex. 15: 9).
In the final rule, OSHA has included as item J ``Removing foreign
bodies from the eye using only irrigation or a cotton swab.'' OSHA
believes that it is often difficult for the health care professional to
determine if the object is embedded or adhered to the eye, and has not
included this suggested language in the final rule. In all probability,
if the object is embedded or adhered, it will not be removed simply
with irrigation or a cotton swab, and the case will be recorded because
it will require additional treatment.
OSHA believes that it is appropriate to exclude those cases from
the Log that involve a foreign body in the eye of a worker that can be
removed from the eye merely by rinsing it with water (irrigation) or
touching it with a cotton swab. These cases represent minor injuries
that do not rise to the level requiring recording. More significant eye
injuries will be captured by the records because they involve medical
treatment, result in work restrictions, or cause days away from work.
Item 13, the last item listed in the proposed definition of first
aid, was ``Removal of splinters or foreign material from areas other
than the eyes by irrigation, tweezers, cotton swabs or other simple
means.'' The Recordkeeping Guidelines distinguished between foreign
body removal cases on the basis of the complexity of the removal
technique used. According to the Guidelines, the ``removal of foreign
bodies from a wound if the procedure is
[[Page 5992]]
complicated because of depth of embedment, size or location'' was
medical treatment, while ``removal of foreign bodies from wound, if
procedure is uncomplicated, and is, for example, by tweezers or other
simple technique'' was first aid (Ex. 2, p. 43).
OSHA received one comment specific to this proposed first aid item.
The Muscatine Iowa Chamber of Commerce Safety Committee stated ``The
list appears to be very inclusive of what items are currently
understood as first aid treatments. Our only concern is the ambiguous
ending of Number 13. ``* * * or other simple means.'' This should be
further defined. Change number 13 to read: ``Removal of splinters or
foreign material from areas other than the eyes by irrigation,
tweezers, cotton swabs or by excision not to exceed the depth of the
outer layer of skin'' (Ex. 15: 87).
In the final rule, OSHA has decided to retain item 13 essentially
as proposed, and this first aid treatment appears as item K on the
first aid list. The inclusion of the phrase ``other simple means'' will
provide some flexibility and permit simple means other than those
listed to be considered first aid. Cases involving more complicated
removal procedures will be captured on the Log because they will
require medical treatment such as prescription drugs or stitches or
will involve restricted work or days away from work. OSHA believes that
cases involving the excision of the outer layer of skin are not
appropriately considered first aid, as suggested by the Muscatine Iowa
Chamber of Commerce; excision of tissue requires training and the use
of surgical instruments.
Additions to the First Aid List Suggested by Commenters
In addition to comments about the first aid items OSHA proposed to
consider first aid, a number of commenters asked for additional
clarifications or recommended additions to the first aid list. The
items suggested included exercise, chiropractic treatment, massage,
debridement, poison ivy, bee stings, heat disorders, and burns.
Exercise: Several commenters requested adding exercise, performed
either at home or at work, to the list (see, e.g., Exs. 15: 201, 308,
349, 396). For example, Caterpillar suggested that OSHA ``[a]dd a
listing for range of motion exercises and minor physical therapy
performed at home'' (Ex. 15: 201). These comments described exercises
that amount to self-administered physical therapy, and are normally
recommended by a health care professional who trains the worker in the
proper frequency, duration and intensity of the exercise. Physical
therapy treatments are normally provided over an extended time as
therapy for a serious injury or illness, and OSHA believes that such
treatments are beyond first aid and that cases requiring them involve
medical treatment.
Chiropractic treatment: A few commenters believe that chiropractic
treatment should be treated as first aid (see, e.g., Exs. 15: 154, 299,
396). For example, the Sandoz Corporation stated ``[i]t would simplify
our record keeping if there were better definition of the use of
chiropractors. Is one visit counted or do you have to have multiple
visits'' (Ex. 15: 299). OSHA does not distinguish, for recordkeeping
purposes, between first aid and medical treatment cases on the basis of
number of treatments administered. OSHA also does not distinguish
between various kinds of health care professionals, assuming they are
operating within their scope of practice. If a chiropractor provides
observation, counseling, diagnostic procedures, or first aid procedures
for a work-related injury or illness, the case would not be recordable.
On the other hand, if a chiropractor provides medical treatment or
prescribes work restrictions, the case would be recordable.
Massage therapy: The Union Carbide company recommended the addition
of massages and prescribed physical therapy to the first aid list (Ex.
15: 396). OSHA believes that massages are appropriately considered
first aid and has included them as item M in the final rule's first aid
list. However, physical therapy or chiropractic manipulation are
treatments used for more serious injuries, and are provided by licensed
personnel with advanced training and therefore rise to the level of
medical treatment beyond first aid.
Debridement: Several commenters recommended that OSHA include
debridement as a first aid treatment (see, e.g., Exs. 15: 201, 332,
349, 387). Debridement is the surgical excision, or cutting away, of
dead or contaminated tissue from a wound. The Recordkeeping Guidelines
listed ``cutting away dead skin (surgical debridement)'' as an example
of medical treatment (Ex. 2, p. 43). The Caterpillar Company
recommended that OSHA ``[a]dd to the [first aid] listing provisions for
the minor removal of nonviable tissue as first aid treatment'' (Ex. 15:
201).
OSHA has decided not to include debridement as a first aid
treatment. This procedure must be performed by a highly trained
professional using surgical instruments. Debridement is also usually
performed in conjunction with other forms of medical treatment, such as
sutures, prescription drugs, etc.
Intravenous (IV) administration of glucose and saline: Two
commenters (Exs. 15: 154, 395) argued that the intravenous
administration of saline (salt) and glucose (sugar) should be
considered first aid. In former letters of interpretation, OSHA
considered these treatments first aid in injury cases (see, e.g., Exs.
15: 154, 395). In the final rule, however, OSHA has decided not to
include the IV administration of fluids on the first aid list because
these treatments are used for serious medical events, such as post-
shock, dehydration or heat stroke. The administration of IVs is an
advanced procedure that can only be administered by a person with
advanced medical training, and is usually performed under the
supervision of a physician.
The Union Carbide Corporation (Ex. 15: 396) also recommended three
additions to the first aid list: UV treatment of blisters, rashes and
dermatitis; acupuncture, when administered by a licensed health care
professional; and electronic stimulation. After careful consideration,
OSHA has decided not to include these treatments as first aid. Each of
these treatments must be provided by a person with specialized
training, and is usually administered only after recommendation by a
physician or other licensed health care professional.
Several commenters asked that treatments for two specific types of
disorders be added to the list: heat disorders and burns. OSHA has not
added these types of conditions to the first aid list because the list
includes treatments rather than conditions. However, OSHA has added
fluids given by mouth for the relief of heat disorders to the list, in
response to comments received.
Two commenters asked about the recording of heat disorders and how
they relate to the definition of first aid and medical treatment. Union
Carbide recommended an addition to the first aid list to state ``fluids
taken internally for heat stress'' (Ex. 15: 396). The Arizona Public
Service Company remarked: ``Recordability of heat stress and heat rash
should be addressed based on classification of treatment (first aid vs.
medical)'' (Ex. 15: 247). Under OSHA's former recordkeeping system,
heat stress was recordable as an occupational illness because it
results from non-instantaneous exposures that occur over time and all
occupational
[[Page 5993]]
illnesses, including minor ones, were considered recordable.
In the final rule, OSHA agrees with Union Carbide that drinking
fluids for the relief of heat disorders is a first aid rather than
medical treatment and item N on the final first aid list is ``drinking
fluids for relief of heat stress.'' However, as discussed above, OSHA
believes that more extensive treatment, including the administration of
fluids by intravenous injections (IV), are medical treatment, and more
serious cases of heat disorders involving them must be entered into the
records. In addition, any diagnosis by a physician or other licensed
health care professional of heat syncope (fainting due to heat) is
recordable under paragraph 1904.7(b)(6), Loss of Consciousness.
Burns: Many commenters recommended that OSHA include the treatment
of burns on the first aid list (see, e.g., Exs. 45, 170, 260, 262, 265,
288, 301, 401, 414, 443). Teepak Inc. stated ``[s]econd degree burns
treated by first aid measures only, with no infection or complication
or prescription medication, should be considered first aid'' (Ex. 15:
45). The Georgia Power Company argued that ``[t]reatment of all first
degree burns should be added to the list of first aid treatments
because they are minor injuries that are exempt from the requirements
of the Act. Omission of first degree and second degree burns receiving
only first aid treatment from this list is inconsistent with the
recording criteria listed for burns of the skin in [proposed] Appendix
B'' (Ex. 15: 260). The Chemical Manufacturers Association recommended
that OSHA add ``[b]urns that require only one-time treatment.
Subsequent observations and changing of bandages does not constitute
medical treatment'' (Ex. 15: 301).
The former Recordkeeping Guidelines listed the treatment of first
degree burns as an example of first aid treatment and did not consider
such treatment to be recordable (Ex. 2, p. 43). In the final rule, OSHA
has decided not to include burn treatments on the first aid list. If
first, second, or third degree burns result in days away from work,
restricted work activity, or medical treatment beyond first aid, such
as prescription drugs or complex removal of foreign material from the
wound, they will rise to the level that requires recording.
Taking this approach means that burns will be treated just as other
types of injury are, i.e., minor burn injuries will not be recordable,
while more serious burns will be recorded because they will involve
medical treatment. For example, a small second degree burn to the
forearm that is treated with nothing more than a bandage is not
recordable. A larger or more severe second degree burn that is treated
with prescription creams or antibiotics, or results in restricted work,
job transfer, or days away from work is recordable. The vast majority
of first degree burns and minor second degree burns will not be
recorded because they will not meet the recording criteria, including
medical treatment. However, more serious first and second degree burns
that receive medical treatment will be recorded, and third degree burns
should always be recorded because they require medical treatment.
Miscellaneous First Aid and Medical Treatment Issues
The American Association of Occupational Health Nurses (AAOHN) was
concerned that the public might interpret the fact that treatments were
listed as first aid to mean that they did not have to be administered,
in some cases, by a health care professional:
OSHA must clarify that categorizing certain actions as first aid
does not necessarily imply that these actions can be delegated to a
non-health care professional. While a list of actions considered
first aid treatment will offer guidance for employers in determining
recordability of incidents, situations exist that will require the
professional judgment of a health care professional. One example is
the administration of tetanus/diphtheria shots. While it is
appropriate to consider these treatments first aid for
recordability, injections pose issues that require the judgment and
expertise of a health care professional. One potential hazard of
this treatment is the risk of side effects. The ability to identify
the reaction and take appropriate measures should be handled by a
qualified health care professional (Ex. 15: 181).
OSHA agrees with the AAOHN that certain treatments and
interventions require the professional judgment of a health care
professional. The Agency believes that these matters are best left to
state agencies and licensing boards, and the final rule's definition of
health care professional (see Subpart G) makes this clear.
The State of New York expressed a concern about the possible
confusion some employers might experience between OSHA's requirements
and those of the state workers' compensation systems. The New York
Workers' Compensation Board stated:
The proposed rule contains a broad list of treatments which will
qualify as first aid, with less emphasis on the number of treatments
or the resulting amount of lost time from work. It is possible that
many of the items listed in the OSHA rule as first-aid treatments
which do not require reporting under the proposed OSHA standard
(i.e. use of splints, drilling a nail in a hematoma, use of
compresses and non-prescription medications), may still require
reporting under the WCL because in a particular case the treatment
qualifies as medical treatment or because it has caused lost time
from work beyond the working day. The only problem would be if
employers, in complying with proposed OSHA requirements, failed to
continue to comply with New York's recording and reporting
requirements (Ex. 15: 68).
OSHA's reporting requirements do not in any way interfere with or have
any impact on state workers compensation reporting requirements.
Employers are required to record certain injuries and illnesses under
the OSHA recordkeeping regulation and to observe certain other
requirements under workers' compensation law. The two laws have
separate functions: workers' compensation is designed to compensate
injured or ill workers, while the OSH Act is designed to prevent
injuries and illnesses and to create a body of information to improve
understanding of their causes. Thus, certain injuries and illnesses may
be reportable under state workers' compensation law but not under the
OSHA recordkeeping rule, and certain injuries and illnesses may be
reportable under the OSHA rule but not under one or more workers'
compensation statutes. OSHA notes that employers have been following
the requirements of both systems for years, and have generally not
experienced difficulty in doing so.
Several commenters remarked on the need for OSHA to update the
first aid list in the future (see, e.g., Exs. 234, 247, 384, 407). One
commenter remarked: ``The suggested first aid list adds and clarifies
some treatments as first aid. There should be a mechanism for adding or
removing treatments to first aid and medical treatment lists as new
information becomes available'' (Ex. 15: 234). The Akzo Nobel Company
suggested that ``[w]ith the assistance of occupational physicians,
updates could be made quarterly and distributed via the Internet'' (Ex.
15: 384). The National Institute for Occupational Safety and Health
(NIOSH) recommended ``[t]he first aid list, however, should be included
as an appendix, rather than in the rule itself, in order to allow
revisions to be made more easily as medical practice evolves'' (Ex. 15:
407).
In response, OSHA notes that the list is part of a definition that
sets mandatory recording and reporting requirements and is a part of
the regulation itself. Including the first aid list as a non-mandatory
appendix would
[[Page 5994]]
provide additional flexibility for future updates, but doing so would
not meet the purposes for which the list is intended. The list is
mandatory, and making it non-mandatory would only introduce additional
confusion about what is or is not to be entered into the records. As a
result, the mechanism OSHA will use to update or modify the first aid
list will be to pursue a future rulemaking, if and when such a
rulemaking is needed. OSHA will continue to issue letters of
interpretation to help employers understand the requirements as they
apply to specific situations.
Paragraph 1904.7(b)(6) Loss of Consciousness
The final rule, like the former rule, requires the employer to
record any work-related injury or illness resulting in a loss of
consciousness. The recording of occupational injuries and illnesses
resulting in loss of consciousness is clearly required by Sections 8(c)
and 24 of the OSH Act. The new rule differs from the former rule only
in clearly applying the loss of consciousness criterion to illnesses as
well as injuries. Since the former rule required the recording of all
illnesses, illnesses involving loss of consciousness were recordable,
and thus OSHA expects that this clarification will not change recording
practices. Thus, any time a worker becomes unconscious as a result of a
workplace exposure to chemicals, heat, an oxygen deficient environment,
a blow to the head, or some other workplace hazard that causes loss of
consciousness, the employer must record the case.
Very few commenters addressed the issue of loss of consciousness.
Three commenters asked OSHA to make sure that these cases are not
recordable unless they are the result of a work-related injury or
illness (see, e.g., Exs. 15: 102, 159, 176). The American Frozen Food
Institute (AFFI) stated that ``[l]oss of consciousness should not be
reported unless it is the clear result of a work related injury or
illness'' (Ex. 15: 102). The Chemical Manufacturers Association added
``OSHA must clearly indicate in the final recordkeeping rule that loss
of consciousness must be induced by an occupational exposure. For
example, if someone faints at work due to pregnancy or has an epileptic
seizure, such loss of consciousness should not be recordable'' (Ex. 15:
176).
OSHA agrees with these commenters that, in order to be a recordable
event, a loss of consciousness must be the result of a workplace event
or exposure. Loss of consciousness is no different, in this respect,
from any other injury or illness. The exceptions to the presumption of
work-relationship at Sec. 1904.5(b)(2)(ii) allow the employer to
exclude cases that ``involve signs or symptoms that surface at work but
result solely from a non-work-related event or exposure that occurs
outside the work environment.'' This exception allows the employer to
exclude cases where a loss of consciousness is due solely to a personal
health condition, such as epilepsy, diabetes, or narcolepsy.
The American Crystal Sugar Company (Ex. 15: 363) raised the issue
of phobias resulting in loss of consciousness:
I would also like to suggest exempting an employee's loss of
consciousness based on a fear-based phobia, i.e., fainting at the
sight of blood. Occasionally an OSHA regulation may require blood
tests, such as checking lead levels in blood. There are a few
employees that will lose consciousness at the sight of a needle.
These phobias are not limited to medical procedures, but may include
spiders, snakes, etc. In several of our factories, the occupational
health nurse will administer tetanus boosters as a service to our
employees. Employees that have a phobia about injections can (and
do) lose consciousness, which now makes what was intended as a
service an OSHA recordable accident.
The final rule does not contain an exception for loss of
consciousness associated with phobias or first aid treatment. OSHA
notes, however, that the exception at paragraph 1904.5(b)(2)(iii)
allows the employer to rebut the presumption of work relationship if
``the injury or illness results solely from voluntary participation in
a wellness program or in a medical, fitness, or recreational activity
such as blood donation, physical, flu shot, exercise class,
racquetball, or baseball.'' This exception would eliminate the
recording of fainting episodes involving voluntary vaccination
programs, blood donations and the like. However, episodes of fainting
from mandatory medical procedures such as blood tests mandated by OSHA
standards, mandatory physicals, and so on would be considered work-
related events, and would be recordable on the Log if they meet one or
more of the recording criteria. Similarly, a fainting episode involving
a phobia stemming from an event or exposure in the work environment
would be recordable.
The Union Carbide Corporation (Ex. 15: 396) asked OSHA to be more
precise about the definition of loss of consciousness, stating that
``[m]ost people generally understand this term without a definition,
but it can be open to interpretation. For example, is `feeling woozy'
for a few seconds considered to be a loss of consciousness? Perhaps
OSHA should define the term to avoid any confusion.'' In this final
rule, OSHA has not included a separate definition for the term ``loss
of consciousness.'' However, the language of paragraph 1904.7(b)(6) has
been carefully crafted to address two issues. First, the paragraph
refers to a worker becoming ``unconscious,'' which means a complete
loss of consciousness and not a sense of disorientation, ``feeling
woozy,'' or a other diminished level of awareness. Second, the final
rule makes it clear that loss of consciousness does not depend on the
amount of time the employee is unconscious. If the employee is rendered
unconscious for any length of time, no matter how brief, the case must
be recorded on the OSHA 300 Log.
Paragraph 1904.7(b)(7) Recording Significant Work-Related Injuries and
Illnesses Diagnosed by a Physician or Other Licensed Health Care
Professional
Paragraph 1904.7(b)(7) of this final rule requires the recording of
any significant work-related injury or illness diagnosed by a physician
or other licensed health care professional. Paragraph 1904.7(b)(7)
clarifies which significant, diagnosed work-related injuries and
illnesses OSHA requires the employer to record in those rare cases
where a significant work-related injury or illness has not triggered
recording under one or more of the general recording criteria, i.e, has
not resulted in death, loss of consciousness, medical treatment beyond
first aid, restricted work or job transfer, or days away from work.
Based on the Agency's prior recordkeeping experience, OSHA believes
that the great majority of significant occupational injuries and
illnesses will be captured by one or more of the other general
recording criteria in Section 1904.7. However, OSHA has found that
there is a limited class of significant work-related injuries and
illnesses that may not be captured under the other Sec. 1904.7
criteria. Therefore, the final rule stipulates at paragraph
1904.7(b)(7) that any significant work-related occupational injury or
illness that is not captured by any of the general recording criteria
but is diagnosed by a physician or other licensed health care
professional be recorded in the employer's records.
Under the final rule, an injury or illness case is considered
significant if it is a work-related case involving occupational cancer
(e.g., mesothelioma), chronic irreversible disease (e.g., chronic
beryllium disease), a fractured or cracked bone (e.g., broken arm,
cracked rib), or a punctured
[[Page 5995]]
eardrum. The employer must record such cases within 7 days of receiving
a diagnosis from a physician or other licensed health care professional
that an injury or illness of this kind has occurred. As explained in
the note to paragraph 1904.7(b)(7), OSHA believes that the great
majority of significant work-related injuries and illnesses will be
recorded because they meet one or more of the other recording criteria
listed in Sec. 1904.7(a): death, days away from work, restricted work
or job transfer, medical treatment beyond first aid, or loss of
consciousness. However, there are some significant injuries, such as a
punctured eardrum or a fractured toe or rib, for which neither medical
treatment nor work restrictions may be administered or recommended.
There are also a number of significant occupational diseases that
progress once the disease process begins or reaches a certain point,
such as byssinosis, silicosis, and some types of cancer, for which
medical treatment or work restrictions may not be recommended at the
time of diagnosis, although medical treatment and loss of work
certainly will occur at later stages. This provision of the final rule
is designed to capture this small group of significant work-related
cases. Although the employer is required to record these illnesses even
if they manifest themselves after the employee leaves employment
(assuming the illness meets the standards for work-relatedness that
apply to all recordable incidents), these cases are less likely to be
recorded once the employee has left employment. OSHA believes that
work-related cancer, chronic irreversible diseases, fractures of bones
or teeth and punctured eardrums are generally recognized as
constituting significant diagnoses and, if the condition is work-
related, are appropriately recorded at the time of initial diagnosis
even if, at that time, medical treatment or work restrictions are not
recommended.
As discussed in the Legal Authority section, above, OSHA has
modified the Agency's prior position so that, under the final rule,
minor occupational illnesses no longer are required to be recorded on
the Log. The requirement pertaining to the recording of all significant
diagnosed injuries and illnesses in this paragraph of the final rule,
on the other hand, will ensure that all significant (non-minor)
injuries and illnesses are in fact captured on the Log, as required by
the OSH Act. Requiring significant cases involving diagnosis to be
recorded will help to achieve several of the goals of this rulemaking.
First, adherence to this requirement will produce better data on
occupational injury and illness by providing for more complete
recording of significant occupational conditions. Second, this
requirement will produce more timely records because it provides for
the immediate recording of significant disorders on first diagnosis.
Many occupational illnesses manifest themselves through gradual onset
and worsening of the condition. In some cases, a worker could be
diagnosed with a significant illness, such as an irreversible
respiratory disorder, not be given medical treatment because no
effective treatment was available, not lose time from work because the
illness was not debilitating at the time, and not have his or her case
recorded on the Log because none of the recording criteria had been
met. If such a worker left employment or changed employers before one
of the other recording criteria had been met, this serious occupational
illness case would never be recorded. The requirements in paragraph
1904.7(b)(7) remedy this deficiency and will thus ensure the capture of
more complete and timely data on these injuries and illnesses.
The provisions of paragraph 1904.7(b)(7) are an outgrowth of
Appendix B of the proposed rule, which included provisions for the
recording of individual conditions, such as blood lead levels,
musculoskeletal disorders, and various respiratory ailments. As OSHA
explained in the preamble to the proposed rule (61 FR 4039-4042), the
proposed requirements were intended to ensure the recording of
significant non-fatal cases that did not meet the general criteria
(days away, restricted work, medical treatment, etc.).
Proposed Appendix B has not been included in the final rule, which
instead includes additional separate criteria for several of the
conditions proposed to be included in Appendix B; these criteria, which
cover tuberculosis cases, hearing loss cases, and so on, appear in the
final rule at Sec. 1904.8 through Sec. 1904.12. The requirements at
paragraph 1904.7(b)(7) of the final rule, which require the recording
of significant injuries and illnesses not meeting one or more of the
general recording criteria, will ensure the recording of the small
number of significant conditions that would have been covered by
proposed Appendix B and are not elsewhere addressed in the final rule.
Thus, OSHA believes that cases involving the conditions listed in
proposed Appendix B will be captured either by the requirements in this
significant diagnosed case section or by the other general recording
criteria.
In developing the text of paragraph 1904.7(b)(7) of the final rule,
OSHA reviewed the following questions as they related to proposed
Appendix B. Each of these questions, and the comments received, are
discussed in greater detail below: (1) Are additional recording
criteria beyond loss of consciousness, medical treatment, restricted
work, job transfer, days away, or death needed in the final rule?; (2)
if so, should these additional criteria address a finite list of
specific conditions or address a broader range of disorders?; (3) how
should the agency define ``significant'' injuries and illnesses?; and
(4) how should the final rule ensure the work-relatedness of these
cases?
Are Additional Recording Criteria Needed?
Many commenters viewed proposed Appendix B as an unnecessary
addition to the other general recording criteria and argued that OSHA
should use the general criteria listed in the OSH Act itself for most
if not all of the listed conditions (see, e.g., Exs. 15: 52, 146, 200,
203, 219, 260, 262, 265, 271, 272, 303, 313, 329, 348, 352, 353, 368,
401, 427). For example, the Atlantic Richfield Company (ARCO) stated
that:
[t]his broadening of the recordability criteria particularly as
detailed in [proposed] mandatory Appendix B dilutes the significant
data with marginal data and does not, in our view, fit with OSHA's
stated goals for improved Log accuracy and utility. ARCO believes
that for almost all of these specific exposures, the appropriate
data can be captured through the normal performance criteria of
whether the condition or exposure has caused a day away from work,
restriction on activity, or resulted in medical treatment. It is,
therefore, our opinion that Appendix B is unnecessary and
appropriate for deletion (Ex. 15: 329).
However, other commenters saw a need for and supported the
inclusion of additional recording criteria in the final rule (see,
e.g., Exs. 15: 201, 301, 304, 318). For example, the National
Federation of Independent Business (NFIB) agreed that ``[t]here are
some conditions which are serious enough to be recorded, but could
escape the proposed recordkeeping criteria of medical treatment,
restricted or loss workdays or job transfer'' (Ex. 15: 304).
Caterpillar agreed ``[w]ith the basic concept proposed in Appendix B
that additional guidelines are needed to capture some injuries and
illnesses serious enough to be recorded, which may not be captured by
the basic recordkeeping criteria'' (Ex. 15: 201).
OSHA agrees with those commenters who supported the inclusion in
the final rule of an additional mechanism to ensure the capture of
significant work-related injuries and illnesses that are diagnosed by a
physician or other licensed health care professional but do
[[Page 5996]]
not, at least at the time of diagnosis, meet the criteria of death,
days away from work, restricted work or job transfer, medical treatment
beyond first aid, or loss of consciousness. The recording of all non-
minor injuries and illnesses is consistent with the OSH Act (see the
Legal Authority section) and has been the intent of the recordkeeping
system for many years. The primary goal of the requirement at paragraph
1904.7(b)(7) is to produce more accurate and complete data on non-minor
work-related injuries and illnesses. Because the number of significant
work-related injuries and illnesses may not be captured by one or more
of the other general recording criteria, OSHA finds that this
additional criterion is needed. However, OSHA believes that most cases
will be captured by the general recording criteria.
Should Additional Criteria Address a Finite List of Specific Conditions
or Address a Broader Range of Disorders?
Proposed Appendix B was composed of a finite list of disorders and
their associated recording criteria. A number of commenters were
concerned that an inclusive list would overlook other conditions that
did not meet the general recording criteria and were not included in
proposed Appendix B. For example, OxyChem wrote:
[f]or example, aniline is a substance having specific effects
from occupational exposure, but it is not listed in Appendix B. How
will occupational illness cases related to aniline be treated? Under
OSHA's proposal, employers will apply the general recordability
criteria to make a decision, and the case will very likely not be
recorded unless it involves medical treatment, loss of
consciousness, etc. (Ex. 15: 386)
This issue was also raised by the International Chemical Workers,
who wrote that ``[a]ppendix B limits the types of illnesses which are
recordable. It needs to be textually and visually clear that this list
is not an all inclusive list of recordable illnesses `` (Ex. 15: 415).
Additionally, the American Industrial Hygiene Association had the
following thoughts on this subject:
[a]n addition should be made to the end of Appendix B to clarify
and expand on the recording of new or emerging occupational
illnesses as introduced by OSHA in Appendix B, second paragraph at
the end of page 4063: ``Conditions not included in this Appendix
that otherwise meet the criteria in the Sec. 1904.4.(c) must be
recorded.'' Medical diagnoses, including laboratory and diagnostic
tests should be the principal criteria for recording occupational
illnesses.
The above quotation ``Conditions not included in this Appendix *
* * must be recorded'' should be reworded to include the statement
``including symptomology with a clear workplace link'' (Ex. 15:
153).
OSHA generally agrees with these points. Limiting the recording of
non-minor occupational injuries and illnesses to a finite list runs
counter to the goal of this rule, which is to capture comprehensive
data on all non-minor work-related injuries and illnesses, and thus
including such a list would not meet the Agency's statutory mandate to
collect such data. OSHA believes there will be very few injuries and
illnesses that are not captured by the general recording criteria. For
example, non-minor acute illnesses, such as the skin disorders
potentially associated with aniline exposure, will be captured by the
other criteria, particularly medical treatment beyond first aid,
restricted work or job transfer, or days away from work. However, to
address the gap in case capture presented by significant injury and
illness cases that escape the general recording criteria, OSHA is
requiring employers to record cases of chronic, irreversible disease
under the Sec. 1904.7(b)(7) criterion. This means that if long-term
workplace exposure to aniline results in a chronic, irreversible liver
or kidney disease, the case would be recordable at the time of
diagnosis, even if no medical treatment is administered at that time
and no time is lost from work. The regulatory text of paragraph
1904.7(b)(7) limits the types of conditions that are recordable,
however, to significant diagnosed injury and illness cases, which are
defined as cancer, chronic irreversible diseases, fractured or cracked
bones, and punctured eardrums.
How Should the Agency Define ``Significant'' Injury or Illness?
Although there was considerable support in the record for the final
rule to include a list of conditions that might not be captured under
the general recordkeeping criteria, there was far less agreement among
commenters on the specific conditions that should be listed. Many
commenters agreed with Amoco, which testified that ``[t]he criteria
currently listed in the proposed rule would require recording of signs,
symptoms and laboratory abnormalities; situations which are not
disabling, serious, or significant'' (Ex. 22). Waste Management, Inc.,
commented that ``[t]he definition of an illness [in the proposal] or
injury refers to an adverse change in the individual. This is
interpreted to mean a change which is permanent or a change which is
clinically demonstrable to be adverse to the individual as a result of
occupational exposure in the workplace. Some of the guidance provided
in Appendix B does not meet these criteria'' (Ex. 15: 389). The
Chemical Manufacturers Association suggested that only those conditions
``[w]hose seriousness is approximately equal to that of conditions
captured by traditional criteria'' be included in Appendix B (Ex. 15:
301), and the Dupont Company proposed that the conditions listed in
Appendix B ``[i]nclude only situations that cause a permanent change to
the body structure where medical treatment may not be given'' (Ex. 15:
348). Dupont also stated that ``[O]SHA should provide scientific
evidence that a change in a lab reading [laboratory tests results were
also included in proposed Appendix B] is the equivalent of a serious or
significant change to the body structure'' (Ex. 15: 348). Other
commenters such as the Marathon Oil Company questioned whether OSHA had
the legal authority ``[t]o require employers to record these non-
serious exposures. The OSHA proposed criteria do not represent serious,
significant or disabling injuries/illnesses as required by Section
24(a) of the Act'' (Ex. 15: 308).
OSHA believes that the conditions that are required to be recorded
under Sec. 1904.7(b)(7) of the final rule represent significant
occupational injuries and illnesses as described in the OSH Act. Some
clearly significant injuries or illnesses are not amenable to medical
treatment, at least at the time of initial diagnosis. For example, a
fractured rib, a broken toe, or a punctured eardrum are often, after
being diagnosed, left to heal on their own without medical treatment
and may not result in days away from work, but they are clearly
significant injuries. Similarly, an untreatable occupational cancer is
clearly a significant injury or illness. The second set of conditions
identified in paragraph 1904.7(b)(7), chronic irreversible diseases,
are cases that would clearly become recordable at some point in the
future (unless the employee leaves employment before medical treatment
is provided), when the employee's condition worsens to a point where
medical treatment, time away from work, or restricted work are needed.
By providing for recording at the time of diagnosis, paragraph
1904.7(b)(7) of the final rule makes the significant, work-related
condition recordable on discovery, a method that ensures the collection
of timely data. This approach will result in better injury and illness
data and also is likely to be more straightforward for employers to
comply with, since there is no further need to track the case to
[[Page 5997]]
determine whether, and at what point, it becomes recordable.
The core of the recording requirement codified at Sec. 1904.7(b)(7)
is the employer's determination that a ``significant'' injury or
illness has been diagnosed. The Agency's former Recordkeeping
Guidelines addressed this issue in interpretations about ``non minor''
injuries that did not meet the general recording criteria of death,
days away, restricted work, transfer to another job, medical treatment
or loss of consciousness. The Guidelines stated (Ex. 2, p. 42) that:
The distinction between medical treatment and first aid depends
not only on the treatment provided, but also on the severity of the
injury being treated. First aid is: (1) Limited to one-time
treatment and subsequent observation; and (2) involves treatment of
only minor injuries, not emergency treatment of serious injuries.
Injuries are not minor if:
(a) They must be treated only by a physician or licensed medical
personnel;
(b) They impair bodily function (i.e., normal use of senses,
limbs, etc.);
(c) They result in damage to the physical structure of a
nonsuperficial nature (e.g., fractures); or
(d) They involve complications requiring followup medical
treatment.
Many commenters on the proposal simply stated that the system must
include all serious, significant or disabling injuries, and exclude
cases that did not rise to that level (see, e.g., Exs. 25; 15: 55, 135,
144, 154, 158, 162, 165, 193, 201, 206, 207, 211, 212, 220, 228, 238,
240, 243, 252, 253, 257, 258, 261, 264, 267, 272, 274, 276, 286, 293,
303, 305, 306, 309, 318, 320, 346, 354, 358, 365, 368, 375, 382, 383,
395, 397, 408, 412, 420, 421, 427, 434). The comments of the American
Petroleum Institute (API) reflect this view: ``[A]PI is strongly
opposed to any provision which would require a case to be recorded
which is not serious or which is not likely to become serious. API
strongly disagrees that non-serious subjective signs, symptoms,
abnormal health test results, or evidence of exposure in and of
themselves should be recorded on the OSHA log--unless the case
otherwise meets one of the traditional criteria (e.g., medical
treatment, et al.) or results in, or is expected to result in a serious
impairment'' (Ex. 15: 375).
Many comments believed that the recordability of occupational
illnesses should rely on the diagnosis of a health care professional.
For example, the U.S. Small Business Administration recommended that
``[a] recordable incident under the [proposed] `Specific Conditions'
should be subject to a health care provider's clinical diagnosis'' (Ed.
15: 67); Fort Howard recommended that ``[t]he Company disagrees with
the [proposed] Mandatory Appendix B concept particularly in light of
the statement in the Proposal that an employer can not rely solely on
the clinical diagnosis of an injury or illness by a physician. Fort
Howard recommends that an employer be allowed to specifically rely on
the conclusions of those trained in this field, namely physicians''
(Ex. 15: 194); and Country Mark Cooperative recommended that `` [i]f an
illness is diagnosed by a medical provider as linked to the cause
agent, then it would be recorded as 'otherwise recordable' until such
time as other recordable criteria are met such as days unable to work''
(Ex. 15: 9). BASF commented that ``[proposed] Appendix B should not
require the recording of merely signs, symptoms, or laboratory
abnormalities. Instead, it should also include objective findings or
observations on the part of health care providers regarding the
diagnosis of a serious illness or effect not otherwise subject to
recording requirements'' (Ex. 15: 403).
Only a few commenters suggested methods for differentiating between
serious and non-serious cases, in the context of conditions that should
be listed in the final rule (see, e.g., Exs. 15: 135, 176, 193, 199,
258, 375, 396). The API suggested that, if OSHA identifies a need to
define ``disabling, serious or significant'' explicitly, the Agency
should consider the following criteria:
[a]ny other case which results in a serious impairment or
significant injury for which no effective treatment exists, or
involves a diagnosis of a condition which in time is expected to
result in a serious impairment (or death), e.g., certain asbestos-
related diseases; or
involves evidence of a chemical exposure at biological levels
where criteria in an OSHA standard requires medical removal (Ex. 15:
375).
Elsewhere in their comments, the API recommended criteria for
selecting which conditions would be listed in proposed Appendix B as
follows:
[t]he purpose of this appendix [proposed Appendix B] is to
provide for the mandatory recording of occupational injuries and
illnesses which are also serious or significant--but which do not
immediately result in medical treatment, restricted work * * *
Such cases fall into three broad categories. They occur when the
injury or illness either
Results in a serious impairment (unable to perform any normal
life activity such as walking, eating, thinking, talking, breathing,
seeing, smelling, hearing, driving a car. Incontinence and impotence
would also be included)
Involves a diagnosis of a condition which in time is expected to
result in serious impairment (or death), e.g. certain asbestos
related diseases,
or
Involved evidence of a chemical exposure at biological levels
where criteria in an OSHA standard requires medical removal (Ex. 15:
375).
Adapto, Inc. (Ex. 15: 258) focused on the major life activity
concept, stating that:
[a]s mentioned previously, Congress intended that the
statistical data compiled under this rule be limited to cases
involving disabling, serious, or significant injuries or illness.
Adapto, Inc. believes this phrase generally refers to a work-related
condition that results in a physical or mental impairment that
substantially limits a major life activity.
Union Carbide (Ex. 15: 396) urged that the following factors be
used for determining the conditions that should be included in the
final rule:
Serious illnesses caused by exposures which are chronic and
cumulative in nature
Serious illnesses with a long latency period between exposure
and recognition of the significant illness condition
Serious illnesses which are likely to result in significant
impairment
Serious illnesses without a known or widely recognized medical
treatment until advanced stages.
The Chemical Manufacturing Association (Ex. 15: 176) restated the
same factors articulated by Union Carbide and added another factor:
``[s]erious illnesses that are not treatable.'' The NYNEX Corporation
(Ex. 15: 199), the National Broiler Council (NBC), and the National
Turkey Federation (Ex. 15: 193), in identical comments, focused on the
idea of cases with an expectation of serious impairment or death,
stating:
[w]e do recognize, however, that there are some cases that do
not meet this criteria that do have the expectation of resulting in
serious impairment or even death. We are in agreement that cases of
this potential seriousness should be recorded when they are
diagnosed by a competent physician or medical professional as work-
related.
The Macon Corporation (Ex. 15: 135) suggested using a material
impairment test, suggesting that ``[w]e need to establish an effective
system for the collection of data on serious work related injuries and
illnesses which, at the time of recording, represent a material
impairment to the health or functional capacity [of the injured or ill
worker].'' OSHA has not adopted the material impairment alternative in
the final rule because the term has specific meaning in the context of
OSHA rulemaking. Section 6(b)(5) of the Act,
[[Page 5998]]
which sets forth the criteria for promulgating standards dealing with
toxic substances or harmful physical agents, states that OSHA shall
``set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no employee
will suffer material impairment of health or functional capacity even
if such employee has regular exposure to the hazard dealt with by such
standard for the period of his working life (emphasis added).'' OSHA
believes that use of this term in the recordkeeping rule could cause
confusion among employers.
In the final rule, OSHA has adopted an approach similar to that
suggested by the American Petroleum Institute, i.e., focusing on two
types of injury and illness: those that may be essentially untreatable,
at least in the early stages and perhaps never (fractured and cracked
bones, certain types of occupational cancer, and punctured eardrums)
and those expected to progressively worsen and become serious over time
(chronic irreversible diseases). The final rule is also responsive to
the many commenters who urged OSHA to adopt a definition of severity
for this requirement that would include all serious and significant
injuries and illnesses, while excluding less serious cases. The
language of paragraph 1904.(b)(7) of the final rule also responds to
comments presented by commenters on the proposal who argued that
relying on test results or other measures as indicators of serious
occupational injury or illness was inappropriate. Instead, the final
rule relies exclusively on the diagnosis of a limited class of injuries
and illnesses by a physician or other licensed health care
professional.
Clarifying That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work
Related
A number of commenters on the proposal expressed concern that
proposed Appendix B was not clear enough about the fact that conditions
must be work-related to be recordable on the OSHA forms. For example,
several commenters asked OSHA to make sure that recordable cases of
asthma are work-related (see, e.g., Exs. 15: 38, 78, 80, 83, 89, 105,
157, 163, 188, 197, 203, 239, 279, 281, 297, 299, 302, 337, 345, 378,
395, 414). The Jewel Coal and Coke Company (Ex. 15: 281) stated that
``[asthma, in nearly all cases, is genetic and, to be recordable, we
feel must be a direct result of something in the working OSHA
environment. To require anything else would cause the unnecessary
recording of cases of genetic asthma with no relationship to the
working environment and would serve no purpose other than to balloon
the statistics.''
OSHA wishes to reiterate that any condition that is recordable on
the OSHA injury and illness recordkeeping forms must be work-related,
and Sec. 1904.7(b)(7) includes the term ``work-related'' to make this
fact clear. In addition, because the employer will be dealing with a
physician or other licensed health care professional, he or she may
also be able to consult with the health care professional about the
work-relatedness of the particular case. If the employer determines,
based either on his or her own findings or those of the professional,
that the symptoms are merely arising at work, but are caused by some
non-work illness, then the case would not be recorded, under exception
(b)(2)(ii) to the work-relatedness presumption at Sec. 1904.5(b)(2) of
the final rule. Similarly, if workplace events or exposures contributed
only insignificantly to the aggravation of a worker's preexisting
condition, the case need not be recorded under Sec. 1904.5(a) and
Sec. 1904.5(b)(3) of the final rule.
The provisions of Sec. 1904.7(b)(7) of the final rule thus meet the
objectives of (1) capturing significant injuries and illnesses that do
not meet the other general recording criteria of death, days away from
work, restricted work or job transfer, medical treatment beyond first
aid, or loss of consciousness; (2) excluding minor injuries and
illnesses; (3) addressing a limited range of disorders; and (4) making
it clear that these injuries and illnesses must be work-related before
they must be recorded.
Section 1904.8 Additional Recording Criteria for Needlestick and Sharps
Injuries
Section 1904.8 of the final rule being published today deals with
the recording of a specific class of occupational injuries involving
punctures, cuts and lacerations caused by needles or other sharp
objects contaminated or reasonably anticipated to be contaminated with
blood or other potentially infectious materials that may lead to
bloodborne diseases, such as Acquired Immunodeficiency Syndrome (AIDs),
hepatitis B or hepatitis C. The final rule uses the terms
``contaminated,'' ``other potentially infectious material,'' and
``occupational exposure'' as these terms are defined in OSHA's
Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries are of
special concern to healthcare workers because they use needles and
other sharp devices in the performance of their work duties and are
therefore at risk of bloodborne infections caused by exposures
involving contaminated needles and other sharps. Although healthcare
workers are at particular risk of bloodborne infection from these
injuries, other workers may also be at risk of contracting potentially
fatal bloodborne disease. For example, a worker in a hospital laundry
could be stuck by a contaminated needle left in a patient's bedding, or
a worker in a hazardous waste treatment facility could be
occupationally exposed to bloodborne pathogens if contaminated waste
from a medical facility was not treated before being sent to waste
treatment.
Section 1904.8(a) requires employers to record on the OSHA Log all
work-related needlestick and sharps injuries involving objects
contaminated (or reasonably anticipated to be contaminated) with
another person's blood or other potentially infectious material (OPIM).
The rule prohibits the employer from entering the name of the affected
employee on the Log to protect the individual's privacy; employees are
understandably sensitive about others knowing that they may have
contracted a bloodborne disease. For these cases, and other types of
privacy concern cases, the employer simply enters ``privacy concern
case'' in the space reserved for the employee's name. The employer then
keeps a separate, confidential list of privacy concern cases with the
case number from the Log and the employee's name; this list is used by
the employer to keep track of the injury or illness so that the Log can
later be updated, if necessary, and to ensure that the information will
be available if a government representative needs information about
injured or ill employees during a workplace inspection (see
Sec. 1904.40). The regulatory text of Sec. 1904.8 refers recordkeepers
and others to Sec. 1904.29(b)(6) through Sec. 1904.29(b)(10) of the
rule for more information about how to record privacy concern cases of
all types, including those involving needlesticks and sharps injuries.
The implementation section of Sec. 1904.8(b)(1) defines ``other
potentially infectious material'' as it is defined in OSHA's Bloodborne
Pathogens Standard (29 CFR Sec. 1910.1030, paragraph (b)). Other
potentially infectious materials include (i) human bodily fluids, human
tissues and organs, and (ii) other materials infected with the HIV or
hepatitis B (HBV) virus such as laboratory cultures or tissues from
experimental animals. (For a complete list of OPIM, see paragraph (b)
of 29 CFR 1910.1030.)
[[Page 5999]]
Although the final rule requires the recording of all workplace cut
and puncture injuries resulting from an event involving contaminated
sharps, it does not require the recording of all cuts and punctures.
For example, a cut made by a knife or other sharp instrument that was
not contaminated by blood or OPIM would not generally be recordable,
and a laceration made by a dirty tin can or greasy tool would also
generally not be recordable, providing that the injury did not result
from a contaminated sharp and did not meet one of the general recording
criteria of medical treatment, restricted work, etc. Paragraph (b)(2)
of Sec. 1904.8 contains provisions indicating which cuts and punctures
must be recorded because they involve contaminated sharps and which
must be recorded only if they meet the general recording criteria.
Paragraph (b)(3) of Sec. 1904.8 contains requirements for updating
the OSHA 300 Log when a worker experiences a wound caused by a
contaminated needle or sharp and is later diagnosed as having a
bloodborne illness, such as AIDS, hepatitis B or hepatitis C. The final
rule requires the employer to update the classification of such a
privacy concern case on the OSHA 300 Log if the outcome of the case
changes, i.e., if it subsequently results in death, days away from
work, restricted work, or job transfer. The employer must also update
the case description on the Log to indicate the name of the bloodborne
illness and to change the classification of the case from an injury
(i.e., the needlestick) to an illness (i.e., the illness that resulted
from the needlestick). In no case may the employer enter the employee's
name on the Log itself, whether when initially recording the
needlestick or sharp injury or when subsequently updating the record.
The privacy concern provisions of the final rule make it possible,
for the first time, for the identity of the bloodborne illness caused
by the needlestick or sharps injury to be included on the Log. By
excluding the name of the injured or ill employee throughout the
recordkeeping process, employee privacy is assured. This approach will
allow OSHA to gather valuable data about the kinds of bloodborne
illnesses healthcare and other workers are contracting as a result of
these occupational injuries, and will provide the most accurate and
informative data possible, including the seroconversion status of the
affected worker, the name of the illness he or she contracted, and, on
the OSHA 301 Form for the original case, more detailed information
about how the injury occurred, the equipment and materials involved,
and so forth. Use of the privacy case concept thus meets the primary
objective of this rulemaking, providing the best data possible, while
simultaneously ensuring that an important public policy goal--the
protection of privacy about medical matters--is met. OSHA recognizes
that requiring employers to treat privacy cases differently from other
cases adds some complexity to the recordkeeping system and imposes a
burden on those employers whose employees experience such injuries and
illnesses, but believes that the gain in data quality and employee
privacy outweigh these disadvantages considerably.
The last paragraph (paragraph (c)) of Sec. 1904.8 deals with the
recording of cases involving workplace contact with blood or other
potentially infectious materials that do not involve needlesticks or
sharps, such as splashes to the eye, mucous membranes, or non-intact
skin. The final recordkeeping rule does not require employers to record
these incidents unless they meet the final rule's general recording
criteria (i.e., death, medical treatment, loss of consciousness,
restricted work or motion, days away from work, diagnosis by an HCP) or
the employee subsequently develops an illness caused by bloodborne
pathogens. The final rule thus provides employers, for the first time,
with regulatory language delineating how they are to record injuries
caused by contaminated needles and other sharps, and how they are to
treat other exposure incidents (as defined in the Bloodborne Pathogens
standard) involving blood or OPIM. ``Contaminated'' is defined just as
it is in the Bloodborne Pathogens standard: ``Contaminated means the
presence or the reasonably anticipated presence of blood or other
potentially infectious materials on an item or surface.''
Before issuance of this final recordkeeping rule, the OSHA
compliance directive CPL 2-2.44C for the Bloodborne Pathogens standard,
``Enforcement Procedures for the Occupational Exposure to Bloodborne
Pathogens Standard, 29 CFR 1910.1030'' provided recording guidance to
employers of occupationally exposed employees. The CPL 2-2.44C guidance
treated cuts, lacerations and exposure incidents identically,
classifying all of the events as injuries because they usually result
from instantaneous events or exposures. The employer was required to
record an incident when it met one of the following requirements:
1. The incident is a work-related injury that involves loss of
consciousness, transfer to another job, or restriction of work or
motion.
2. The incident results in the recommendation of medical
treatment beyond first aid (e.g., gamma globulin, hepatitis B immune
globulin, hepatitis B vaccine, or zidovudine) regardless of dosage.
3. The incident results in a diagnosis of seroconversion. The
serological status of the employee shall not be recorded on the OSHA
200. If a case of seroconversion is known, it shall be recorded on
the OSHA 200 as an injury (e.g., ``needlestick'' rather than
``seroconversion'') in the following manner:
a. If the date of the event or exposure is known, the original
injury shall be recorded with the date of the event or exposure in
column B.
b. If there are multiple events or exposures, the most recent
injury shall be recorded with the date that seroconversion is
determined in column B.
In 1999, OSHA updated CPL 2-2.44 and changed this language to
simply refer to the Part 1904 regulation, in anticipation of the
publication of this final recordkeeping rule.
The proposal
In the 1996 Federal Register notice, OSHA proposed recording
criteria for needlestick and sharps injuries that were the same as the
criteria being set forth in this final rule. The requirements in the
final rule have been stated in slightly different language from those
in the proposal to be consistent with the format of the remainder of
the rule. The only substantive difference between the approach taken in
the proposal and that in the final rule is the way that cases are
handled to protect the privacy of the injured or ill worker. Appendix B
of the proposed rule (61 FR 4065) included requirements to record the
following:
``any workplace bloodborne pathogen exposure incident (as
defined in 1910.1030(b)) that results in a positive blood test or
diagnosis by a health care provider indicating AIDS, HIV
seroconversion, hepatitis B or hepatitis C.
OR
any laceration or puncture wound that involves contact with
another person's blood or other potentially infectious materials.
Note: to protect employee confidentiality, employers shall
record occupationally acquired bloodborne pathogen diseases, such as
hepatitis B, simply as the initial bloodborne exposure incident and
note the exposure type (e.g. needlestick). Seroconversion and
specific type of bloodborne disease shall not be recorded.''
OSHA explained in its proposal that recording these incidents was
appropriate because these injuries are clearly non-minor, and recording
them would be consistent with the Agency's mandate to collect
information related to the death, illness, and injury of workers (61 FR
4041). OSHA then requested comment on whether it would be appropriate
to record small puncture
[[Page 6000]]
wounds and lacerations that do not lead to disease, and whether OSHA
should require employers to record all ``exposure incidents'' involving
exposure to blood or OPIM, not just injuries involving contaminated
needles and sharps. The proposal also asked for comment about the
special privacy concerns potentially associated with bloodborne
pathogen injuries and illnesses, and asked the following questions:
``What data is useful to collect? Are there other criteria for the
recording of bloodborne infectious diseases which should be considered?
What experience do employers have in data collection systems for this
hazard?''
These proposed recording criteria for needlesticks and sharps
injury cases prompted many comments to the rulemaking record. Very few
of the comments supported OSHA's proposed position on this issue.
Commenters either recommended recording all bloodborne pathogen
exposure incidents or sharply limiting the recording of these events. A
large number of commenters either objected specifically to the
recording of all bloodborne pathogen exposure incidents or objected to
the entire contents of proposed Appendix B (see, e.g., Exs. 15: 1, 37,
38, 39, 44, 48, 52, 61, 66, 69, 74, 78, 82, 89, 100, 119, 121, 122,
126, 133, 146, 151, 152, 154, 156, 179, 193, 197, 200, 201, 203, 204,
213, 218, 219, 239, 254, 260, 262, 265, 271, 272, 277, 287, 297, 299,
301, 303, 305, 308, 310, 313, 317, 322, 329, 335, 345, 346, 347, 348,
349, 351, 352, 353, 361, 364, 373, 374, 375, 378, 392, 393, 395, 396,
398, 401, 403, 405, 407, 408, 409, 425, 434, 435). The most frequent
suggestion made by commenters was that the only criterion for recording
bloodborne pathogen diseases should be a positive blood test or
diagnosis by a health care professional (see, e.g., Exs. 15: 1, 38, 61,
65, 78, 82, 119, 122, 133, 151, 152, 179, 201, 213, 260, 262, 265, 290,
299, 301, 317, 345, 347, 373, 374, 393, 401, 407, 408, 435, 442). Many
of the commenters who objected to recording all bloodborne incidents on
the Log argued that these cases reflect exposure only and do not
usually reflect cases that rise to the level of an injury or illness
(see, e.g., Exs. 15: 44, 69, 78, 151, 152, 179, 197, 201, 239, 272,
277, 287, 303, 308, 313, 345, 347, 348, 349, 351, 352, 353, 364, 373,
374, 375, 386, 392, 395, 396, 403, 405, 423, 425, 442). Other
commenters urged OSHA to consider these cases minor injuries if they do
not result in disease (see, e.g., Exs. 15: 52, 290, 317, 403, 409,
434). Many agreed with the comments submitted by Bellin Hospital, which
stated ``[r]ecording of all Significant Exposures is unnecessary.
Seroconversions after exposure, regardless of mode of exposure is
appropriate recordkeeping only'' (Ex. 15: 38). Several commenters made
similar points. For example, Atlantic Dry Dock (Ex. 15: 179) wrote that
``[n]ot all contact [with blood or other potentially infectious
materials] will result in an infection. There is no injury/illness
unless an infection has actually resulted from the contact.''
Some commenters suggested that only those cases that resulted in
either medical treatment or seroconversion should be recorded on the
Log (see, e.g., Exs. 15: 48, 100, 213, 310, 395, 416, 423), while
others advocated recording lacerations and puncture wounds only if they
met the rule's general recording criteria (see, e.g., Exs. 15: 52, 200,
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401). As Bell
Atlantic (Ex. 15: 128) commented, ``[s]erious lacerations and puncture
wounds involving contact with bloodborne pathogens should be reported.
But the mechanism driving such reporting is the severity of the wound
and NOT the presence of bloodborne pathogens. Even with the absence of
bloodborne pathogens, such serious injuries would be recorded.''
The American Hospital Association and the Georgia Hospital
Association expressed concern that bloodborne pathogen disease criteria
require ``the recording of all instances of certain conditions that
meet specific criteria, whether or not they meet OSHA's established
criteria for recordability (work-relationship; involves medical
treatment or death, loss of consciousness, or in-patient
hospitalization, or days away from work restricted work activity, or
job transfer)'' (Exs. 15: 100, 219).
Several commenters stated that the recording of all bloodborne
pathogen incidents would be redundant and unnecessary (see, e.g., Exs.
15: 66, 121, 299, 322, 408, 435). Some commenters said that OSHA's
bloodborne pathogen standard already requires recordkeeping and
tracking of bloodborne pathogen exposure incidents (see, e.g., Exs.
15:39, 89, 121, 310, 351, 378, 393, 405, 416), and others remarked that
general medical records already contained adequate data (see, e.g.,
Exs. 15: 151, 152, 179).
A number of commenters discussed the effect on injury and illness
statistics that would be caused by recording all bloodborne pathogen
incidents (see, e.g., Exs. 15: 39, 44, 48, 61, 66, 69, 126, 146, 151,
152, 179, 201, 239, 287, 290, 308, 313, 329, 345, 352, 353, 364, 405).
The Society of the Plastics Industry, Inc. (Ex. 15: 364) said that
``Requiring recording of exposure incidents rather than actual
illnesses will improperly inflate the statistics regarding these
diseases.'' Patrick Tyson, a partner at Constangy, Brooks & Smith, LLC,
(Ex. 15: 345) stated:
In effect, the Proposed Recordkeeping Rule would include on the
Log those exposure incidents where a medical follow-up examination
actually rules out the resulting illness. I believe that the Logs
should not be used in this fashion any more than they should be used
to record incidents of high levels of workplace noise in the absence
of actual hearing loss, or incidents of employee exposure to highly
repetitive jobs in the absence of resulting musculo-skeletal
disorders. Simply stated, the OSH Act does not contemplate or intend
the recording of mere exposure incidents on the OSHA Log. To do so
would artificially overstate the relative safety and health risk in
the American workplace.
On the other hand, a number of commenters recommended that OSHA
require the recording of all bloodborne pathogen incidents as defined
in the bloodborne pathogens standard (see, e.g., Exs. 24, 15: 72, 153,
181, 196, 198, 289, 379, 380, 418). Several of these commenters urged
the recording of all exposure incidents to improve the information on
these injuries and promote better protection for workers (see, e.g.,
Exs. 24, 15: 72, 153, 181, 196, 289, 379, 380). The American
Association of Occupational Health Nurses (AAOHN) remarked ``The
benefit in keeping these detailed records of bloodborne pathogen
exposures will be the ability to track the root cause of resultant
injuries and illnesses, regardless of latency'' (Ex. 15: 181). The
National Association of Operating Room Nurses (Ex. 15: 72) added
``Reporting exposures may raise consciousness resulting in work
practice changes and decreased hazard.''
Two commenters cited the severity of these incidents as a reason
for requiring the recording of all exposure incidents (Exs. 24; 15:
379). The American Nurses Association based its arguments on the
severity of the risk, stating ``While the Center for Disease Control
and Prevention (CDC) Cooperative Needlestick Surveillance Group
reported no seroconversions to HIV positive from mucous membrane or
skin exposure, Hepatitis infections have been reported following
exposures via these routes. The nature of the risk to HIV however small
is very severe, deadly in fact; and the risk of Hepatitis is even
greater. Because of the severity of the risk, we believe that all
exposures must be recorded'' (Ex. 24). The Service Employees
International Union (SEIU) added ``The lives of thousands of health
[[Page 6001]]
care workers each year are unnecessarily devastated by occupational
exposure to hepatitis B, hepatitis C and HIV. A workplace exposure to
blood or other potentially infectious materials represents a
significant event in the life of a health care worker, regardless of
whether or not the exposure results in infection with hepatitis B,
hepatitis C or HIV'' (Ex. 15: 379).
A few commenters remarked on the need for consistency between the
bloodborne pathogens standard and the recordkeeping requirements (see,
e.g., Exs. 15: 153, 198, 379). The National Association for Home Care
(NAHC) stated ``NAHC believes that OSHA should maintain consistency
between individual OSHA bloodborne pathogen requirements and general
OSHA reporting requirements. Reporting of all exposure incidents is
consistent with OSHA's bloodborne pathogen regulations for health care
settings which require medical follow-up of employees for all exposure
incidents'' (Ex. 15: 198).
Several commenters suggested recording all incidents as a method
for masking the identity of workers who actually contract disease as a
result of their injury (see, e.g., Exs. 15: 379, 380, 418). The AFL-CIO
(Ex. 15: 418) stated:
The AFL-CIO believes that exposures to bloodborne pathogens pose
a unique case with respect to confidentiality and privacy concerns.
As the Agency has recognized in the Bloodborne Pathogen Standard, 29
CFR 1910.1030, there are real and legitimate concerns about
discrimination against individuals who have tested positive for HIV
and other bloodborne infectious diseases. To address these
legitimate confidentiality concerns, the AFL-CIO believes that a
different approach to recording cases related to bloodborne
pathogens is required. For these cases, we recommend that the Agency
require the recording of needlestick injuries and all exposures to
blood or blood contaminated body fluids on the Log 300 and on the
301. Cases involving actual seroconversions should be recorded in
the confidential medical record. This approach would be consistent
with the approach and language in the bloodborne pathogen standard.
It would permit the log to be used to track individual cases of
exposure for prevention purposes, while at the same time maintaining
the confidentiality of individuals whose health status had changed
as a result of exposure. The AFL-CIO recognizes that this approach
will require the recording of exposure incidents which do not result
in the change of health status and sets different criteria for
recording cases related to bloodborne pathogens. Given the unique
confidentiality concerns associated with this set of conditions, we
believe that this special treatment for these conditions is
warranted.
After a review of the many comments in the record on this issue,
OSHA has decided to require the recording of all workplace injuries
from needlesticks and sharp objects that are contaminated with another
person's blood or other potentially infectious material (OPIM) on the
OSHA Log. These cases must be recorded, as described above, as privacy
concern cases, and the employer must keep a separate list of the
injured employees' names to enable government personnel to track these
cases. OSHA does not agree with those commenters who were of the
opinion that contaminated needlestick and sharps injuries are minor
injuries comparable in importance to a puncture by a sewing needle or
leather punch. OSHA also disagrees with those commenters who believed
these incidents are merely exposure incidents roughly comparable with
exposure to loud noises. These incidents are clearly injuries, where
the worker has experienced a cut or laceration wound.
OSHA recognizes that these injuries are different from most
workplace cuts and lacerations, whose seriousness depends largely on
the size, location, jaggedness, or degree of contamination of the cut,
which determines the need for medical treatment, restricted work, or
time away for recuperation and thus the recordability of the incident.
In contrast, all injuries from contaminated needles and sharps are
serious because of the risk of contracting a potentially fatal
bloodborne disease that is associated with them.
Many commenters argued that needlestick and sharps injuries are not
the kinds of injuries that Congress intended employers to record, as
articulated in the OSH Act (see, e.g., Exs. 15: 239, 308, 313, 345,
352, 353, 375, 395). As discussed earlier in the Legal Authority
section, OSHA disagrees, believing that Congress mandated the recording
of all non-minor injuries and illnesses as well as all injuries
resulting in medical treatment or one of the other general recording
criteria. OSHA finds that needlestick and sharps injuries involving
blood or other potentially infectious materials are non-minor injuries,
and therefore must be recorded. This conclusion is consistent with the
Senate Committee on Appropriations report accompanying the fiscal year
1999 Departments of Labor, Health and Human Services, and Education and
Related Agencies Appropriation Bill, 1999 (S. 2440) which included the
following language:
Accidental injuries from contaminated needles and other sharps
jeopardize the well-being of our Nation's health care workers and
result in preventable transmission of devastating bloodborne
illnesses, including HIV, hepatitis B, and hepatitis C. The
committee is concerned that the OSHA 200 Log does not accurately
reflect the occurrence of these injuries. The committee understands
that the reporting and recordkeeping standard (29 CFR 1904) requires
the recording on the OSHA 200 Log of injuries from potentially
contaminated needles and other sharps that result in: the
recommendation or administration of medical treatment beyond first
aid; death, restriction of work or motion; loss of consciousness,
transfer to another job, or seroconversion in the worker. Accidental
injuries with potentially contaminated needles or other sharps
require treatment beyond first aid. Therefore, the Committee urges
OSHA to require the recording on the OSHA 200 log of injuries from
needles and other sharps potentially contaminated with bloodborne
pathogens (Senate Report 105-300).
OSHA finds that these injuries are significant injuries because of the
risk of seroconversion, disease, and death, they pose (see the preamble
to the OSHA Bloodborne Pathogens Standard at 56 FR 64004).
OSHA recognizes that requiring the recording of all injuries from
contaminated needles and sharps will result in more cases being
recorded on employers' Logs and will increase the number of such
injuries reflected in the Nation's statistics. However, the Agency does
not agree that the statistics will be inappropriately inflated.
Instead, OSHA believes that the statistics will henceforth include, for
the first time, cases that reflect the incidence of these significant
injuries accurately. Adding these cases to the Nation's statistics will
create a more accurate accounting of work-related injury and illness
cases, information that will be useful to employers, employees, the
government and the public. In addition, the collection of this
information at the establishment level will generate data employers and
employees can use to analyze injury and illness patterns and make
improvements in work practices and equipment. Recording these injuries
will thus help to realize one of this rulemaking's primary goals, to
improve the utility and quality of the information in the records.
If OSHA were to adopt a final rule that only required the recording
of seroconversion cases and cases that met the general recording
criteria, as many commenters suggested (see, e.g., Exs. 15: 52, 200.
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401), the
Nation's statistics would not be as complete and accurate, and
workplace records would not have the same preventive value for
employees and employers. In addition, that approach would be more
complex because it
[[Page 6002]]
would require employers to evaluate each case against several criteria
before recording it. The approach taken in the final rule is
considerably simpler. Recording all such injuries also helps to protect
the privacy of workers who have been injured in this way. Needlestick
and sharps injuries raise special privacy concerns. The comments on
this subject show a universal concern for the privacy of a worker's
medical information and disease status, and OSHA has taken several
special precautions, discussed elsewhere in the preamble, to protect
this privacy. Several commenters suggested recording all needlesticks
and sharps incidents as a method for masking the identify of workers
who actually contract disease (see, e.g., Exs. 15: 379, 380, 418). OSHA
has adopted this practice in the final rule because recording all of
these injuries will help to protect the privacy of individual workers
as well as produce higher quality data.
OSHA disagrees with those commenters who argued that the
Sec. 1904.8 recording requirement would be duplicative or redundant
with the requirements in the Bloodborne Pathogens standard (29 CFR
1910.1030). That standard requires the employer to document the
route(s) of exposure and the circumstances under which the exposure
incident occurred, but does not require that it be recorded on the Log
(instead, the standard requires only that such documentation be
maintained with an employee's medical records). The standard also has
no provisions requiring an employer to aggregate such information so
that it can be analyzed and used to correct hazardous conditions before
they result in additional exposures and/or infections. The same is true
for other medical records kept by employers: they do not substitute for
the OSHA Log or meet the purposes of the Log, even though they may
contain information about a case that is also recorded on the Log.
OSHA is requiring only that lacerations and puncture wounds that
involve contact with another person's blood or other potentially
infectious materials be recorded on the Log. Exposure incidents
involving exposure of the eyes, mouth, other mucous membranes or non-
intact skin to another person's blood or OPIM need not be recorded
unless they meet one or more of the general recording criteria, result
in a positive blood test (seroconversion), or result in the diagnosis
of a significant illness by a health care professional. Otherwise,
these exposure incidents are considered only to involve exposure and
not to constitute an injury or illness. In contrast, a needlestick
laceration or puncture wound is clearly an injury and, if it involves
exposure to human blood or other potentially infectious materials, it
rises to the level of seriousness that requires recording. For splashes
and other exposure incidents, the case does not rise to this level any
more than a chemical exposure does. If an employee who has been exposed
via a splash in the eye from the blood or OPIM of a person with a
bloodborne disease actually contracts an illness, or seroconverts, the
case would be recorded (provided that it meets one or more of the
general recording criteria).
Privacy Issues
There was support in the record for OSHA's proposal to record
occupationally acquired bloodborne pathogen diseases simply as the
initial bloodborne exposure incident to protect employee
confidentiality. Eli Lilly and Company (Ex. 15: 434) commented:
Lilly agrees with the Agency's proposed method of recording
exposure incidents that result in disease. All of these recordable
incidents should be recorded simply as the type of bloodborne
exposure incident (e.g. needlestick) with no reference to the type
of disease. While Lilly is concerned about protecting the privacy of
every individual employee's medical information, Lilly concedes that
the current social stigma resulting from bloodborne pathogen
diseases demands a more simple recordkeeping requirement.
Privacy issues, however, concerned many of the commenters to the
rulemaking record. Metropolitan Edison/Pennsylvania Electric Company
(M/P), for example, was so concerned with employee privacy that ``[d]ue
to the sensitivity of Bloodborne Pathogenic diseases and related
confidentiality concerns, M/P disagrees with recording these types of
incidents'' (Ex. 15: 254). The American Automobile Manufacturers
Association (AAMA), among others, expressed concern that the recording
requirement for bloodborne pathogen diseases would discourage employees
from reporting exposures and might also discourage individuals from
seeking treatment. AAMA wrote:
[m]any individuals who contract an infectious disease from a
workplace event or exposure will be against having their names on
the OSHA log for scrutiny by any employee or former employee of the
establishment. To openly list (on the OSHA log) an individual with
an infectious disease will discourage some employees from reporting
exposures. It may also discourage individuals from seeking
treatment, which may be lifesaving or which may limit the spread of
the disease. We oppose the development of any system which directly
or indirectly discourages individuals from seeking medical
evaluation or treatment, for the sake of data collection (Ex. 15:
409).
The AAMA proposed as an alternative ``to remove all personal
identifiers for infectious disease cases from the OSHA log. Some type
of employer created coding system could be instituted, as long as the
code was consistently applied. Authorized medical personnel and
government representatives would be the only individuals permitted
access to the personal identifiers and/or key to the coding system''
(Ex. 15: 409). The Quaker Oats Company and the Ford Motor Company
supported similar alternatives (Exs. 15: 289, 347). A number of
commenters specifically supported the use of a coding system (see,
e.g., Exs. 15: 146, 213, 260, 262, 265, 345, 347, 409).
OSHA shares these commenters' concern about the privacy of
employees who seroconvert as the result of a bloodborne pathogens-
related needlestick or sharps incident and finds that these incidents
are clearly the type of non-minor occupational injury and illness
Congress intended to be included in the OSHA recordkeeping system. If
the Agency were to exclude these cases categorically from the records,
it would not be meeting the requirements of the OSH Act to produce
accurate statistics on occupational death, injury and illness.
The final recordkeeping rule addresses this issue by prohibiting
the entry of the employee's name on the OSHA 300 Log for injury and
illness cases involving blood and other potentially infectious
material. Further, by requiring employers to record all needlestick and
sharps incidents, regardless of the seroconversion status of the
employee, coworkers and representatives who have access to the Log will
be unable to ascertain the disease status of the injured worker. OSHA
believes that the privacy concern case approach of the final rule
obviates the need for a coding system because the case number assigned
to the recorded injury will serve the purpose of a code, without adding
additional complexity or burden. A discussion of access to the records
is contained in the portion of the preamble associated with section
1904.35, Employee Involvement.
The College of American Pathologists objected to the inclusion of
hepatitis C in the list of bloodborne pathogen diseases. They commented
that ``the great majority of cases of hepatitis C lack any identifiable
source of exposure. More cases of HCV infection occur among non-health
care workers than among health care workers. To presume that an
individual who is infected with
[[Page 6003]]
HCV acquired it on the job just because they work in a health care
setting is unjustified'' (Ex. 15: 37). On the other hand, a commenter
from Waukesha Memorial Hospital suggested that OSHA ``should include
all blood borne pathogen disease that develops as a result of an
exposure incident, not just HIV, Hep B, Hep C, even though those are
the major players in a hospital setting. Since we must teach that there
are many bloodborne pathogens, it doesn't make sense to me to only
record some and not all'' (Ex. 15: 436). OSHA believes that hepatitis C
cases should, like other illness cases, be tested for recordability
using the geographic presumption that provides the principal rationale
for determining work-relatedness throughout this rule. OSHA also agrees
with the commenter from Waukesha Memorial Hospital that all bloodborne
pathogen diseases resulting from events or exposures in the workplace
should be recorded. Therefore, OSHA has modified the final regulatory
text of paragraph 1904.8(b)(4)(i) to reflect this decision.
Section 1904.9 Additional Recording Criteria for Cases Involving
Medical Removal Under OSHA Standards
The final rule, in paragraph 1904.9(a), requires an employer to
record an injury or illness case on the OSHA 300 Log when the employee
is medically removed under the medical surveillance requirements of any
OSHA standard. Paragraph 1904.9(b)(1) requires each such case to be
recorded as a case involving days away from work (if the employee does
not work during the medical removal) or as a case involving restricted
work activity (if the employee continues to work but in an area where
exposures are not present.) This paragraph also requires any medical
removal related to chemical exposure to be recorded as a poisoning
illness.
Paragraph 1904.9(b)(2) informs employers that some OSHA standards
have medical removal provisions and others do not. For example, the
Bloodborne Pathogen Standard (29 CFR 1910.1030) and the Occupational
Noise Standard (29 CFR 1910.95) do not require medical removal. Many of
the OSHA standards that contain medical removal provisions are related
to specific chemical substances, such as lead (29 CFR 1901.1025),
cadmium (29 CFR 1910.1027), methylene chloride (29 CFR 1910.1052),
formaldehyde (29 CFR 1910.1048), and benzene (29 CFR 1910.1028).
Paragraph 1904.9(b)(3) addresses the issue of medical removals that
are not required by an OSHA standard. In some cases employers
voluntarily rotate employees from one job to another to reduce exposure
to hazardous substances; job rotation is an administrative method of
reducing exposure that is permitted in some OSHA standards. Removal
(job transfer) of an asymptomatic employee for administrative exposure
control reasons does not require the case to be recorded on the OSHA
300 Log because no injury or illness--the first step in the
recordkeeping process--exists. Paragraph 1904.9(b)(3) only applies to
those substances with OSHA mandated medical removal criteria. For
injuries or illnesses caused by exposure to other substances or
hazards, the employer must look to the general requirements of
paragraphs 1910.7(b)(3) and (4) to determine how to record the days
away or days of restricted work.
The provisions of Sec. 1904.9 are not the only recording criteria
for recording injuries and illnesses from these occupational exposures.
These provisions merely clarify the need to record specific cases,
which are often established with medical test results, that result in
days away from work, restricted work, or job transfer. The Sec. 1904.9
provisions are included to produce more consistent data and provide
needed interpretation of the requirements for employers. However, if an
injury or illness results in the other criteria of Sec. 1904.7 (death,
medical treatment, loss of consciousness, days away from work,
restricted work, transfer to another job, or diagnosis as a significant
illness or injury by a physician or other licensed health care
professional) the case must be recorded whether or not the medical
removal provisions of an OSHA standard have been met.
The recording of OSHA mandated medical removals was not addressed
in the 1996 recordkeeping proposal. OSHA has included the provisions of
Sec. 1904.9 in the final rule to address a deficiency noted by a number
of commenters, and as a replacement for criteria that were contemplated
for the recording of various ailments in proposed Appendix B (61 FR
4063-4065). For example, R. L. Powell, Personnel Safety Manager for
Union Carbide Corporation, (Ex. 15: 396) asked about medical removal
and restricted work:
How does this criteria [restricted work] apply to ``medical
removal?'' Medical removal is sometimes mandated by other OSHA
standards under certain conditions. A similar technique may also be
used by a physician to conduct controlled tests to assess the impact
of workplace factors on a condition such as a chemical sensitivity.
A number of commenters recommended the use of medical removal
criteria as the correct recording level for various substances listed
in proposed Appendix B (see, e.g., Exs. 22; 15: 113, 155, 192, 199,
213, 242, 262, 272, 303, 304, 307, 326, 338, 340, 349). Many of these
commenters suggested the medical removal criteria as a substitute for
the proposed recording levels for lead and cadmium (Ex. 22; 15: 113,
155, 192, 340, 349). For example, Newport News Shipbuilding (Ex. 15:
113) said:
The proposed regulation requires recording lead and cadmium
cases based on biological action levels rather than on the onset of
illness. The purpose of the biological action level is to identify
those employees who are at greater risk of reaching the limits for
medical removal, so that onset of illness may be prevented. The use
of biological action levels as the basis of defining and recording
illness is inappropriate. Rather, lead and cadmium cases should be
recorded when medical removal is required by the specific standard.
The Institute of Scrap Recycling Industries, Inc. (Ex. 15: 192)
added:
This [proposed] statement clearly subverts the clear intent of
the OSHA lead standard that a blood lead level of 50 g/100
g of whole blood and not 40 g/100 g of whole blood is the
criteria for medical removal and therefore also the criteria for
documentation on the OSHA injury and illness log. Had the scientific
evidence on which the OSHA lead standard was based pointed clearly
to 40 g/100 g of whole blood as the medical removal
standard and therefore the standard for documentation on the OSHA
injury and illness log the standard would have reflected this.
Therefore it would clearly subvert the purpose and scope of the OSHA
lead standard, that was based on scientific evidence and an
exhaustive public comment period on the scientific data, to
establish a clear benchmark for a recordable event on the injury and
illness log without the benefit of supporting scientific study and
data and a public comment period on such information.
The Institute of Scrap Recycling Industries, Inc is incorrect about
the lead standard's determination of recording criteria on the OSHA
injury and illness log. The lead standard (Sec. 1910.1025) does not
specifically address the recording issue, but the lead standard does
address the medical removal issue. The Institute points to the benefit
of using medical removal criteria for recording purposes, and OSHA
agrees that these criteria are useful for recordkeeping purposes. The
medical removal provisions of each standard were set using scientific
evidence established in the record devoted to that rulemaking. OSHA
takes care when setting the medical removal provisions of standards to
ensure that these provision reflect a material harm, i.e., the
existence of an abnormal condition that is non-minor and thus
[[Page 6004]]
worthy of entry in the OSHA injury and illness records.
Other commenters urged OSHA to use the medical removal criteria as
a replacement for all of proposed Appendix B. (see, e.g., Exs. 15: 199,
213, 242, 262, 303, 304, 307, 326, 338, 375). For example, Southern
Nuclear Operating Company (Ex. 15: 242) stated that:
Mercury, Lead, Cadmium, Benzene: In these cases, it is
appropriate to distinguish between biological markers that merely
point to exposure versus those that relate to illness or disease.
All of the recordability criteria for these substances are based on
various ``action'' levels stated in their respective OSHA
regulations. Southern Nuclear Operating Company believes that the
appropriate criteria for recording these cases as illnesses should
be the ``medical removal'' criteria stated in their respective
regulations coupled with a physician's diagnosis of disease rather
that the ``action'' levels as stated in the proposal. These
``medical removal'' criteria are more indicative of disease or
illness. If the ``action'' levels for these substances are used as
the recording criteria, the number of illnesses recorded on the OSHA
log would more accurately reflect the numbers of workers covered by
a given exposure control program as opposed to the number of
illnesses that result from an inadequate program.
The American Petroleum Institute (API) argued that:
API incorporates in its recommended Appendix B the recording of
cases when medical removal is required by a specific OSHA standard.
API concedes this is inconsistent with the concept of ``serious or
significant''--and inconsistent with API's fundamental belief that
actions by employers to prevent cases from becoming serious should
not be recorded--because such medical removals are by design
preventive; that is, intended to occur before a case becomes
serious. However, API acknowledges that it is extremely difficult to
define and get substantial agreement on any straight-forward and
verifiable criteria when such cases are indeed ``serious''.
Therefore, API has decided to recommend the medical-removal
criterion for Appendix B as the best on-balance solution for
situations involving toxic substance adsorption. (Ex. 15: 375)
A number of commenters opposed the use of mandatory medical removal
levels for injury and illness recording purposes (see, e.g., Exs. 25;
15: 146, 193, 258, 261, 304, 305, 318, 346, 358). Many argued that the
OSH Act did not support the use of medical removals (see, e.g., Exs.
25; 15: 258, 261, 304, 358). For example, the National Association of
Manufacturers (NAM) commented:
There is no reference in Section 24(a) or Section 8(c)(2) of the
OSH Act to recording exposure incidents that do not result in
disabling, serious or significant injuries or illnesses; or is there
any reference in those sections to medical removal provisions or
other action levels that do not result in disabling, serious or
significant injuries or illnesses. On the other hand, Section
8(c)(3) does discuss--as a separate component of OSHA's occupational
safety and health statistics program--maintaining records of
employee exposures to toxic materials and harmful physical agents
pursuant to standards issued under Section 6 of the OSH Act.
This is a rulemaking about the statistical program for tracking
disabling, serious or significant injuries and illnesses--nothing
more and nothing less. We believe Congress determined that those are
the criteria that OSHA should utilize for this particular component
of its statistical program. A statistical program that aggregates
disabling, serious or significant injuries and illnesses with other
conditions and exposure incidents, is contrary to both the
congressional directive and the goal of this recordkeeping system.
While these commenters are correct in noting that the OSH Act does
not specifically address medical removal levels and whether or not
cases meeting these levels should be recorded, the Act also does not
exclude them. The Act does require the recording of injuries and
illnesses that result in ``restriction of work or motion'' or
``transfer to another job.'' OSHA finds that cases involving a
mandatory medical removal are cases that involve serious, significant,
disabling illnesses resulting in restriction of work and transfer to
another job, or both. These medical restrictions result either in days
away from work (form of restriction) or days when the worker can work
but is restricted from performing his or her customary duties.
Other commenters objected to recording medical removals because
they are precautionary in nature (Ex. 15: 146, 193, 258, 261, 305, 318,
346). The American Foundrymen's Society, Inc. (Ex. 15: 346) argued
that:
An abnormally high level of a toxic material in an individual's
blood (e.g., a lead level at or above the action level or the level
requiring ``medical removal'' under OSHA's Lead Standard) is not and
should not, in itself, be considered a recordable injury or illness.
A preventive or prophylactic measure such as medical removal (as
opposed to a restorative or curative measure) is not and should not
be deemed medical treatment, a job transfer or restricted activity
for purposes of recordability in the absence of a diagnosis of a
substantial impairment of a bodily function.
As stated previously, a ``diagnosis of substantial impairment of a
bodily function'' is not required for a case to meet OSHA recordkeeping
criteria, nor is it a limitation to recordability under the OSH Act.
Many injuries and illnesses meet the recording criteria of the Act but
lack diagnosis of a substantial impairment of a bodily function.
Although the medical removal provisions are included in OSHA's
standards to encourage participation in the medical program by
employees and to prevent progression to serious and perhaps
irreversible illness, they also reflect illnesses caused by exposures
in the workplace and are thus themselves recordable. The workers are
being removed not only to prevent illness, but to prevent further
damage beyond what has already been done. Thus OSHA does not agree that
medical removal measures are purely preventive in nature; instead, they
are also remedial measures taken when specific biological test results
indicate that a worker has been made ill by workplace exposures.
OSHA has therefore included section 1904.9 in the final rule to
provide a uniform, simple method for recording a variety of serious
disorders that have been addressed by OSHA standards. The Sec. 1904.9
provisions of the final rule cover all of the OSHA standards with
medical removal provisions, regardless of whether or not those
provisions are based on medical tests, physicians' opinions, or a
combination of the two. Finally, by relying on the medical removal
provisions in any OSHA standard, section 1904.9 of the final rule
establishes recording criteria for future standards, and avoids the
need to amend the recordkeeping rule whenever OSHA issues a standard
containing a medical removal level.
Section 1904.10 Recording Criteria for Cases Involving Occupational
Hearing Loss
The recording criteria employers should use to record occupational
hearing loss on the OSHA recordkeeping forms have been an issue since
OSHA first proposed to require hearing conservation programs for
general industry employers (39 FR 37775, October 24, 1974). Job-related
hearing loss is a significant occupational safety and health issue
because millions of workers are employed in noisy workplaces and
thousands of workers experience noise-induced hearing loss each year.
Noise-induced hearing loss is a serious and irreversible condition that
may affect the safety and well-being of workers for the rest of their
lives.
For the nation as a whole in 1997, the BLS reported only 495 cases
of occupational hearing loss resulting in days away from work (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://stats.bls.gov/case/ostb0684.txt; BLS Characteristics Data Table R15 of
04/22/1999). Hearing loss is not the type of occupational injury or
illness that typically requires days away from work for recuperation,
as is often the case for
[[Page 6005]]
a fracture, fall, or carpal tunnel syndrome case. OSHA believes that
there are many cases of hearing loss--probably numbering in the
thousands--that occur every year as a result of job-related noise
exposure but do not result in days away from work and are thus not
captured in the BLS statistics. Because these hearing losses are often
permanent, a large number of Americans, both working and retired, are
currently suffering the effects of hearing loss due to occupational
exposure.
The changes being made to the OSHA 300 form in the final rule will
improve the quality of the data collected nationally on this important
occupational condition by providing consistent hearing loss recording
criteria, thus improving the consistency of the hearing loss statistics
generated by the BLS occupational injury and illness collection
program. National hearing loss statistics will also be improved because
OSHA has added a column to the OSHA 300 Log that will require
employers, for the first time, to separately collect and summarize data
specific to occupational hearing loss. These changes mean that the BLS
will collect hearing loss data in future years, both for cases with and
without days away from work, which will allow for more reliable
published statistics concerning this widespread occupational disorder.
Paragraph 1904.10(a) of the final rule being published today
requires an employer to record an employee's hearing test (audiogram)
result if that result reveals that a Standard Threshold Shift (STS) for
that employee has occurred. If the employee is one who is covered by
the medical surveillance requirements of OSHA's Occupational Noise
standard (29 CFR 1910.95), compliance with the standard will generate
the information necessary to make recording decisions.
If the employee is not covered by the 29 CFR 1910.95 noise
standard, OSHA rules do not require the employer to administer baseline
or periodic audiograms, and the 1904 rule does not impose any new
requirements for employers to obtain baseline information where it is
not already required. However, some employers conduct such tests and
acquire such information for other reasons. If the employer's workplace
is a high noise environment (i.e., has noise levels that exceed 85 dBA)
and the employer has the relevant audiogram information for an
employee, the employer must record any identified work-related hearing
loss equal to or greater than an OSHA-defined STS on the Log. This
means that an employer in the construction industry, for example, who
is aware that his or her work activities regularly generate high noise
levels and who has audiometric data on the hearing level of the
employees exposed to those noise levels must record on the Log any STS
detected in those workers. OSHA believes that this approach to the
recording of work-related hearing loss cases among these workers not
covered by the noise standard is appropriate because it is reasonable,
protective, and administratively straightforward.
Paragraph 1904.10(b)(1) of the final rule defines an STS as that
term is defined in the Occupational Noise Standard: as a change in an
employee's hearing threshold, relative to the baseline audiogram for
that employee, of an average of 10 decibels (dB) or more at 2000, 3000,
and 4000 hertz in one or both ears. The Noise standard, at paragraph
1910.95(c)(1), describes the employees in general industry who are
covered by the required hearing conservation program as follows:
The employer shall administer a continuing, effective hearing
conservation program, as described in paragraphs (c) through (o) of
this section, whenever employee noise exposures equal or exceed an
8-hour time-weighted average sound level (TWA) of 85 decibels
measured on the A scale (slow response) or, equivalently, a dose of
fifty percent. For purposes of the hearing conservation program,
employee noise exposures shall be computed in accordance with
appendix A and Table G-16a, and without regard to any attenuation
provided by the use of personal protective equipment.
Paragraph 1904.10(b)( 2) of the final recordkeeping rule directs
employers how to determine whether a recordable STS has occurred. The
paragraph deals with two situations: (1) where the employee has not
previously experienced such a hearing loss, and (2) where the employee
has experienced a past recordable hearing loss. If the employee has
never previously experienced a recordable hearing loss, the employer
must compare the results of the employee's current audiogram with the
employee's baseline audiogram, if the employee has a baseline
audiogram. The employee's baseline audiogram could either be that
employee's original baseline audiogram or a revised baseline audiogram
adopted in accordance with paragraph (g)(9) of 29 CFR 1910.95. For
employees who have not previously had a recordable hearing loss with
that employer, the loss in hearing is computed using the preemployment
hearing test result so that any hearing loss the employee may have
experienced before obtaining employment with the employer is not
attributed to noise exposure in that employer's workplace.
If the employee has previously experienced a recordable hearing
loss, the employer must compare the employee's current audiogram with
the employee's revised baseline audiogram (i.e., the audiogram
reflecting the prior recorded hearing loss). For employees who have had
a previously recordable hearing loss with that employer, the final
recordkeeping rule thus ensures that the employer does not record the
same case of hearing loss twice, but that if a second STS occurs, the
employer will record that additional hearing loss.
Paragraphs 1904.10(b)(3) and (4) of the final rule allow the
employer to take into account the hearing loss that occurs as a result
of the aging process and to retest an employee who has an STS on an
audiogram to ensure that the STS is permanent before recording it. The
employer may correct the employee's audiogram results for aging, using
the same methods allowed by the OSHA Noise standard (29 CFR 1910.95).
Appendix F of Sec. 1910.95 provides age correction for presbycusis
(age-induced hearing loss) in Tables F-1 (for males) and F-2 (for
females). Further, as permitted by the Noise standard, the employer may
obtain a second audiogram for employees whose first audiogram registers
an STS if the second audiogram is taken within 30 days of the first
audiogram. The employer may delay recording of the hearing loss case
until the STS is confirmed by the second audiogram and is, or course,
not required to record the case if the second audiogram reveals that
the STS was not permanent.
Paragraph 1904.10(b)(5) of the final rule establishes how employers
are to determine the work-relatedness of hearing loss cases. This
paragraph specifies that, in accordance with the recordkeeping rule's
definition of work-relationship, hearing loss is presumed to be work-
related for recordkeeping purposes if the employee is exposed to noise
in the workplace at an 8-hour time-weighted average of 85 dB(A) or
greater, or to a total noise dose of 50 percent, as defined in 29 CFR
1910.95. (Noise dose is defined as the amount of actual employee
exposure to noise relative to the permissible exposure limit for noise;
a dose greater than 100% represents exposure above the limit.) For
hearing loss cases where the employee is not exposed to this level of
workplace noise, or where the employee is not covered by the
Occupational Noise standard, the employer must use the rules set out in
Sec. 1904.5 to determine if the hearing loss is to be
[[Page 6006]]
considered work related for recordkeeping purposes.
Paragraph 1904.10(b)(6) allows the employer not to record a hearing
loss case if physician or other licensed health care professional
determines that the hearing loss is not work-related or has not been
aggravated by occupational noise exposure. This provision is consistent
with the Occupational Noise standard, and it allows the employer not to
record a hearing loss case that is not related to workplace events or
exposures; examples of such cases are hearing loss cases occurring
before the employee is hired or those unrelated to workplace noise.
The recordkeeping provisions in section 1904.10 of the final
recordkeeping rule thus match the provisions of the Occupational Noise
standard by (1) covering the same employers and employees (with the
exception of cases occurring among employees not covered by that
standard whose employers have audiometric test results and high-noise
workplaces); (2) using the same measurements of workplace noise; (3)
using a common definition of hearing loss, i.e., the STS; (4) using the
same hearing loss measurement methods; (5) using the same definitions
of baseline audiogram and revised baseline audiogram; (6) using the
same method to account for age correction in audiogram results; and (7)
allowing certain temporary threshold shifts to be set aside if a
subsequent audiogram demonstrates that they are not permanent or a
physician or other licensed health care professional finds they are not
related to workplace noise exposure.
The Former Rule
The regulatory text of OSHA's former recordkeeping rule did not
specifically address the recording of hearing loss cases, and the
Sec. 1910.95 Occupational Noise Standard does not address the recording
of hearing loss cases on the OSHA Log. However, the 1986 Recordkeeping
Guidelines provided clear advice to employers to the effect that work-
related hearing loss was a recordable disorder, that it could be either
an injury or illness, depending on the events and exposures causing the
hearing loss, and that all hearing loss illnesses were required to be
recorded, regardless of the industry in which the employer worked (Ex.
2, p. 4). However, the Guidelines did not provide specific guidance on
the kinds of hearing test or audiogram results that would constitute a
recordable, work-related hearing loss.
In 1990, OSHA considered issuing a Compliance Directive addressing
the recording of hearing loss cases on employers' OSHA 200 Logs, but
decided that the issue of the recording of hearing loss cases should be
addressed through notice-and-comment rulemaking at the time of the
revision of the recordkeeping rule. To address this topic in the
interim before the final recordkeeping rule was issued, OSHA sent a
memorandum to its field staff (June 4, 1991) to clarify its enforcement
policy on the recording of occupational hearing loss and cumulative
trauma disorders on the OSHA 200 Log, on the grounds that these cases
``have received national attention and require immediate
clarification.'' The memorandum specified that ``OSHA will issue
citations to employers for failing to record work related shifts in
hearing of an average of 25 dB or more at 2000, 3000, and 4000 hertz
(Hz) in either ear on the OSHA 200 Log.'' The interim enforcement
policy was intended to provide a conservative approach to the issue
until the recordkeeping rulemaking was completed. The interim policy
stated that ``The upcoming revision of the recordkeeping regulations,
guidelines and related instructional materials will address the
recordability criteria for all work related injuries and illnesses.''
The memo also mentioned the use of standard threshold shifts (STS)
results, saying:
Employers are presently required by 29 CFR 1910.95 to inform
employees in writing within 21 days of the determination of a
Standard Threshold Shift (an average of 10 dB or more at 2000, 3000
and 4000 Hz in either ear) and to conduct specific follow-up
procedures as required in paragraph (g) of the standard. Employers
should be encouraged to use this information as a tracking tool for
focusing noise reduction and hearing protection efforts.
The Proposal
The proposed recordkeeping criterion for recording a case of
hearing loss (61 FR 4064) was an average shift of 15 decibels (dB) or
more at 2000, 3000, and 4000 hertz in one or both ears after the
employee's hearing loss had been adjusted for presbycusis (age-related
hearing loss). OSHA proposed to permit employers to delete the record
of the hearing loss injury or illness if a retest performed within 30
days indicated that the original shift was not permanent. Once a 15 dB
work-related shift had occurred, however, OSHA proposed that the
employee's baseline audiogram (for recordkeeping purposes) be adjusted
to reflect that loss. A subsequent audiogram would have to reveal an
additional 15 dB shift from the new or revised baseline value to be
considered a new hearing loss injury or illness. OSHA proposed to
presume work-relationship if an employee was exposed on the job to an
8-hour time-weighted average noise level equaling 85 dB(A) (61 FR
4064).
OSHA also raised several issues related to hearing loss recording
in the proposal (61 FR 4064):
The lowest action level in the noise standard is an average
shift of 10 decibels or more at 2000, 3000 and 4000 hertz. OSHA is
proposing the 15 decibel criteria for recordkeeping purposes to
account for variations in the reliability of individual audiometric
testing results.
OSHA asks for input on which level of a shift in hearing should
be used as a recording criteria; 10 decibels? 20 decibels? 25
decibels? For each level, what baseline should be used?
Preemployment (original) baseline? Audiometric zero? Is adjusting
for presbycusis appropriate?
Comments on the Proposal
OSHA's proposed recording criterion for hearing loss received more
comments than the proposed criterion for any other type of injury or
illness other than musculoskeletal disorders. The hearing loss comments
cover a wide variety of issues, including which hearing test results
should or should not be considered an OSHA recordable illness, the
choice of baseline audiograms, retesting and persistence of hearing
loss, determining work relatedness, the appropriateness of correcting
audiograms for aging (presbycusis), and the role of physicians and
other licensed health care professionals in the determination of
recordable hearing loss cases. The issues raised by commenters are
organized by topic and discussed below.
The Definition of Recordable Hearing Loss
There was limited support among commenters for OSHA's proposed 15
dB shift recording criterion (see, e.g., Exs. 15: 50, 61, 84, 111, 113,
156, 188, 233, 281, 289, 349, 407). However, many of these commenters
supported the use of a 15 dB shift as the recording criterion only if
the final recordkeeping rule also reflected other changes, such as
eliminating the correction for aging (see, e.g., Exs. 15: 50, 188, 407)
or limiting the recording of hearing loss to one case per worker per
lifetime (Ex. 15: 349). For example, General Electric (Ex. 15: 349)
suggested limiting the recording of hearing loss to one case per
employee:
GE supports recording an average standard threshold shift of 15
decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both
ears, adjusted for presbycusis and with a deletion upon retest as
described. The establishment of the recording criteria at a level
slightly higher than STS requiring action in the noise standards
allows the
[[Page 6007]]
employer the opportunity to take action before the STS progresses to
a recordable injury. GE recommends, however, that, to reduce the
administrative burden, the baseline not be revised after the shift,
that the original baseline be maintained and the hearing loss only
be recorded on the initial occasion of the 15 dB shift.
George R. Cook and Omar Jaurez, occupational audiologists (Ex. 15:
50), supported the 15dB level only if no adjustment for aging was
allowed:
[t]he Noise Standard has two loopholes in the identification of
STS. First it allows for revision of baseline when the loss is
persistent. The Standard does not identify persistence and it is
possible to revise a baseline early and subsequent STSs would be
postponed. The second loophole is the allowance of presbycusis which
hides changes in hearing. Therefore, a criteria which separates the
recording criteria from STS and protects the required STS follow-up
is necessary. A 20 or 25 dB criteria is felt to be too much change.
Most of the commenters, however, did not support the proposed 15 dB
criterion (see, e.g., Exs. 22; 26; 15: 25, 45, 108, 110, 119, 137, 146,
154, 171, 177, 201, 203, 213, 218, 246, 251, 262, 278, 295, 310, 329,
331, 334, 343, 347, 348, 350, 358, 369, 394, 396, 405, 424). Most of
these commenters recommended a recording criterion of a 25 dB shift,
i.e., the criterion used in OSHA's interim enforcement policy (see,
e.g., Exs. 22; 15: 45, 119, 137, 146, 154, 171, 177, 201, 203, 218,
246, 262, 278, 329, 331, 334, 343, 348, 358, 395, 424). Con Edison
wrote ``[l]owering the dB shift criteria to 15 dB [from 25 dB] would
result in recording cases which do not meet the clinical definition of
hearing loss'' (Ex. 15: 213), and the Amoco Corporation testified that
OSHA should ``[r]aise the hearing loss limit to a more appropriate
indication of material impairment'' (Ex. 22). The American Iron and
Steel Institute (Ex. 15: 395) commented:
The appropriate recording trigger should be the loss of hearing
recognized by the American Medical Association (AMA) as the lowest
indicator of any material impairment to the employee's hearing.
According to the AMA, a person has suffered material impairment when
testing reveals a 25 dB average hearing loss from audiometric zero
at 500, 1000, 2000, and 3000 hertz. OSHA itself has recognized that
this is the lowest level of hearing loss that constitutes any
material hearing impairment. see 46 Fed. Reg. 4083 (Jan. 18, 1981).
Below that level, an employee has suffered no noticeable injury or
illness.
The American Iron and Steel Institute disagreed that a 10 or a 15
dB shift in hearing should be recorded, stating that ``While a 15 dB
shift is arguably closer to a serious injury than a 10 dB shift,
neither is a principled approximation of the onset of any disabling
illness or injury, and each is inconsistent with OSHA's acknowledgment
in Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 n.18
(4th Cir. 1985), that no injury results until a person experiences a 25
dB loss.'' (OSHA does not agree with this characterization of its
position.)
Similarly, the Monsanto Company commented ``OSHA acknowledges in
the Hearing Conservation Amendment Standard that STS will occur and
nothing is required to be done to prevent it from occurring. Therefore,
it cannot be a measure of significantly impaired functional hearing
capacity. In the preamble to this rule, OSHA cites several excerpts of
testimony supporting this position'' (Ex. 15: 295).
Vulcan Chemicals commented that it ``believes the present
requirement [of a hearing level shift of 25 dB for recordkeeping] is
protective and recommends that the recordable criteria should remain at
25 decibels'' (Ex. 15: 171). New England Power justified its support
for a 25 dB shift as the recording criteria with the comment that there
``is far too much variability with an individual subject and the
equipment to ensure accuracy'' (Ex. 15: 170), and Tosco, arguing in a
similar vein, commented that the ``existing 25 dB shift provides an
easily identifiable measurement for determining injuries, and also
provides for variation in background noise during testing, variability
of the employee's health/hearing capability on the day being tested, as
well as variation in the employee's home/social lifestyle which may
contribute to hearing loss'' (Ex. 15: 246). The Can Manufacturers
Institute commented that a 25 dB shift criterion ``would identify as
consequential change in hearing acuity that is irreversible and
minimize multiple recording of change over time'' (Ex. 15: 331).
There was also support in the rulemaking record for using a 20 dB
shift as a criterion for recording hearing loss (see, e.g., Exs. 15:
108, 295, 396, 405, 423). Most of the reasons given for supporting this
level were the same as those provided as support for a 25 dB shift
recording criterion. For example, the Westinghouse Electric Corporation
commented that a ``20 decibel shift would not only allow for variances
in individual audiometric tests, but would also allow for the fact that
workplace noise levels are quite often more controlled and less severe
than noise levels in the home environment (e.g., trap shooting, stereo
sound levels, lawn mowing, and other types of non job-related
activities)'' (Ex. 15: 405). Commenting that a 20 dB shift is two times
the action level of a 10 dB shift prescribed by OSHA's Occupational
Noise standard (29 CFR 1910.95), Brown and Root, Inc. suggested that
this level ``would allow for a program to be initiated [at the action
level] and working before a case becomes recordable. If the program,
however, is not as effective as desired, the recordable level would
require that the case be logged'' (Ex. 15: 423). Finally, Union Carbide
Corporation argued that using a 20 dB shift as a recording criterion.
[i]s in the direction of simplicity since this is an even
multiple of 10 dB, which is the standard threshold shift and the
action level for triggering certain hearing conservation
requirements. Having an even multiple makes it much easier to track
two different baselines one for the hearing conservation
requirements and one for recordkeeping requirements. Our experience
has shown that it is an administrative nightmare to track 10 dB
baselines for hearing conservation and 25 dB baselines for
recordkeeping (Ex. 15: 396).
Industrial Health, Inc. (Ex. 15: 84), a mobile audiometry vendor,
supported either a 10 dB or 15 dB persistent shift as the recording
criterion and provided an analysis, using their data base of over 4
million audiograms. Their comments on the merits of the 10 dB and 15 dB
options, and whether each change is significant and noise related, are:
Noise relatedness: Using the OSHA shift formula across 2, 3 & 4
KHz (including OSHA's corrections for aging), a persistent shift of
either 10dB or 15dB shows a strong correlation with audiogram
patterns typical of exposure to noise (our samples showed more than
85 percent of such shifts appeared to be noise related, and most of
the remainder had been flagged by the reviewing audiologist as
either medical referrals or cases where the employee had given a
medically related explanation for the shift in hearing). Hence, we
conclude that a persistent shift based on the OSHA shift formula
with age correction, whether 10 dB or 15 dB, is a reasonably
accurate indication of a hearing change due to noise exposure
provided that medically related shifts are excluded.
Significance of change: We calculated historic shifts based on
both a 10 dB shift and a 15 dB shift on a sample industrial
database. The following results are for persistent shifts only. The
results showed that 15 dB shifts occurred less often than 10 dB
shifts (as would be expected), with approximately 70% as many 15 dB
shifts as 10 dB shifts. When both shifts occurred for an employee,
most (over 80%) of the 15 dB shifts occurred at exactly the same
test dates as did the 10 dB shifts, although in some cases (less
than 20%) the 15 dB shifts occurred at later times. In general, the
agreement was surprisingly good--much better than we had expected.
In most (about 80%) of the instances where a 10 dB shift occurred
but a 15 dB shift did not,
[[Page 6008]]
the significance of the 10 dB shift was questionable when the actual
data were examined. Less than 5% of what we judged to be significant
10 dB shifts were missed by the 15 dB rule.
As a result, our analysis indicates the following (based again
on all shifts having been demonstrated to be persistent):
a. A persistent 10 dB shift with age correction is a reasonably
good yardstick for significant change due to noise, although it does
flag some changes which are of questionable significance (perhaps as
high as 20% of the shifts).
b. A persistent 15 dB shift with age correction is a better
yardstick for significant change due to noise. In our tests it
produced roughly 70 percent as many shifts as the 10 dB rule, but
the difference was largely 10 dB shifts of questionable
significance. It did report some changes later than the 10 dB rule
and missed a few shifts (about 5%) which we judged to be of
significance.
Finally, there was strong support in the rulemaking record for
using a 10 dB shift (also identified as a standard threshold shift or
STS in the OSHA Noise standard) as a recording criterion for hearing
loss (see, e.g., Exs. 26; 42; 15: 25, 110, 251, 310, 347, 350, 369,
394). For example, the American College of Occupational and
Environmental Medicine noted that the ``STS is the earliest reliable
indication of measurable hearing loss for practical purposes. This is
the earliest practical level of early detection and prevention of
further loss is quite possible if the correct measures are taken'' (Ex.
15: 251). The Ford Motor Company agreed. Commenting that it currently
records any work-related hearing loss that results in an average loss
of 10 dB or more, the company noted that ``[r]ecording hearing loss in
its early stage provides Ford the information to correct hazardous
conditions and prevent serious impairment to an employee'' (Ex. 15:
347). Ford further stated that its ``method of recording occupational
hearing loss is consistent with the requirement of the Hearing
Conservation Amendment which requires notification to the employee.''
The Laborer's Health and Safety Fund of North America also pointed out
the inconsistency between OSHA's proposed recording criterion in the
recordkeeping rule and the criterion in OSHA's occupational noise
exposure standard. The Fund commented:
``The noise standard defines a 10 dB shift at 2, 3, and 4K as a
standard threshold shift and allows a revision of the baseline
should the shift persist. Along comes the recordkeeping rule which
says that a 15 dB shift is recordable, and a baseline revision (for
recordkeeping purposes) can be made when a 15 dB shift occurs. This
situation is an administrative nightmare. It is possible that a
hearing loss will never be recordable because the 'baseline' is
revised at a 10 dB shift. To avoid this situation, an employer would
have to establish 2 different baselines, one for the noise standard
provisions, and one for the recordkeeping rule provisions. This
situation is unacceptable. We recommend that standard threshold
shifts of 10 dB be used as the recordability criteria, since it is
consistent with the 1910.95 noise standard'' (Ex. 15: 310).
The Coalition to Preserve OSHA and NIOSH and Protect Workers'
Hearing (Exs. 26, 42) recommended a recording policy that would capture
instances of age-corrected STS, as defined in the OSHA noise standard,
that are confirmed as persistent and that are determined to be work-
related. The Coalition's comments are of particular interest because
its members include professional and scientific organizations dedicated
to the issue of studying and preventing hearing loss. Member
associations include the American Speech-Language-Hearing Association,
the American Industrial Hygiene Association, the National Hearing
Conservation Association, the Acoustical Society of America, the
Council for Accreditation in Occupational Hearing Conservation, Self
Help for Hard of Hearing People, Inc. and the Institute for Noise
Control Engineering. These groups represent well over 100,000
audiologists, acousticians, speech-language pathologists, industrial
hygienists, safety and health professionals, and persons with hearing
loss (Ex. 42, page 1).
The Coalition provided the following reasons for relying on a 10 dB
shift in hearing as an OSHA recordable condition (Ex. 42, pp. 9-13).
1. An allowance in the recording criteria for test-retest
variability is inappropriate (i.e. OSHA proposed the 15 dB criterion
rather than the 10 dB criterion ``to account for variations in the
reliability of individual audiometric results.''
2. An age-corrected STS is a large hearing change that can
affect communicative competence.
3. Typical occupational noise exposures do not justify a larger
shift criterion.
4. Recording OSHA STSs reduces the recordkeeping burden to
industry.
5. Current OSHA STS rates are not high.
6. Recording OSHA STSs will promote effective hearing
conservation programs.
Other commenters proposed still other criteria for recording
hearing loss. For example, Detroit Edison stated that a shift in
hearing level should not be used as a recording criterion for hearing
loss because this ``is not indicative of an illness or injury, but only
an indication that someone has had a slight change in their ability to
hear'' and proposed instead that ``the level of hearing impairment
should be used in recording hearing losses versus a threshold shift as
compared to a baseline'' (Ex. 15: 377). OSHA does not agree with this
commenter, however, because, as the record in the Noise standard
rulemaking indicates, permanent threshold shifts do indicate a non-
minor impairment, although not all STSs are disabling.
As is the case for many OSHA rules, the 1981 Noise standard was
challenged in the courts, which stayed several provisions. In 1983,
OSHA revised the hearing conservation amendment to revoke many of the
provisions stayed by the court, lift an administrative stay implemented
by OSHA, and make technical corrections (48 FR 9738). One of those
provisions involved the definition of STS, which was renamed a
``standard'' rather than ``significant'' threshold shift to help
differentiate the two separate methods used to calculate the STS in the
1981 and 1983 rules. Although OSHA changed the calculation method used
to establish an STS in 1983, the role and importance of the STS concept
in the context of a hearing conservation program was unchanged. The
main reason for changing the definition of STS in the 1983 standard was
to simplify the original calculation and address the concerns of
employers and audiology professionals who wished to avoid using a
computer to calculate an STS. The standard requires employers to take
follow-up actions when an STS is identified, notify the affected
employee, evaluate and refit hearing protectors, retrain the employee,
and, if necessary, refer the employee for medical evaluation.
The arguments put forward by the Coalition to Preserve OSHA and
NIOSH and Protect Workers' Hearing (Exs. 26, 42) are, in OSHA's view,
compelling reasons for requiring employers to record on their Logs any
case of work-related hearing loss that reaches the level of an STS.
OSHA is particularly persuaded by the Coalition's argument that ``An
age-corrected STS is a large hearing change that can affect
communicative competence'' because an age-corrected STS represents a
significant amount of cumulative hearing change from baseline hearing
levels. In the words of the Coalition, ``For an individual with normal
hearing on the baseline audiogram, STS usually involves age-corrected
shifts of 15-20 dB at 3000 and 4000 Hz. For an individual with pre-
existing high-frequency hearing loss on the baseline, STS usually
involves substantial progression of the hearing loss into the critical
speech frequencies. The absolute shift values before age corrections
are
[[Page 6009]]
considerably larger.'' The Coalition also stressed that the method of
averaging hearing loss at several frequencies, as is required to
determine an STS under the OSHA Noise standard, tends to ``obscure the
large hearing shifts at individual frequencies which usually occur
before the average changes by a specified amount'' (Ex. 42, p. 10).
OSHA has rejected, for recordkeeping purposes, the use of the 25 dB
shift from audiometric zero prescribed by the American Medical
Association Guidelines for Material Impairment. The AMA's 25 dB
criterion is intended to be used to determine the level at which the
employee should be compensated for hearing loss-related medical bills
or lost time. In the context of occupational noise exposure, hearing
loss of this magnitude reflects a serious impairment of health or
functional capacity. As discussed in the Legal Authority section,
however, the Congress intended the OSHA recordkeeping system to capture
all non-minor occupational injuries and illnesses, and OSHA believes
that an STS loss of hearing represents such an injury. An STS is an
abnormal condition that should be recorded because it represents a
material loss in hearing ability, beyond the normal effects of aging.
OSHA has also rejected the 15 dB and 20 dB shift recording options,
for several reasons. First, although OSHA suggested in the proposal
that an additional 5 dB beyond the 10-dB STS shift was needed to
account for variability in testing, this has not been supported by the
record. As the Medical Educational Development Institute (Ex. 15: 25)
stated: ``[t]est/re-test reliability of 5 dB is well established in
hearing testing. For example, the Council on Accrediting Occupational
Hearing Conservationists maintain this range of reliability in their
training guidelines and this is recognized in American National
Standard Method for Manual Pure-Tone Threshold Audiometry, S3.21--1978
(R1992).''
The Coalition to Preserve OSHA and NIOSH and Protect Workers'
Hearing (Ex. 26) provided additional justification for dropping the
proposed rule's 5 dB reliability margin: ``The allowance for a retest
(or even multiple retests) should largely eliminate spurious shifts due
to measurement error in audiometry. In fact, one of OSHA's original
reasons for choosing a frequency-averaged shift (the OSHA STS) as a
trigger level for employee follow-up was that the frequency averaging
process reduces the influence of random audiometric variability.''
Because reliance on a frequency-averaged rather than single frequency
shift increases the reliability of audiometric measurements, OSHA has
not adopted NIOSH's recommendation that the hearing loss criterion
should be a 15 dB shift at any frequency (Ex. 15: 407). Single
frequency calculations are less reliable and may therefore lead to the
under- or over-recording of hearing loss cases compared with the STS
method of averaging loss over several frequencies.
In the final recordkeeping rule, OSHA has chosen to use the
Occupational Noise standard's STS--an average shift in either ear of 10
dB or more at 2000, 3000, and 4000 hertz--as the shift in hearing that
must be recorded by an employer on the OSHA log as a hearing loss case.
An STS clearly represents a non-minor injury or illness of the type
Congress identified as appropriate for recordkeeping purposes. The
final rule allows the employer to adjust an employee's hearing test
results for presbycusis (age), to retest within 30 days (the employer
is not required to record if there is a retest within 30 days and the
retest refutes the original test), and to have the test results
evaluated by a physician or other licensed health care professional.
Using the STS as the recording criterion also meets one of the primary
purposes of this rulemaking, to improve the simplicity of the overall
recordkeeping system. Relying on the Noise standard's STS shifts avoids
the complexity referred to by many commenters (see, e.g., Exs. 15: 310,
396) of maintaining multiple baselines for the Noise standard and the
OSHA recordkeeping rule. As the Laborers' Health & Safety Fund of North
America (Ex. 15: 310) commented:
The noise standard defines a 10 dB shift at 2,3, and 4K as a
standard threshold shift and allows a revision of the baseline
should the shift persist. Along comes the recordkeeping rule which
says that a 15 dB shift is recordable, and a baseline revision (for
recordkeeping purposes) can be made when a 15 dB shift occurs. This
situation is an administrative nightmare. It is possible that a
hearing loss will never be recordable because the baseline is
revised at a 10 dB shift. To avoid this situation, an employer would
have to establish 2 different baselines, one for the noise standard
provisions, and one for the recordkeeping rule provisions. This
situation is unacceptable. We recommend that standard threshold
shifts of 10 dB be used as the recordability criteria, since it is
consistent with the 1910.95 noise standard.
Several commenters (see, e.g., Exs. 15: 295, 395) argued that OSHA
itself had discounted the significance of the 10 dB STS during the 29
CFR 1910.95 rulemaking. OSHA disagrees with this assessment of the
Agency's position on the importance of an STS. In the 1981 preamble to
the Hearing Conservation Amendment, OSHA found that a 10 dB shift in
hearing threshold is significant because it is outside the range of
audiometric error and ``it is serious enough to warrant prompt
attention'' (46 FR 4144). The 1983 preamble reinforces these findings.
It states that:
Correctly identifying standard threshold shifts will enable
employers and employees to take corrective action so that the
progression of hearing loss may be stopped before it becomes
handicapping. Moreover, a standardized definition of STS will ensure
that the protection afforded to exposed employees is uniform in
regard to follow-up procedures. * * *
OSHA reaffirms its position on the ideal criterion for STS which
was articulated in the January 16, 1981 promulgation (see 46 FR
4144). The criterion must be sensitive enough to identify meaningful
changes in hearing level so that follow-up procedures can be
implemented to prevent further deterioration of hearing but must not
be so sensitive as to pick up spurious shifts (sometimes referred to
as ``false positives''). In other words, the criterion selected must
be outside the range of audiometric error (48 FR 9760).
The Fourth Circuit rejected an employer's argument that a 10 dB
shift in hearing threshold is insignificant. In its decision upholding
OSHA's use of a 10 dB STS as an action level in the Hearing
Conservation Amendment, the court found that:
[t]he amendment is concerned with protecting workers before they
sustain an irreversible shift. Consequently, it was incumbent upon
the Agency to select a trigger level that would protect workers by
providing an early warning yet not to be so low as to be
insignificant or within the range of audiometric error. We find that
the Agency struck a reasonable balance between those concerns. * * *
Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1450
(1985)(en banc).
OSHA believes that many of the reasons stated in the 1983 preamble
make the STS an appropriate recording criterion for recordkeeping
purposes. For example, employers are familiar with the STS definition,
which is also sensitive enough to identify a non-minor change in
hearing. Use of the STS also reduces the confusion that would arise
were OSHA to require employers to maintain two baselines: one required
by the Occupational Noise standard and one required for recordkeeping
purposes.
Baseline Audiogram
In its proposal, OSHA also asked for comment on which baseline
should be used as the starting point in determining recordable hearing
loss. There was strong support in the record for using
[[Page 6010]]
the preemployment or original baseline for this purpose (see, e.g.,
Exs. 26; 15: 25, 50, 78, 108, 110, 111, 113, 146, 154, 163, 181, 188,
218, 233, 262, 281, 295, 308, 348, 354, 402, 405), although a few
commenters proposed using audiometric zero (see, e.g., Ex. 15: 395).
One commenter proposed that the reviewing professional should determine
the appropriate baseline on a case-by-case basis (Ex. 15: 175), and
another proposed that an audiologist should determine when a change in
baseline audiograms is warranted (Ex. 15: 203). Some commenters
supported adjusting the employee's baseline audiogram when a recordable
hearing loss case has been identified (see, e.g., Exs. 26; 15: 25, 108,
111, 146, 163, 290, 354, 405, 407).
OSHA agrees with those commenters who argued that the preemployment
or original baseline should be used as the benchmark from which to
determine recordable hearing loss. Using the preemployment or original
baseline automatically corrects for any hearing loss that may have
occurred before the worker was employed with his or her current
employer and will prevent the recording of cases of nonoccupational
hearing loss. This policy is also consistent with OSHA's Occupational
Noise standard and therefore increases the simplicity of the recording
system.
OSHA also agrees that an employee's baseline audiogram should be
adjusted if that employee experiences a recordable hearing loss.
Revising the baseline by substituting the revised audiogram for the
original audiogram after an STS has occurred will avoid a second or
third recording of the same STS. On the other hand, recording hearing
loss in a given worker only once would overlook the additional hearing
loss that may occur, either in the same or the other ear, and would not
be consistent with the definition of a ``new'' case in Section 1904.6
of this rule, which requires employers to evaluate any ``new'' case
that results from exposure in the workplace for recordability.
Subsequent STS findings, i.e., further 10-dB shifts in hearing level,
are more serious events than the first STS, because of the nonlinearity
of the dB rating system and the progressive severity of increasing
hearing loss. A second or third STS in a given worker is therefore also
treated under the recordkeeping system as a recordable illness on the
OSHA 300 Log. The final rule makes this clear by requiring the
employee's audiogram to be compared to the preemployment baseline
audiogram when the worker has not experienced a recordable hearing
loss, and to the audiogram reflecting the most recent recorded hearing
loss if the worker has experienced a prior recorded hearing loss case.
Correction for Aging
In its proposal, OSHA included provisions allowing the employer to
adjust the results of audiograms for presbycusis (age-related hearing
loss), and asked for comment on whether an age correction is
appropriate. The vast majority of commenters agreed that it was (see,
e.g., Exs. 26; 42; 15: 39, 45, 84, 113, 137, 163, 175, 201, 203, 262,
278, 281, 283, 331, 347, 348, 396, 405). As the Westinghouse Hanford
Company commented, ``[t]he adjusting for presbycusis is appropriate as
the deterioration of the hearing related to age is an important factor
in determining the amount of hearing loss related to workplace
hazards'' (Ex. 15: 108). Julia Royster, Ph.D. CC-A/SLP, agreed with
this view, stating that ``Age-related hearing loss is inevitable. There
are individual differences in the rate of age-related hearing change
and the amount of hearing loss eventually shown due to presbycusis.
However, most people will eventually develop age-related hearing
changes equivalent to one or more OSHA STSs. Therefore, presbycusis
corrections are necessary to avoid attributing age-related hearing
change to occupational causes'' (Ex. 26, Appendix C).
However, some commenters did not agree that the use of age
corrections was appropriate (see, e.g., Exs. 15: 50, 110, 188, 233,
407). For example, Occupational Audiologists (Ex. 15: 50) pointed out
that ``[w]hen the tables [in 29 CFR 1910.95] are applied they ignore
any hearing loss that may be present as a result of medical pathology
or noise exposure prior to the baseline hearing test,'' and therefore
the ``use of the presbycusis tables hides significant changes in
hearing thus delaying the STS required procedures of follow-up,
notification, fitting/re-fitting, educating and requiring the wearing
of hearing protection for some individuals.'' Similarly, John P. Barry
(Ex. 15: 110), commented:
At the 4000 Hz test frequency where occupational hearing loss
first occurs, application of the presbycusis correction may
significantly reduce the noted threshold shift relative to the
employee's baseline audiogram. However, the changes at 2000 and 3000
Hz often are equal to or less than the presbycusis corrections. When
these corrections are applied to actual audiometric data, they mask
the effects of occupational noise and hinder early detection of
noise-induced hearing loss. While hearing loss due to aging
(presbycusis) and hearing loss due to the non occupational
environment (sociocusis) may account for some of hearing loss noted
in serial audiograms, there is no scientifically valid way to
correct the data for non occupational hearing loss. * * * It is
inappropriate use of statistics to apply median values from one
population on a different population when no foundation has been
developed to justify such manipulation of data.
OSHA recognizes that using the correction for presbycusis when
interpreting audiogram results is controversial among experts in the
field of audiology and that NIOSH has developed a new criteria document
on occupational noise exposure (``Criteria for a Recommended Standard;
Occupational Noise Exposure, Revised Criteria, 1998; U.S. Department of
Health and Human Services, Centers for Disease Control and Prevention,
National Institute for Occupational Safety and Health; June 1998) which
at present does not recommend applying presbycusis correction values to
actual employee audiometric data. However, since the Occupational Noise
standard itself permits employers to adjust the interpretation of
audiograms for the effects of aging, it would be inconsistent and
administratively complex to prohibit this practice in the recordkeeping
rule. Accordingly, Sec. 1904.10(b)(3) allows the employer to adjust for
aging when determining the recordability of hearing loss. The
adjustment is made using Tables F-1 or F-2, as appropriate (table F-1
applies to men and F-2 applies to women), in Appendix F of 29 CFR
1910.95. However, use of the correction for aging is not mandatory,
just as it is not mandatory in the Noise standard itself.
Persistence of Hearing Loss
Yet another issue surrounding the recording of hearing loss
involves the timing of the recording of a case on the OSHA forms when
an audiogram has been performed on an employee. The issue is whether
the results of an audiogram should be recorded within the interval for
recording all cases, or whether the audiogram should be verified with a
retest before recording is required. The proposed rule would have
required the recording of hearing loss cases within 7 calendar days of
the first audiogram, but then would have permitted employers to remove,
or line out, a hearing loss case on the Log if a second audiogram taken
on that employee within 30 days failed to show that the STS was
persistent. Several commenters supported immediate recording with the
30 day retest provision (see, e.g., Exs. 15: 295, 350, 394, 407). The
Building and Construction Trades Department of the AFL-CIO (Ex. 15:
394) noted that if a
[[Page 6011]]
retest was not performed the case would never be recorded:
We support OSHA, however, on requiring cases to be recorded and
then lined out later if the loss does not persist. In construction,
where a worker may never get a follow-up test because they have
moved to a different worksite, the case needs to be recorded and
presumed work-related. For construction workers that is a very good
presumption to make. These changes should lead to more accurate
reporting of hearing loss among construction workers.
Other commenters, however, did not agree with OSHA's proposal and
believed the shifts should be confirmed before recording on the Log is
required (see, e.g., Exs. 26; 42; 15: 50, 84, 175, 181, 188, 201, 203,
331). Impact Health Services (Ex. 15: 175) expressed its opinion that
The new hearing loss criterion should require recording of only
confirmed work-related shifts in hearing. * * * There is no question
that it is in the best interest of the hearing conservation program
to identify shifts in hearing while they are still temporary so that
follow-up action can be taken immediately to prevent permanent
hearing loss. * * * However, requiring companies to record all
shifts (both temporary and persistent) within six (proposed seven)
days may have an unintended punitive effect. Companies are usually
hesitant to record any incidents on Form 200 (proposed Form 300),
even if lining-out the event at a later date is an option.
Therefore, disallowing the OSHA 30-day retest for recording purposes
may have a negative impact on programs which are designed to prevent
hearing loss. By requiring recording of all shifts within seven
days, companies may actually discontinue programs of conducting
annual testing during the work shift, due to a reluctance to
identify (and record) temporary threshold shift.
To address the problem identified by the Building and Construction
Trades Department of the AFL-CIO, Impact Health Services recommended
that ``[i]f a follow-up audiogram is not administered within 30 days of
determination, or if the follow-up audiogram confirms the shift, then
the shift is considered persistent and if determined to be work
related, must be recorded on Form 300'' (Ex. 15: 175). The American
Association of Occupational Health Nurses (Ex. 15: 181) noted that it
``would require less paperwork to record the hearing loss after
confirmation by a re-test in thirty days, rather that recording the
initial shift and then having to `line out' the entry if the re-test
was not indicative of any hearing loss.''
The Coalition to Preserve OSHA and NIOSH and Protect Workers'
Hearing (Exs. 26; 42) stated:
This urgency [as reflected in the proposal's provision requiring
recording within 7 days] in recording unconfirmed shifts does not
appear justified and creates additional burdens for the employer.
The coalition recommends the following more efficient and suitably
protective approach:
--Only confirmed (i.e., persistent) work-related STSs are to be
recorded on Form 300, unless a follow-up audiogram is not
administered.
--If a follow-up audiogram is not administered within 30 days of the
initial determination of STS, or if the follow-up audiogram confirms
the STS, then the shift is considered persistent, and if determined
to be work-related, must be recorded on Form 300. * * *
--If a follow-up audiogram given within 30 days of the initial
determination of the STS does not confirm the STS, nothing is to be
recorded on Form 300.
The Coalition also recommended that employers be allowed to remove,
or line-out, recorded hearing losses that are not confirmed by
subsequent retesting, or are found not to be work-related, within 15
months of the initial STS identification, at the discretion of the
reviewing professional. Such a provision would allow employers to
remove cases if the next annual audiogram showed an improvement in
hearing (Exs. 26; 42).
Several commenters discussed the length of time OSHA should allow
between the audiogram on which the STS was first detected and the
confirmatory retest. The International Dairy Food Association suggested
that allowing only a 30-day period ``may not be feasible in many
situations where mobile van testing is utilized. * * * Thirty days are
easily consumed during the compiling, mailing, interpreting, mailing,
evaluation process'' (Ex. 15: 203). The Association recommended instead
that ``OSHA increase the current requirement of 30 days to 45 days to
allow employers and employees to obtain a re-test following an annual
audiogram'' (Ex. 15: 403). For the same reasons, the Can Manufacturers
Institute recommended that retests be permitted within 90 days of the
original test, noting that ``[t]here is no magic regarding the current
30 day span'' (Ex. 15: 331). Industrial Health Inc. commented that
``there's no rush'' to retest and stated its preference for a time
lapse longer than 30 days ``[i]n order to allow temporary [hearing
loss] effects to subside'' (Ex. 15: 84). NIOSH (Ex. 15: 407) proposed
that a confirmatory retest be permitted at any time provided that the
retest was preceded by a 14-hour period of quiet.
After a review of the record on this point, OSHA has decided to
require that any retest the employer chooses to perform be conducted
within 30 days. Accordingly, in the final rule, at paragraph
1904.10(b)(4), employers are permitted, if they choose, to retest the
employee to confirm or disprove that an STS reflected on the first
audiogram was attributable to a cold or some other extraneous factor
and was not persistent. If the employer elects to retest, the employer
need not record the case until the retest is completed. If the retest
confirms the hearing loss results, the case must be recorded within 7
calendar days. If the retest refutes the original test, the case is not
recordable, and the employer does not have to take further action for
OSHA recordkeeping purposes. The 30 day limit in the final
recordkeeping rule is consistent with the 30 day retest provision of
Sec. 1910.95(g)(5)(ii), which allows the employer to obtain a retest
within 30 days and consider the results of the retest as the annual
audiogram if the STS recorded on the first test is determined not to
persist.
OSHA believes that the 30 day retest option allows the employer to
exclude false positive results and temporary threshold shifts from the
data while ensuring the timely and appropriate recording of true
positive results. Adding language to the final recordkeeping rule to
specify different procedures, depending on whether the employer chooses
to conduct a re-test within 30 days, adds some complexity to the final
rule, but OSHA finds that this added complexity is appropriate because
it will reduce burden for some employers and improve the accuracy of
the hearing loss data.
Work-Relationship
One of the greatest sources of controversy in the record concerning
OSHA's proposed criterion for recording hearing loss relates to the
presumption of work-relationship in cases where an employee is exposed
to an 8-hour time-weighted average sound level of noise equaling or
exceeding 85 dB(A) (61 FR 4064). One commenter supported the
recordkeeping proposal's approach on this matter. NIOSH (Ex. 15: 407)
recommended that work-relationship be presumed ``if an employee is
exposed to an 8-hour time-weighted sound level of noise equaling or
exceeding 85 dB(A) or to peak sound levels equaling or exceeding 115
dB(A) regardless of brevity or infrequency.'' Several commenters
advocated presuming work-relatedness if the employee experienced
occupational exposures to 85 dB unless medical evidence showed that the
hearing loss was not related to work (see, e.g., Exs. 15: 39, 50, 146,
171, 188). For example, BF Goodrich (Ex. 15: 146) asked that ``[O]SHA
give employers the opportunity to refute the work
[[Page 6012]]
relationship for employees found to have other than noise-induced
hearing loss. If the employee is examined by an otolaryngologist or
other qualified health professional and found to have a medical
condition that causes hearing loss, the case should not be
recordable.''
Several commenters objected to the proposed presumption of work-
relationship (see, e.g., Exs.15: 201, 263, 283, 289, 305, 318, 334,
390). The National Association of Manufacturers commented that ``There
is no justification for presuming that hearing loss is work-related
simply because an employee is exposed to an 8-hour time weighted
average sound level of noise of 85 dB(A) or higher, even if it were a
daily exposure and particularly where it could be as infrequent as once
per year'' (Ex. 15: 305). Many commenters agreed with Mississippi
Power, which wrote ``[t]he presumption of work relationship does not
consider other potentially significant noise exposures such as noisy
hobbies, or other noisy activities not associated with occupational
noise exposures'' (Ex. 15: 263). Deere & Company argued that ``OSHA is
not taking into account the noise-reducing effect of an effective
hearing conservation program nor does it take into account the often
significant noise exposure that many employees have away from the
workplace '' (Ex. 15: 283).
There are numerous suggestions in the record on how best to deal
with the presumption of work-relationship. Impact Health Services Inc.,
and others suggested that a case be considered work-related ``when in
the judgement of the supervising audiologist or physician, the shift is
due in full or in part to excessive noise exposure in the workplace''
(Ex. 15: 175). Akzo Nobel Chemicals proposed that work-relationship be
presumed when ``there is no other reasonable non-work related
explanation'' (Ex. 37), and the National Grain and Feed Association
suggested ``that if an employer has an active and an enforceable
hearing conservation program in place, the presumption should be that
any hearing loss experienced by an employee is not work related unless
it can be shown to be otherwise'' (Ex. 15: 119). A number of commenters
agreed with the comment of the Edison Electric Group that ``OSHA should
also establish a criteria of exposure to noise at or above the 85 dB(a)
TWA action level of 30 or more days per year before the case is
recordable'' because ``[a] single day's exposure at or below the PEL
will not cause hearing loss'' (Ex. 15: 401), and NIOSH proposed that
work-relationship be presumed ``if an employee is exposed to an 8-hour
time-weighted sound level of noise equaling or exceeding 85 dB(A) or to
peak sound levels equaling or exceeding 115 dB(A) regardless of brevity
or infrequency'' (Ex. 15: 407).
In the final rule, OSHA has continued to rely on a presumption of
work-relationship for workers who are exposed to noise at or above the
action levels specified in the Occupational Noise standard (29 CFR
1910.95). In line with the overall concept of work relationship adopted
in this final rule for all conditions, an injury or illness is
considered work related if it occurs in the work environment. For
workers who are exposed to the noise levels that require medical
surveillance under Sec. 1910.95 (an 8-hour time-weighted average of 85
dB(A) or greater, or a total noise dose of 50 percent), it is highly
likely that workplace noise is the cause of or, at a minimum, has
contributed to the observed STS. It is not necessary for the workplace
to be the sole cause, or even the predominant cause, of the hearing
loss in order for it to be work-related. Because the final
recordkeeping rule relies upon the coverage of the Occupational Noise
standard, it is also not necessary for OSHA to include a minimum time
of exposure provision. The Occupational Noise standard does not require
a baseline audiogram to be taken for up to six months after the
employee is first exposed to noise in the workplace, and the next
annual audiogram would not be taken until a year after that. For any
worker to have an applicable change in audiogram results under the
Occupational Noise standard, the worker would have been exposed to
levels of noise exceeding 85 dB(A) for at least a year, and possibly
even for 18 months.
In addition, the provisions allowing for review by a physician or
other licensed health care professional allow for the exclusion of
hearing loss cases that are not caused by noise exposure, such as off
the job traumatic injury to the ear, infections, and the like. OSHA
notes that this presumption is consistent with a similar presumption in
OSHA's Occupational Noise standard (in both cases, an employer is
permitted to rebut this presumption if he or she suspects that the
hearing loss shown on an employer's audiogram in fact has a medical
etiology and this is confirmed by a physician or other licensed health
care professional).
Miscellaneous Issues
Other issues addressed by commenters to the rulemaking record on
OSHA's proposed criterion for recording hearing loss included whether
OSHA should treat hearing levels for each ear separately for recording
purposes. Impact Health Services, Inc. (Ex. 15: 175) recommended that
proposed Appendix B specify that shifts in hearing be calculated
separately for each ear:
Because an individual's left and right ears may be affected
differently by noise or other occupational injury, it is important
that Appendix B specifies that shifts in hearing are to be
calculated separately for each ear.
Arguing along similar lines, the Chevron Companies raised the issue
of revising baselines for both ears when a standard threshold shift is
recorded in only one ear. They commented:
The proposed rule discusses an average shift in one or both ears
and establishing a new or revised baseline for future tests to be
evaluated against. In discussing the new or revised baseline however
the proposed rule does not give guidance on revision when only one
ear meets the revision criteria (15 dB or 25 dB or whatever the
final rule states). Are the baselines for both ears revised or only
the ear meeting the criteria? This issue should be clearly addressed
in the final rule. Usually noise induced hearing loss is a
symmetrical event so it would be reasonable to revise the baselines
for both ears. If the baselines are to be revised individually one
could anticipate more hearing losses being recorded than if they are
revised in unison. Therefore, for Hearing Conservation Program
statistics to be meaningful and comparable, baseline revision must
be handled the same across industries (Ex. 15: 343).
Shifts in hearing must be calculated separately for each ear, in
accordance with the requirements of Sec. 1910.95. However, if a single
audiogram reflects a loss of hearing in both ears, only one hearing
loss case must be entered into the records. The issue of revising
baseline audiograms to evaluate the extent of future hearing loss
pertains to a hearing loss case that has been entered on the Log. If a
single-ear STS loss has been recorded on the Log, then the baseline
audiogram should be adjusted for that ear, and that ear only. If an STS
affecting both ears has been recorded on the Log, then the baseline
audiogram may be revised and applied to both ears. This means that
there should be no cases where the baseline audiogram has been adjusted
and the case has not been recorded on the Log.
The Medical Educational Development Institute (Ex. 15: 25) made
several recommendations for changing OSHA's noise standard, 29 CFR
1910.95, to add specific steps to be taken when a 10 dB STS occurs,
such as employee interviews, reevaluations with medical personnel,
physician referral, labeling of revised baseline audiograms, and
reassignment to quieter work for workers with a second or subsequent
STS. These are interesting
[[Page 6013]]
recommendations, but they address issues that are beyond the scope of
this rulemaking. This rulemaking is concerned only with the Part 1904
requirements for recording occupational hearing loss on the OSHA 300
Log, and does not affect any provision of the OSHA Occupational Noise
standard.
Phillips Petroleum (Ex. 15: 354) raised another miscellaneous issue
when it suggested that OSHA phase in the recording of audiometric tests
if a more protective definition of hearing loss was adopted in the
final rule:
[i]f OSHA insists on the recording of hearing loss at the 15 dB,
it would artificially inflate the number of recordable hearing-loss
cases and have a similar effect as that of the severity issue. We
recommend that if the recordability bar is lowered from 25 dB], OSHA
allow a transition period where a 15 dB shift is listed on the log,
but is not counted in the recordable total. This should continue for
a transition period of three years to allow facilities to identify
all employees affected. Any employees who were not identified during
the transition period would become recordables with a 15 dB hearing
loss after the transition period.
OSHA does not believe that a transition period is needed for the
recording of occupational hearing loss or any other type of injury or
illness included in the records. Adding such a provision would add
unnecessary complexity to the rule, and would also create an additional
change in the data that would make it difficult to compare data between
the two years at the end of the transition. OSHA finds that it is
better to implement the recordkeeping changes as a single event and
reduce the impacts on the data in future years.
As noted previously, OSHA is not making any changes to its noise
standards in this Part 1904 rulemaking, and thus no additional
protections are being provided in this final rule.
Section 1904.11 Additional Recording Criteria for Work-Related
Tuberculosis Cases
Section 1904.11 of the final rule being published today addresses
the recording of tuberculosis (TB) infections that may occur to workers
occupationally exposed to TB. TB is a major health concern, and nearly
one-third of the world's population may be infected with the TB
bacterium at the present time. There are two general stages of TB,
tuberculosis infection and active tuberculosis disease. Individuals
with tuberculosis infection and no active disease are not infectious;
tuberculosis infections are asymptomatic and are only detected by a
positive response to a tuberculin skin test. Workers in many settings
are at risk of contracting TB infection from their clients or patients,
and some workers are at greatly increased risk, such as workers exposed
to TB patients in health care settings. Outbreaks have also occurred in
a variety of workplaces, including hospitals, prisons, homeless
shelters, nursing homes, and manufacturing facilities (62 FR 54159).
The text of Sec. 1904.11 of the final rule states:
(a) Basic requirement. If any of your employees has been
occupationally exposed to anyone with a known case of active
tuberculosis (TB), and that employee subsequently develops a
tuberculosis infection, as evidenced by a positive skin test or
diagnosis by a physician or other licensed health care professional,
you must record the case on the OSHA 300 Log by checking the
``respiratory condition'' column.
(b) Implementation.
(1) Do I have to record, on the Log, a positive TB skin test result
obtained at a pre-employment physical?
No, because the employee was not occupationally exposed to a known
case of active tuberculosis in your workplace.
(2) May I line-out or erase a recorded TB case if I obtain evidence
that the case was not caused by occupational exposure?
Yes. you may line-out or erase the case from the Log under the
following circumstances:
(i) The worker is living in a household with a person who has been
diagnosed with active TB;
(ii) The Public Health Department has identified the worker as a
contact of an individual with a case of active TB unrelated to the
workplace; or
(iii) A medical investigation shows that the employee's infection
was caused by exposure to TB away from work, or proves that the case
was not related to the workplace TB exposure.
The Proposal
The proposed rule included criteria for the recording of TB cases
in proposed Appendix B. In that appendix, OSHA proposed to require the
recording of cases of TB infection or disease at the time an employee
first had a positive tuberculin skin test, except in those cases where
the skin test result occurred before the employee was assigned to work
with patients or clients. The proposal stated that cases of TB disease
or TB infection would be presumed to be work-related if they occurred
in an employee employed in one of the following industries:
correctional facilities, health care facilities, homeless shelters,
long-term care facilities for the elderly, and drug treatment centers.
In other words, the proposal contained a ``special industries''
presumption for those industries known to have higher rates of
occupational TB transmission. OSHA proposed to allow employers to rebut
the presumption of work-relatedness if they could provide evidence that
the employee had been exposed to active TB outside the work
environment. Examples of such evidence would have included (1) the
employee was living in a household with a person who had been diagnosed
with active TB, or (2) the Public Health Department had identified the
employee as a contact of an individual with a case of active TB. For
employees working in industries other than the ``special'' industries,
OSHA proposed that a positive skin test result be considered work-
related when the employee had been exposed to a person within the work
environment who was known to have TB disease. Under the proposal, an
employee exhibiting a positive skin test and working in industries
other than those listed would otherwise not be presumed to have
acquired the infection in the work environment (61 FR 4041). As noted
in the proposal, these recording criteria for TB were consistent with
those published previously in OSHA directives to the field (February
26, 1993 memo to Regional Administrators). The final rule permits
employers to rebut the presumption of work-relatedness in cases of TB
infection among employees but does not rely on the ``special
industries'' approach taken by OSHA in the proposal, for reasons
explained below.
Positive Skin Tests
Several comments in the record supported OSHA's proposed recording
criteria for occupational TB cases (see, e.g., Exs. 15: 72, 133, 198).
A number of commenters, however, questioned whether a positive
tuberculin skin test reaction should be considered a recordable
occupational illness (Ex. 15: 146, 188, 200). For example, BF Goodrich
wrote:
We disagree with a positive skin test reaction as the criterion
for recording a TB case. Such tests are only indicative of a past
exposure, not necessarily an illness or a condition. OSHA should
allow diagnosing medical professionals to use their professional
judgement to confirm active TB cases and restrict recordability to
those cases (Ex. 15: 146).
Kaiser Permanente (Ex. 15: 200) argued:
The presumption that an initial positive skin test result or
diagnosed tuberculosis in a health care employee is occupationally
based is not warranted. While there have been outbreaks in health
care facilities
[[Page 6014]]
documented in the literature, and while skin test conversion does
occur in health care workers and may in given cases be
occupationally related, the Kaiser Permanente experience has not
been characterized by outbreaks or significant rates of skin test
conversion. Diagnosed cases of tuberculosis among Kaiser Permanente
health care workers are extremely rare.
OSHA views the situation differently. A positive tuberculin skin
test indicates that the employee has been exposed to Mycobacterium
tuberculosis and has been infected with the bacterium. Although the
worker may or may not have active tuberculosis disease, the worker has
become infected. Otherwise, his or her body would not have formed
antibodies against these pathogens. (OSHA is aware that, in rare
situations, a positive skin test result may indicate a prior
inoculation against TB rather than an infection.)
OSHA believes that TB infection is a significant change in the
health status of an individual, and, if occupational in origin, is
precisely the type of illness Congress envisioned including in the OSHA
injury and illness statistics. Contracting a TB infection from a
patient, client, detainee, or other person in the workplace would cause
serious concern, in OSHA's view, in any reasonable person. Once a
worker has contracted the TB infection, he or she will harbor the
infection for life. At some time in the future, the infection can
progress to become active disease, with pulmonary infiltration,
cavitation, and fibrosis, and may lead to permanent lung damage and
death. An employee harboring TB infection is particularly likely to
develop the full-blown disease if he or she must undergo chemotherapy,
contracts another disease, or experiences poor health. According to
OSHA's proposed TB rule (62 FR 54159), approximately 10% of all TB
infections progress at some point to active disease, and it is not
possible to predict in advance which individuals will do so.
OSHA also believes that it is important to require employers to
record TB cases when an employee experiences a positive skin test
because doing so will create more timely and complete statistics. If,
for example, OSHA were to require recording only when the worker
develops active TB, many cases that were in fact occupational in origin
would go unrecorded. In such cases, if the worker had retired or moved
on to other employment, the employer would generally not know that the
employee had contracted active TB disease, and the case would never be
included in the Nation's occupational injury and illness statistics and
important information would be lost. Thus, requiring the recording of a
case at the infection stage will create more accurate, complete and
useful statistics, one of the major goals of this rulemaking.
Several commenters suggested that TB should not be recorded at all
because, in their view, acquiring TB infection is not within the
control of the employer and is not amenable to control by an employer's
safety and health program (see, e.g., Exs. 15: 316, 348, 414, 423). For
example, Raytheon Engineers & Constructors (Ex. 15: 414) argued that TB
infection and disease should not be recorded because it ``is not due to
a condition of the work environment under the control of the
employer.'' Dupont argued along similar lines:
It does not make sense to record tuberculosis cases where an
infectious worker infects co-workers. That has nothing to do with
job activity or with the workplace except as an accidental exposure.
The same type of thinking could apply to flu symptoms, ``colds'',
conjunctivitis, etc., where lack of personal hygiene or a strong
``germ'' migrated through the workplace. If the exposure is not part
of the job activity, none of the cases mentioned, including
tuberculosis, should be recorded (Ex. 15: 348).
As discussed elsewhere in this document (see the Legal Authority
section above), Congress did not intend OSHA's recordkeeping system
only to capture conditions over which the employer has complete control
or the ability to prevent the condition. The Act thus supports a
presumption of work-relatedness for illnesses resulting from exposure
in the workplace, and the OSHA recordkeeping system has always
reflected this position (although a few specific exceptions to that
presumption are permitted, including an exception for common colds and
flu). In accordance with that presumption, when an employee is exposed
to an infectious agent in the workplace, such as TB, chicken pox, etc.,
either by a co-worker, client, patient, or any other person, and the
employee becomes ill, workplace conditions have either caused or
contributed to the illness and it is therefore work-related. Since, as
discussed above, TB infection is clearly a serious condition, it is
non-minor and must be recorded.
Employee-to-Employee Transmission
Two commenters argued that transmission from employee to employee
should not be considered work-related (Exs. 15: 39, 348). The RR
Donnelley & Sons Company (Ex. 15: 39) pointed out that an employer
``may never know that a fellow employee has tuberculosis. To record
personal transmission from one employee to another goes beyond the
scope of work relatedness.'' Other commenters agreed with OSHA that, at
least under certain circumstances, employee-to-employee transmission
should be considered work-related (see, e.g., Exs. 15: 78, 218, 361,
398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated that
``[i]f a worker with infectious tuberculosis disease infected their co-
worker, the co-workers' infection/disease would be recordable.''
Again, as discussed above, OSHA believes, under the positional
theory of causality, that non-minor illnesses resulting from an
exposure in the work environment are work-related and therefore
recordable unless a specific exemption to the presumption applies.
Infection from exposure to another employee at work is no different, in
terms of the geographic presumption, from infection resulting from
exposure to a client, patient, or any other person who is present in
the workplace. The transmission of TB infection from one employee to
another person at work, including a co-worker, clearly is non-minor and
is squarely within the presumption.
Special Industry Presumptions
Many of the commenters supported OSHA's proposed approach of
assuming work-relatedness for TB cases if the infection occurred in
workers employed in certain special industries (see, e.g., Exs. 24, 15:
78, 345, 376, 407). Other commenters suggested that OSHA abandon the
proposed special industry presumption (see, e.g., Exs. 15: 197, 200,
225, 259, 279, 302, 341, 431, 436). In the proposed rule, OSHA proposed
different work-relatedness criteria for different work environments,
i.e., in industries in which published reports of TB outbreaks were
available from the Centers for Disease Control and Prevention (CDC), a
special presumption would prevail, while in industries in which
occupational transmission had not been documented it would not.
Kaiser Permanente commented that the CDC ``Guidelines for
Preventing the Transmission of Mycobacterium Tuberculosis in Health-
Care Facilities establish facility risk levels for occupational
transmission of tuberculosis based upon assessment of a range of
relevant criteria such as job duties, incidence of TB patients treated,
and community TB rates'' and urged OSHA to follow these in the final
rule (Ex. 15: 200).
Two commenters objected to the inclusion of nursing homes in the
list of
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