[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
[[Page 5967]]
employee has injured his or her back lifting a heavy object, the injury
resulted in medical treatment, and the case was recorded as a case
without restricted work or days away. If the injury does not heal and
the employer subsequently decides to assign the worker to restricted
work activity, the employer is required by the final rule to change the
case classification and to track the number of days of restricted work.
If the case is a previous work-related injury that did not meet the
recording criteria and thus was not recorded, future developments in
the case may require it to be recorded. For example, an employee may
suffer an ankle sprain tripping on a step. The employee is sent to a
health care professional, who does not recommend medical treatment or
restrictions, so the case is not recorded at that time. If the injury
does not heal, however, and a subsequent visit to a physician results
in medical treatment, the case must then be recorded.
OSHA and employers and employees need data on recurring cases
because recurrence is an important indicator of severity over the long
term. Just as the number of days away is a useful indicator of health
and safety risk at a particular establishment, so is the total number
of injury and illness events and of exposures resulting in health
consequences that occur in an establishment or industry. Further, any
realistic assessment of occupational safety and health conditions
should reflect the fact that some but not all injuries and illnesses
have long-term consequences. In other words, a safety and health
analysis should give less weight to an injury or illness that has a
clear and relatively quick recovery without impairment of any kind and
an injury or illness that is chronic in nature or one that involves
recurring episodes that are retriggered by workplace events or
exposures.
Ignoring the fact that an occupational injury or illness is a
recurrence occasioned by an event or exposure in the workplace would
result in an underestimate of the true extent of occupational injury
and illness and deprive employers, employees, and safety and health
professionals of essential information of use in illness prevention.
The other extreme, requiring employers to record on-going signs or
symptoms repeatedly, even in the absence of an event or exposure in the
workplace, would result in overstating the extent of illness. In terms
of the recordkeeping system, deciding how most appropriately to handle
new cases requires a balanced approach that minimizes both
overrecording and underrecording. OSHA has dealt with this problem in
the final rule by carefully defining the circumstances under which a
chronic and previously recorded injury or illness must be considered
closed and defining the circumstances under which a recurrence is to be
considered a new case and then evaluated to determine whether it meets
one or more of the recordability criteria.
OSHA's proposal to apply a single criterion to the determination of
the recordability of all recurrences of previously recorded injuries
and illnesses received support from several commenters (see, e.g., Exs.
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria
for determining whether any injury or illness, including a
musculoskeletal disorder, is to be treated as a new case or as the
continuation of an ``old'' injury or illness. First, if the employee
has never had a recorded injury or illness of the same type and
affecting the same part of the body, the case is automatically
considered a new case and must be evaluated for recordability. This
provision will handle the vast majority of injury and illness cases,
which are new cases rather than recurrences or case continuations.
Second, if the employee has previously had a recorded injury or illness
of the same type and affecting the same body part, but the employee has
completely recovered from the previous injury or illness, and a new
workplace event or exposure causes the injury or illness (or its signs
or symptoms) to reappear, the case is a recurrence that the employer
must evaluate for recordability.
The implementation section of Sec. 1904.6 describes these
requirements and includes explanations applying to two special
circumstances. In the first case, paragraph 1904.6(b)(1) the employee
has experienced a chronic injury or illness of a type that will
progress regardless of further workplace exposure. Cases to which this
provision applies are serious, chronic illness conditions such as
occupational cancer, asbestosis, silicosis, chronic beryllium disease,
etc. These occupational conditions generally continue to progress even
though the worker is removed from further exposure. These conditions
may change over time and be associated with recurrences of symptoms, or
remissions, but the signs (e.g., positive chest roentgenogram, positive
blood test) generally continue to be present throughout the course of
the disease.
The second kind of case, addressed in paragraph 1904.6(b)(b)(2),
requires employers to record chronic illness cases that recur as a
result of exposures in the workplace. These conditions might include
episodes of occupational asthma, reactive airways dysfunction syndrome
(RADS), or contact allergic dermatitis, for example.
Paragraph 1904.6(b)(3) recognizes the role of physicians and other
licensed health care professionals that the employer may choose to rely
on when tracking a ``new case'' or making a continuation of an old case
determination. If a physician or other licensed health care
professional determines that an injury or illness has been resolved,
the employer must consider the case to be resolved and record as a new
case any episode that causes the signs and symptoms to recur as a
result of exposure in the workplace. On the other hand, if the HCP
consulted by the employer determines that the case is a chronic illness
of the type addressed by paragraph 1904.6(b)(1), the employer would not
record the case again. In either case, the employer would evaluate it
for work-relatedness and then determine whether the original entry
requires updating or the case meets the recording criteria. Paragraph
(b)(3) also recognizes that the employer may ask for input from more
than one HCP, or the employer and employee may each do so, and in such
cases, the rule requires the employer to rely on the one judged by the
employer to be most authoritative.
Adding a Recurrence Column to the OSHA 300 Log
In the proposal, OSHA asked commenters whether the Log should
include a column with a check-box that could be marked if a case was a
recurrence of a pre-existing condition (61 FR 4037). Some commenters
supported the proposed approach (see, e.g., Exs. 15: 27, 39, 61, 65,
89, 154, 186, 214, 235, 277, 299, 305, 332, 336). For example, the
National Association of Manufacturers (NAM) suggested that, in lieu of
adopting a 45-day time limit, OSHA should add a column to the Log: ``If
the Agency believes there is a need to track the number of recurring
cases, we believe the better approach would be to add a column to the
log which would permit the original entry for each injury or illness to
be updated in the event of a recurrence'' (Ex. 15: 305). The American
Association of Homes and Services for the Aging (AAHSA) agreed:
[t]here should be a column on the injury and illness log for
employers to check for reoccurring injuries. This addition would
help the employer to identify possible patterns or problems
associated with a specific job and find solutions. Recommendation:
Add a column to the injury and illness log allowing the employer
[[Page 5968]]
to check when an employee is having a repetitive injury or illness
(Ex. 15: 214).
Other commenters did not support the proposal's approach to
tracking recurrences (see, e.g., Exs. 15: 70, 78, 136, 137, 141, 151,
152, 179, 180, 194, 224, 266, 278). The comments of Kathy Lehrman, RN,
Occupational Health Nurse (Ex. 15: 136) are representative of these
comments:
The addition of a column to record recurrent conditions would
not reduce the stigma and would lead to increased health care
provider visits to avoid having an ongoing case labeled as a new
case. * * * I do not see the value of including a new category of
case designation. This runs counter to the simplification objective.
After a review of the comments on this issue, OSHA has decided not
to include such a check-box on the Log. The final rule adds several
columns to the OSHA 300 form to collect data on the number of
restricted workdays and on various types of occupational injuries and
illnesses. The addition of these columns, and the decision to provide
more space on the Log to add information on the case, has used up the
available space on the form. Requiring employers to record recurrences
would also be burdensome and make the rule more complex. Further, OSHA
did not propose such a requirement, and this issue raises questions not
adequately aired in the record. For example, if an employee has
recurring episodes of low back pain, should the employer be required to
record each day the employee experiences such pain as a recurring
injury? OSHA is also unsure how recurrence data should be captured and
used in the Nation's injury and illness statistics. For example, would
a separate data set on recurrences, similar to data on injuries and
illnesses, be produced by the BLS?
OSHA has therefore decided that it is not appropriate to add a
column to the Log to capture data on recurring injuries and illnesses.
However, OSHA recognizes that data on injury and illness recurrence may
be useful to employers and employees at individual worksites and
encourages employers who wish to collect this additional information to
do so; however, the final rule does not require employers to provide
recurrence data on the Log.
Section 1904.7 General Recording Criteria
Section 1904.7 contains the general recording criteria for
recording work-related injuries and illnesses. This section describes
the recording of cases that meet one or more of the following six
criteria: death, days away from work, restricted work or transfer to
another job, medical treatment beyond first aid, loss of consciousness,
or diagnosis as a significant injury or illness by a physician or other
licensed health care professional.
Paragraph 1904.7(a)
Paragraph 1904.7(a) describes the basic requirement for recording
an injury or illness in the OSHA recordkeeping system. It states that
employers must record any work-related injury or illness that meets one
or more of the final rule's general recording criteria. There are six
such criteria: death, days away from work, days on restricted work or
on job transfer, medical treatment beyond first aid, loss of
consciousness, or diagnosis by a physician or other licensed heath care
professional as a significant injury or illness. Although most cases
are recorded because they meet one of these criteria, some cases may
meet more than one criterion as the case continues. For example, an
injured worker may initially be sent home to recuperate (making the
case recordable as a ``days away'' case) and then subsequently return
to work on a restricted (``light duty'') basis (meeting a second
criterion, that for restricted work). (see the discussion in Section
1904.29 for information on how to record such cases.)
Paragraph 1904.7(b)
Paragraph 1904.7(b) tells employers how to record cases meeting
each of the six general recording criteria and states how each case is
to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a
simple decision table listing the six general recording criteria and
the paragraph number of each in the final rule. It is included to aid
employers and recordkeepers in recording these cases.
1904.7(b)(2) Death
Paragraph 1904.7(b)(2) requires the employer to record an injury or
illness that results in death by entering a check mark on the OSHA 300
Log in the space for fatal cases. This paragraph also directs employers
to report work-related fatalities to OSHA within 8 hours and cross
references the fatality and catastrophe reporting requirements in
Sec. 1904.39 of the final rule, Reporting fatalities and multiple
hospitalizations to OSHA.
Paragraph 1904.7(b)(2) implements the OSH Act's requirements to
record all cases resulting in work-related deaths. There were no
comments opposing the recording of cases resulting in death. However,
there were several comments questioning the determination of work-
relatedness for certain fatality cases and the appropriateness of
reporting certain kinds of fatalities to OSHA. These comments are
addressed in the sections of this preamble devoted to work-relationship
and fatality reporting (sections 1904.5 and 1904.39, respectively).
Paragraph 1904.7(b)(3) Days Away From Work
Paragraph 1904.7(b)(3) contains the requirements for recording
work-related injuries and illnesses that result in days away from work
and for counting the total number of days away associated with a given
case. Paragraph 1904.7(b)(3) requires the employer to record an injury
or illness that involves one or more days away from work by placing a
check mark on the OSHA 300 Log in the space reserved for day(s) away
cases and entering the number of calendar days away from work in the
column reserved for that purpose. This paragraph also states that, if
the employee is away from work for an extended time, the employer must
update the day count when the actual number of days away becomes known.
This requirement continues the day counting requirements of the former
rule and revises the days away requirements in response to comments in
the record.
Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic
requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not
to count the day of the injury or illness as a day away, but is to
begin counting days away on the following day. Thus, even though an
injury or illness may result in some loss of time on the day of the
injurious event or exposure because, for example, the employee seeks
treatment or is sent home, the case is not considered a days-away-from-
work case unless the employee does not work on at least one subsequent
day because of the injury or illness. The employer is to begin counting
days away on the day following the injury or onset of illness. This
policy is a continuation of OSHA's practice under the former rule,
which also excluded the day of injury or onset of illness from the day
counts.
Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to
record days-away cases when a physician or other licensed health care
professional (HCP) recommends that the injured or ill worker stay at
home or that he or she return to work but the employee chooses not to
do so. As these paragraphs make clear, OSHA requires employers to
follow the physician's or HCP's recommendation when recording the case.
Further, whether the employee works or not is in the control of the
[[Page 5969]]
employer, not the employee. That is, if an HCP recommends that the
employee remain away from work for one or more days, the employer is
required to record the injury or illness as a case involving days away
from work and to keep track of the days; the employee's wishes in this
case are not relevant, since it is the employer who controls the
conditions of work. Similarly, if the HCP tells the employee that he or
she can return to work, the employer is required by the rule to stop
counting the days away from work, even if the employee chooses not to
return to work. These policies are a continuation of OSHA's previous
policy of requiring employees to follow the recommendations of health
care professionals when recording cases in the OSHA system. OSHA is
aware that there may be situations where the employer obtains an
opinion from a physician or other health care professional and a
subsequent HCP's opinion differs from the first. (The subsequent
opinion could be that of an HCP retained by the employer or the
employee.) In this case, the employer is the ultimate recordkeeping
decision-maker and must resolve the differences in opinion; he or she
may turn to a third HCP for this purpose, or may make the recordability
decision himself or herself.
Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account
for weekends, holidays, and other days during which the employee was
unable to work because of a work-related injury or illness during a
period in which the employee was not scheduled to work. The rule
requires the employer to count the number of calendar days the employee
was unable to work because of the work-related injury or illness,
regardless of whether or not the employee would have been scheduled to
work on those calendar days. This provision will ensure that a measure
of the length of disability is available, regardless of the employee's
work schedule. This requirement is a change from the former policy,
which focused on scheduled workdays missed due to injury or illness and
excluded from the days away count any normal days off, holidays, and
other days the employee would not have worked.
Paragraph 1904.7(b)(3)(v) tells the employer how to count days away
for a case where the employee is injured or becomes ill on the last day
of work before some scheduled time off, such as on the Friday before
the weekend or the day before a scheduled vacation, and returns to work
on the next day that he or she was scheduled to work. In this
situation, the employer must decide if the worker would have been able
to work on the days when he or she was not at work. In other words, the
employer is not required to count as days away any of the days on which
the employee would have been able to work but did not because the
facility was closed, the employee was not scheduled to work, or for
other reasons unrelated to the injury or illness. However, if the
employer determines that the employee's injury or illness would have
kept the employee from being able to work for part or all of time the
employee was away, those days must be counted toward the days away
total.
Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the
days away from work when the injury or illness has resulted in 180
calendar days away from work. When the injury or illness results in an
absence of more than 180 days, the employer may enter 180 (or 180+) on
the Log. This is a new provision of the final rule; it is included
because OSHA believes that the ``180'' notation indicates a case of
exceptional severity and that counting days away beyond that point
would provide little if any additional information.
Paragraph 1904.7(b)(3)(vii) specifies that employers whose
employees are away from work because of a work-related injury or
illness and who then decide to leave the company's employ or to retire
must determine whether the employee is leaving or retiring because of
the injury or illness and record the case accordingly. If the
employee's decision to leave or retire is a result of the injury or
illness, this paragraph requires the employer to estimate and record
the number of calendar days away or on restricted work/job transfer the
worker would have experienced if he or she had remained on the
employer's payroll. This provision also states that, if the employee's
decision was unrelated to the injury or illness, the employer is not
required to continue to count and record days away or on restricted
work/job transfer.
Paragraph 1904.(b)(3)(viii) directs employers how to handle a case
that carries over from one year to the next. Some cases occur in one
calendar year and then result in days away from work in the next year.
For example, a worker may be injured on December 20th and be away from
work until January 10th. The final rule directs the employer only to
record this type of case once, in the year that it occurred. If the
employee is still away from work when the annual summary is prepared
(before February 1), the employer must either count the number of days
the employee was away or estimate the total days away that are expected
to occur, use this estimate to calculate the total days away during the
year for the annual summary, and then update the Log entry later when
the actual number of days is known or the case reaches the 180-day cap
allowed in Sec. 1904.7(b)(3)(v).
Comments on the Recording of Days Away From Work
OSHA received a large number of comments on how days away should be
counted. The issues addressed by commenters included (1) whether to
count scheduled workdays or calendar days, (2) whether the day counts
should be ``capped,'' and, if so, at what level, (3) how to count days
away or restricted when employees are terminated or become permanently
disabled, and (4) how to handle cases that continue to have days away/
restricted from one year to the next.
Scheduled or calendar work days. OSHA proposed to count scheduled
workdays, consistent with its long-standing policy of excluding normal
days off such as weekends, holidays, days the facility is closed, and
prescheduled vacation days (61 FR 4033). The proposal asked the public
for input on which counting method--calendar days or scheduled work
days--would be better, stating that ``OSHA is considering a
modification to the concept of days away from work to include days the
employee would normally not have worked (e.g. weekends, holidays,
etc.). OSHA believes this change to calendar days would greatly
simplify the method of counting days away by eliminating the need to
keep track of, and subtract out, scheduled days off from the total time
between the employee's first day away and the time the employee was
able to return to full duty'' (61 FR 4033). The proposal also discussed
the potential benefits and pitfalls of counting calendar days:
Another potential benefit of changing to calendar days would be
that the day count would more accurately reflect the severity of the
injury or illness. The day count would capture all the days the
employee would not have been able to work at full capacity
regardless of work schedules. For example, if an employee, who
normally does not work weekends, is injured on a Friday and is
unable to work until the following Tuesday, the ``days away from
work'' would be three (3), using calendar days, rather than one (1)
day, using work days. If the same injury occurred on a Monday, the
day count would be three (3) using either calendar or workdays.
Changing the day count to calendar days would eliminate
discrepancies based upon work schedules. Thus, the day counts would
be easier to calculate and potentially more meaningful.
One of the potential problems with this change would be that
economic information on lost work time as a measure of the impact of
job related injuries and illnesses on work
[[Page 5970]]
life would no longer be available. Employers could, however,
estimate work time lost by applying a work day/calendar day factor
to the recorded day counts. OSHA solicits comment on the idea of
counting calendar days rather than work days, in particular, what
potential do these methods have for overstating (i.e. counting
calendar days) or understating (i.e. counting work days) the
severity of injuries and illnesses? (61 FR 4034)
OSHA received a large number of comments on the calendar day/
scheduled day issue. Many commenters suggested that OSHA track days
away from work using its former method of counting scheduled workdays
(see, e.g., Exs. 21; 30; 37; 15: 10, 16, 30, 42, 44, 48, 61, 66, 69,
78, 79, 89, 100, 107, 108, 119, 121, 122, 127, 130, 133, 146, 151, 152,
154, 159, 163, 170, 172, 179, 180, 200, 203, 204, 213, 214, 219, 226,
246, 260, 262, 265, 281, 287, 297, 299, 300, 304, 305, 307, 308, 341,
346, 356, 363, 364, 368, 373, 378, 384, 385, 387, 389, 390, 397, 401,
404, 410, 413, 414, 424, 426, 427, 431, 440, 443). Many commenters also
suggested that OSHA use calendar days instead of scheduled workdays to
track days away from work (see, e.g., Exs. 19; 44; 15: 26, 27, 31, 34,
44, 71, 75, 82, 105, 111, 119, 127, 136, 137, 138, 141, 153, 181, 182,
188, 198, 205, 218, 224, 233, 242, 263, 266, 269, 270, 271, 278, 310,
316, 326, 337, 345, 347, 350, 359, 369, 377, 391, 396, 405, 407, 409,
415, 418, 423, 425, 428, 429, 434, 438). The arguments of each group
fall loosely into two categories: which counting method provides the
most meaningful data and which method is least burdensome.
Arguing against counting calendar days, a number of commenters
stated that calendar days would overstate lost workdays and
artificially inflate or distort severity rates (see, e.g., Exs. 15: 10,
16, 42, 44, 69, 108, 119, 127, 130, 133, 146, 159, 163, 170, 195, 203,
213, 219, 281, 287, 297, 300, 304, 305, 307, 341, 356, 364, 373, 385,
389, 390, 397, 404, 410, 414, 424, 426, 431, 440, 443). Some commenters
also argued that the information would be ``false and misleading''
(see, e.g., Exs. 15: 287, 443), ``would not indicate true severity''
(Ex. 15: 108), or would make it difficult to compare data from the old
rule with data kept under the new rules (see, e.g., Exs. 37; 15: 44,
61, 130, 146, 226, 281, 297, 299, 300, 304, 341, 378, 384, 385, 397,
404, 426, 440). Typical of these views was the one expressed by the
American Trucking Associations (Ex. 15: 397), which stated that:
This provision serves no useful purpose. Its proponents
exaggerate the difficulty in computing days away from work under the
current regulation. Instead, it will only serve the purpose of
artificially increasing incidence and severity rates which would
falsely designate a given worksite as unsafe or delineate it as a
high hazard workplace. This false delineation of high hazardousness
would also result in the workplace being unfairly targeted by OSHA
for enforcement activities. In addition, this change would make it
difficult, if not impossible, for employers to compare previous lost
work day incidence rates with current rates. Such trend data is
invaluable to employers in tracking progress made in eliminating
workplace injuries and illnesses.
Other commenters, however, argued that calendar days would be a
better statistical measure (see, e.g., Exs. 15: 71, 75, 347, 425, 434,
438). For example, the American Waterways Shipyard Conference (Ex. 15:
75) stated:
AWSC would also urge that ``days away from work'' be counted by
calendar days rather than work days. This would ease the burden on
establishments in their recordkeeping and would also make the data
more useful. For example, an employee injured on Friday who does not
return to work until Tuesday is currently counted as one-day off the
job. If ``days away from work'' are calculated by calendar days,
then this same injury would be counted as three days. The three day
injury ruling is a more accurate indicator of the seriousness of the
injury.
The United Auto Workers (UAW) argued that: ``Calendar days are a
much better measure of severity or disability than actual days which
are adjusted for work schedule, vacations, layoffs and other extraneous
disruptions. Frankly, counting actual days is a waste of effort,
subject to manipulation and serves no public health purpose. It is
relic and should be eliminated. The only reason some employers might
wish to retain this measure is because they can generate a lower
number'' (Ex. 15: 438).
Other commenters were concerned that the change to counting
calendar days would have an unfair effect on firms that rely more
heavily on part-time workers, use alternative schedules, and/or use
planned plant shutdowns (see, e.g., Exs. 15: 42, 96, 121, 159, 163,
213, 219, 200, 262, 281, 299). For example, Dayton Hudson Corporation
(Ex. 15: 121) stated that:
DHC questions the concept of counting calendar days versus the
proposed scheduled work days in documenting days away from work.
Both methods have their value and also potential problems. The
calendar method would make it much easier for a company to record
the severity of an accident. However, this method would have a
significant effect on an industry such as retailing, since the
majority of our work force is part-time. If OSHA decides to go with
the calendar method, there needs to be clearly defined examples
referenced in the standard dealing with part-time workers.
Northrop Grumman Corporation (Ex. 15: 42) asserted that:
``[c]ounting calendar days for days away from work would have an
adverse impact on those companies, such as aerospace companies, which
routinely have shut downs for one or more weeks at a time. Employees
injured on the day prior to shut down would have to be recorded as
being injured, off work, for the entire time of the shut down.'' The
Texas Chemical Council (Ex. 15: 159) expressed concern about the impact
the change to calendar days might have on day counts involving
alternative schedules:
We believe the value of the reduced burden is not worth the
skewed data that may result. OSHA's proposal may yield accurate data
and better reflect severity when applied to work schedules following
an 8 hour day, Monday through Friday. However, many industries
utilize a 12 hour shift that provides periods of time off longer
than the normal two day weekends. The proposed method of counting
days could, for example, turn an injury requiring two days
recuperation time into a case requiring four or more days to be
counted. This would skew severity analysis utilizing days off data.
However, the Eli Lilly Company (Ex. 15: 434) argued that calendar
days would help equalize day counts: ``[a] calendar day count would
ensure employer consistency and comparability even when employers have
unique and variable shift works.''
Other commenters argued that scheduled workdays are a better
measurement because they measure economic impact and lost productivity
(see, e.g., Exs. 15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364,
367, 397). The Fertilizer Institute (Ex. 15: 154) argued that:
``Although such a change might simplify the counting of days, it will
make comparisons difficult for companies, trade and professional
associations, and government agencies that are trying to measure the
severity of injuries and illnesses in terms of productivity. In
addition to the health and safety of its employees, industry is
primarily concerned with the cost of work-related injuries and
illnesses, as they relate to lost productivity. Thus, the basis of the
lost work day, not the lost calendar day, is the most appropriate
measurement to use.'' The Society of the Plastics Industry, Inc. (Ex.
15: 364) urged OSHA to retain the scheduled days system because of its
usefulness in measuring the economic impact of job-related accidents
and the incentive such information provides for prevention efforts.
In addition to arguments about the preferred way of counting days
away, commenters discussed the issues of
[[Page 5971]]
simplification and the burden of counting days away from work with both
methods. A number of commenters supported using calendar days because
doing so would simplify the process and reduce burden (see, e.g., Exs.
15: 71, 75, 82, 136, 137, 141, 224, 242, 263, 266, 269, 270, 278, 347,
377, 415, 418, 423, 434). Two commenters made the point that using
calendar days would make it easier to use computer software to
calculate days away from work (Exs. 15: 347, 423). Representative of
the comments supporting the use of calendar days to reduce the
recording burden was the view of the Ford Motor Company (Ex. 15: 347):
The single most significant change that could be made to
simplify and reduce the burden of the current recordkeeping system
would be a change to a calendar count for days away from work. This
would eliminate the need to keep track of and subtract out any
scheduled days off from the time of the employee's first day away
until the time the employee was able to return to work. Of
additional importance, a calendar count approach would provide a
more accurate reflection of the severity of injuries and illnesses.
Currently, tracking days away from work is a particular problem
in that many individuals no longer work a traditional eight hours a
day, Monday through Friday. Some individuals work four days a week,
ten hours a day, others work every Saturday and/or Sunday, and some
individuals have their scheduled days off during the week. Different
employees in the same establishment commonly have different work
schedules. Different departments are commonly on ``down time'' while
the rest of the establishment may be in full operation. A calendar
count will simplify the calculation of days away from work for
alternative work schedules.
In comparison to the current system, a calendar count will
provide meaningful, consistent, and useful data, as well as provide
an accurate reflection of severity. The calendar day count will also
enhance the ability to develop software to standardize the
recordkeeping process.
In addition, the change to a calendar day count would enable
Ford Motor Company to free up highly trained personnel for more
productive and effective pursuits rather than tracking lost workdays
under the current system. The cost of these resources to track lost
workdays cases exceeds one million dollars per year.
Even some of the commenters who argued against OSHA's adoption of a
calendar day approach in the final rule acknowledged that counting
calendar days would be simpler but emphasized that this added
simplicity and reduction in burden would not offset the deleterious
effect of this change on the data (see, e.g., Exs. 15: 44, 61, 69, 121,
154, 159, 170, 195). The Institute for Interconnecting and Packaging
Electronic Circuits (IPC) said that: ``According to IPC member
companies, the potential simplification gains that may be achieved by
this proposal would not outweigh the gross overreporting and,
therefore, inaccurate data that would result'' (Ex. 15: 69).
Other commenters arguing against calendar days stated that counting
scheduled workdays is not difficult or onerous (see, e.g., Exs. 15:
107, 146, 387), that counting calendar days would not simplify the
counting of lost workdays (see, e.g., Exs. 15: 16, 119, 146, 281, 299,
304, 308, 341, 364, 367, 424), that counting calendar days would add to
the administrative burden (see, e.g., Exs. 15: 42, 146, 304, 308, 341,
364, 367, 431), that counting calendar days would add confusion (see,
e.g., Exs. 15: 204, 431), or that employers already report scheduled
workdays to workers' compensation and thus this information is already
available (see, e.g., Exs. 15: 367, 384). Commenters also cited the
need to change computer software systems if a shift to calendar days
was made (Ex. 15: 122) and argued that retaining scheduled workdays
would require less training than moving to calendar days (see, e.g.,
Exs. 15: 37, 122, 133, 304, 384). The BF Goodrich Company (Ex. 15: 146)
summed up these views:
BF Goodrich's business systems are set up to count and track
work days and work hours. We do not agree with the suggestion of
counting calendar days rather than actual work days for Days Away
From Work cases. Counting calendar days would improperly inflate the
severity incidence rates which are calculated based on actual hours
worked and defeat any efforts to perform trend analysis against
previous years. Use of calendar days would also require unnecessary
analysis of work capability for days that would not be worked
anyway. There would be no reduction in burden in a calendar day
system and there would be loss of severity trend analysis
capability.
A number of commenters pointed to the difficulty of analyzing days
away for injuries that occur just before scheduled time off, such as
before the weekend (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179,
226, 281, 299, 341, 363, 389, 414, 424). The Institute for
Interconnecting and Packaging Electronic Circuits (IPC) described the
following scenario:
[i]f a worker is injured on Friday, is sent home, and returns to
work on Monday, the alternative [calendar day] proposal would
require employers to count weekend days in the lost workday count.
IPC believes that this alternative proposal would not accurately
reflect the severity of the injury since, if the same injury had
occurred on a Monday, the worker might have been able to return to
work on Tuesday. (Ex. 15: 69)
United Parcel Service (UPS) was concerned about the accuracy of
employee reporting of injuries and illnesses under the calendar day
system:
[t]he cessation of the effects of an employee's injury or
illness cannot reliably be determined in the case of a worker who
``heals'' on the weekend. Thus, the number of days away from work
and their impact on the perception of serious incidents will be
substantially inflated. Indeed, it has been UPS's experience that a
disproportionate number of injuries are reported on Friday and
Monday; inclusion of claimed weekend injury, therefore, would
greatly inflate OSHA statistics with factors that honest observers
know to be linked, to some degree, with the universal attraction of
an extended weekend. The risk, moreover, is not merely inflated
numbers, but inflation of the apparent severity of those conditions
that are difficult to verify and that are therefore the most likely
resort of employees who would misreport a condition for time off
(Ex. 15: 424).
Another issue noted by commenters was the difficulty of getting
medical attention over the weekend. For example, the American Ambulance
Association (Ex. 15: 226) cautioned that ``The common practice of a
health care provider is to defer an employee's return to work until
after a weekend or holiday, due to limited staff resources for
evaluating employee status on those days,'' and the Sandoz Corporation
(Ex. 15: 299) noted that ``This change [to calendar days] would lead to
overstatement of the severity in cases of part-time employees due to
the difficulty of getting return-to-work clearance from medical
personnel.''
Two commenters (Exs. 15: 69, 15: 363) objected to counting calendar
days based on a belief that counting these days would raise their
workers' compensation insurance rates. For example, the Institute for
Interconnecting and Packaging Electronic Circuits (IPC) stated that
``Lost time is a major factor in insurance premiums for facilities. As
a result, a definition that would over-estimate lost time would
significantly raise facility insurance costs'' (Ex. 15: 69).
Patrick R. Tyson, a partner in the law firm of Constangy, Brooks &
Smith, LLC (Ex. 55X, pp. 99-100), strongly favored moving to a
calendar-day-count system, for the following reason:
[w]hat we've seen in some audits is companies that attempt to
try to control the number of days that would be counted as lost work
days by controlling the number of days that otherwise would be
worked.* * *
We * * * encountered one company that announced proudly in its
newsletter that one particular employee should be congratulated
because when she had to have surgery for carpal tunnel syndrome,
clearly work related * * * she chose to have that surgery during
[[Page 5972]]
her vacation so that the company's million man hours of work without
a lost time accident would not be interrupted. That doesn't make any
sense where we encourage those kinds of things * * * We ought to
consider a calendar count if only to address those kinds of
situations. I understand that would cause problems with respect to
those companies who use lost work days as a measure of the economic
impact of injuries and illnesses in the workplace, but I suspect
that a better measure of that would be worker's compensation. If
it's a lost work day, you're going to pay comp on it. * * *
OSHA agrees with some of the points made by those in favor of, and
those opposed to, changing over to calendar day counts. After a
thorough review of the arguments for each alternative, however, OSHA
has decided to require employers to count calendar days, both for the
totals for days away from work and the count of restricted workdays.
OSHA does not agree with those commenters who argued that the counting
of calendar days away from work would be a significant burden. The
Agency finds that counting calendar days is administratively simpler
than counting scheduled days away and thus will provide employers who
keep records some relief from the complexities of counting days away
from work (and days of restricted work) under the old system. For the
relatively simple injury or illness cases (which make up the great
majority of recorded cases) that involve a one-time absence from work
of several days, the calendar-day approach makes it much easier to
compare the injury/illness date with the return-to-work date and
compute the difference. This process is easier than determining each
employee's normal schedule and adjusting for normal days away,
scheduled vacations, and days the facility was not open. The calendar
method also facilitates computerized day counts. OSHA recognizes that,
for those injuries and illnesses that require two or more absences,
with periods of work between, the advantages of the calendar day system
are not as significant; OSHA notes, however, that injuries and
illnesses following this pattern are not common.
Changing to a calendar day counting system will also make it easier
to count days away or restricted for part-time workers, because the
difficulties of counting scheduled time off for part-time workers will
be eliminated. This will, in turn, mean that the data for part-time
workers will be comparable to that for full-time workers, i.e., days
away will be comparable for both kinds of workers, because scheduled
time will not bias the counting method. Calendar day counts will also
be a better measure of severity, because they will be based on the
length of disability instead of being dependent on the individual
employee's work schedule. This policy will thus create more complete
and consistent data and help to realize one of the major goals of this
rulemaking: to improve the quality of the injury and illness data.
OSHA recognizes that moving to calendar day counts will have two
effects on the data. First, it will be difficult to compare injury and
illness data gathered under the former rule with data collected under
the new rule. This is true for day counts as well as the overall number
and rate of occupational injuries and illnesses. Second, it will be
more difficult for employers to estimate the economic impacts of lost
time. Calendar day counts will have to be adjusted to accommodate for
days away from work that the employee would not have worked even if he
or she was not injured or ill. This does not mean that calendar day
counts are not appropriate in these situations, but it does mean that
their use is more complicated in such cases. Those employers who wish
to continue to collect additional data, including scheduled workdays
lost, may continue to do so. However, employers must count and record
calendar days for the OSHA injury and illness Log.
Thus, on balance, OSHA believes that any problems introduced by
moving to a calendar-day system will be more than offset by the
improvements in the data from one case to the next and from one
employer to another, and by the resulting improvements in year-to-year
analysis made possible by this change in the future, i.e., by the
improved consistency and quality of the data.
The more difficult problem raised by the shift to calendar days
occurs in the case of the injury or illness that results on the day
just before a weekend or some other prescheduled time off. Where the
worker continues to be off work for the entire time because of the
injury or illness, these days are clearly appropriately included in the
day count. As previously discussed, if a physician or other licensed
health care professional issues a medical release at some point when
the employee is off work, the employer may stop counting days at that
point in the prescheduled absence. Similarly, if the HCP tells the
injured or ill worker not to work over the scheduled time off, the
injury was severe enough to require days away and these must all be
counted. In the event that the worker was injured or became ill on the
last day before the weekend or other scheduled time off and returns on
the scheduled return date, the employer must make a reasonable effort
to determine whether or not the employee would have been able to work
on any or all of those days, and must count the days and enter them on
the Log based on that determination. In this situation, the employer
need not count days on which the employee would have been able to work,
but did not, because the facility was closed, or the employee was not
scheduled to work, or for other reasons unrelated to the injury or
illness.
Accordingly, the final rule adopts the counting of calendar days
because this approach provides a more accurate and consistent measure
of disability duration resulting from occupational injury and illness
and thus will generate more reliable data. This method will also be
easier and less burdensome for employers who keep OSHA records and make
it easier to use computer programs to keep track of the data.
Capping the Count of Lost Workdays
OSHA proposed to limit, or cap, the total number of days away from
work the employer would be required to record. This would have been a
departure from OSHA's former guidance for counting both days away from
work and restricted workdays. The former rule required the employer to
maintain a count of lost workdays until the worker returned to work,
was permanently reassigned to new duties, had permanent work
restrictions, or was terminated (or retired) for reasons unrelated to
the workplace injury or illness (Ex. 2, pp. 47-50).
OSHA's proposed regulatory text stated that ``[f]or extended cases
that result in 180 or more days away from work, an entry of ``180'' or
``180+'' in the days away from work column shall be considered an
accurate count'' (61 FR 4058). In the preamble to the proposal, OSHA
explained that day counts of more than 180 days would add negligible
information for the purpose of injury and illness case analysis but
would involve burden when updating the OSHA records. The proposed
preamble also asked several questions: ``Should the days away from work
be capped? Is 180 days too short or long of a period? If so, should the
count be capped at 60 days? 90 days? 365 days? or some other time
period?'' (61 FR 4033)
A large number of commenters supported a cap on day counts (see,
e.g., Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, 85, 89, 95, 105, 108,
111, 119, 120, 121, 127, 132, 133, 136, 137, 141, 146, 153, 159, 170,
173, 176, 180, 182, 185, 188, 194, 195, 198, 199, 203, 205, 213, 224,
231, 233, 239, 242, 260, 262, 263, 265, 266, 269, 270, 271, 273, 278,
283, 287, 288, 289, 297, 298, 301, 304, 307, 310,
[[Page 5973]]
316, 317, 321, 332, 334, 335, 336, 341, 345, 346, 347, 348, 351, 368,
373, 374, 375, 377, 378, 384, 385, 387, 389, 390, 392, 397, 401, 404,
405, 434, 437, 440, 442). The most common argument was that capping the
counts would reduce the burden on employers (see, e.g., Exs. 21; 33;
15: 82, 95, 111, 146, 154, 159, 170, 176, 182, 188, 213, 231, 260, 262,
265, 273, 288, 289, 297, 301, 304, 305, 310, 341, 345, 346, 373, 389,
390, 401, 442) and simplify the OSHA recordkeeping system (see, e.g.,
Exs. 21; 15: 188, 297, 373). Several commenters argued that such a
change would produce a ``significant'' reduction in burden and cost
(see, e.g., Exs. 15: 154, 159, 203, 297). The Miller Brewing Company
comment (Ex. 15: 442) was representative: ``We endorse this cap on the
days away from work (DAFW) calculation. Once a case reaches 180 days,
it is clearly recognized as a serious case. The requirement to
calculate days away from work beyond 180 is a time consuming
administrative exercise which provides no value-added information
relative to the severity of a given case. Again, we support this rule
change and OSHA's attempt to simplify the recordkeeping process.''
Commenters also pointed out that limiting the day counts would make
it easier to count days for cases that span two calendar years (see,
e.g., Exs. 15: 153, 194, 195, 289). Other commenters stated that it was
difficult to modify the former year's records (Ex. 15: 153) and that
the day count cap would ease the burden of tracking cases that span two
calendar years (Ex. 15: 289).
Several commenters stated that the benefits of recording extended
day counts were insignificant (see, e.g., Exs. 15: 111, 159, 176, 184,
260, 262, 265, 288, 297, 373, 401, 430, 434, 442), that they added
negligible information for case analysis or safety and health program
evaluation (Ex. 15: 434), and that there was no ``value added
information'' from high day counts (see, e.g., Exs. 15: 260, 262, 265,
401, 442). Others stated that capping the day counts would provide
``adequate data'' (see, e.g., Exs. 15: 111, 159, 304, 345) and that
there would be no loss of significant data for analysis (see, e.g.,
Exs. 15: 170, 184, 297, 341, 373). The McDonnell Douglas Corporation
(Ex. 15: 297) argued that a cap ``[w]ould allow industry to avoid the
significant and costly paperwork burdens associated with tracking lost
workdays, without any appreciable reduction in OSHA's ability to
identify significant workplace injuries and illnesses or to assure
continuing improvement in workplace safety and health.''
Support for capping the count of days away from work was not
unanimous, and several commenters opposed a day count cap (see, e.g.,
Exs. 15: 31, 62, 197, 204, 225, 277, 294, 302, 350, 359, 369, 379). The
National Safety Council stated that ``[n]o cap on counting lost
workdays is necessary provided that the count automatically ends with
termination, retirement, or entry into long-term disability. Only a
small proportion of cases have extended lost workday counts so there is
little additional recordkeeping burden. The additional information
gained about long-term lost workday cases is important and keeps
employers aware of such cases'' (Ex. 15: 359). Other commenters
stressed that it was important to obtain an accurate accounting of days
away to assess the severity of the case (see, e.g., Exs. 15: 294, 379,
429, 440), that the counts were needed to make these cases visible
(see, e.g., Exs. 15: 294, 440), and that the counts demonstrate the
impact of long term absences (Ex. 15: 62). For example, the Boeing
Company (Ex. 15: 294) argued that
If the count is suspended after 180 days (or any other arbitrary
number), an employer will lose valuable information regarding the
true amount of lost work days and their associated costs. The
experience of The Boeing Company indicates that there are a small
number of cases that have many more than 180 days. The result is a
disproportionate amount of total costs. Not having visibility of
these cases would be a mistake.
The United Steelworkers of America (USWA) offered several reasons
for not adopting a day count cap: ``The USWA also strongly opposes
capping lost work day cases at 180. We believe that no cap is necessary
or desirable. Only a very small proportion of cases have extended lost
workdays recorded so there is little additional recordkeeping burden.
The additional information gained about long-term lost workday cases is
important in evaluating the severity of the injury and it keeps
attention on such cases'' (Ex. 15: 429).
The International Brotherhood of Teamsters (IBT) opposed the
capping of day counts on the basis that the OSH Act requires
``accurate'' records, stating that:
The IBT opposes the elimination of counting the days of
restricted work activity and opposes capping the count of ``days
away from work'' at 180 days. The IBT uses the restricted work
activity day count to gauge the severity of an injury or illness. We
are supported by the OSH Act, section 24(a) ``the Secretary shall
compile accurate statistics on work injuries and illnesses which
shall include all disabling, serious, or significant injuries or
illnesses. * * *. The International Brotherhood of Teamsters
maintains that the recording of restricted work activity day counts
and counting of days away from work enables OSHA to compile accurate
data on serious and significant injuries. (Ex. 15: 369)
After a review of the evidence submitted to the record, OSHA has
decided to include in the final rule a provision that allows the
employer to stop counting days away from work or restricted workdays
when the case has reached 180 days. OSHA's primary reason for this
decision is that very few cases involve more than 180 days away or days
of restricted work, and that a cap of 180 days clearly indicates that
such a case is very severe. Continuing to count days past the 180-day
cap thus adds little additional information beyond that already
indicated by the 180-day cap.
Selection of the Day Count Cap
A large number of commenters specifically supported the 180 day cap
proposed by OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121,
127, 136, 137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260,
262, 263, 265, 266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368,
377, 385, 401, 404, 423, 430, 437, 442). The Chemical Manufacturers
Association (CMA) stated that ``CMA supports the use of a cap on the
number of days away from work that must be counted. Once an employee
misses more than 180 days from work * * * due a workplace injury or
illness, the relative seriousness of the incident is determined and
little benefit is derived from continuing to count the number of days
for OSHA's recordkeeping system.'' The Fertilizer Institute (Ex. 15:
154) supported 180 days because it ``is consistent with most corporate
long-term disability plans.''
Many commenters who supported a cap on counting days away
recommended that OSHA adopt a number of days other than 180 (see, e.g.,
Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182,
185, 188, 194, 195, 198, 199, 203, 213, 239, 246, 271, 272, 287, 289,
297, 303, 304, 305, 307, 308, 317, 336, 347, 348, 351, 375, 378, 384,
385, 404, 405, 407, 409, 410, 414, 425, 431, 434). The most common
argument against capping at 180 days was that a few very serious cases
would skew the statistical data (see, e.g., Exs. 15: 75, 180, 246, 271,
385, 409). Hoffman-La Roche, Inc. argued for 90 days on the grounds
that ``90 days is more than sufficient to get a read on the severity of
the injury/illness. This would enable employers to obtain meaningful
data that is not skewed by one or two cases'' (Ex. 15: 271).
[[Page 5974]]
Commenters suggested a number of alternatives, including 30 days
(see, e.g., Ex. 15: 414); 60 days (see, e.g., Exs. 15: 60, 108, 119,
194, 203, 246, 287, 405); 60 or 90 (Ex. 15: 407); 90 days (see, e.g.,
Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303,
317, 336, 347, 378, 409, 410, 425, 431); 50 to 100 days (see, e.g.,
Exs. 37; 15: 384); 90 to 120 days (Ex. 15: 71); 90 or 180 days (Ex. 15:
434); 120 days (Ex. 15: 198); the equivalent of six months (see, e.g.,
Exs. 15: 82, 188, 199, 213, 304, 307, 308, 351, 375); one year (Ex. 15:
122); and 60 days after the beginning of the new year (see, e.g., Ex.
15: 195).
The most common alternative recommended by commenters was 90 days
(see, e.g., Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272,
289, 297, 303, 317, 336, 347, 378, 409, 410, 425, 431). These
commenters argued that 90 days would reduce the burden without a loss
of information (see, e.g., Exs. 15: 75, 85, 239, 297, 425), that 90
days is sufficient to determine severity (see, e.g., Exs. 15: 85, 105,
271 272, 289, 303, 410), that 90 days matches existing labor agreements
(see, e.g., Exs. 15: 378), and that 90 days limits the problems caused
by a case that extends over 2 years (see, e.g., Exs. 15: 407, 431).
NIOSH (Ex. 15: 407) commented that:
NIOSH agrees with OSHA that ``day counts greater than 180 days
add negligible information while entailing significant burden on
employers when updating OSHA records.'' Therefore, NIOSH agrees with
the concept of capping the count of days away from work at a maximum
of 180 days, and recommends that OSHA also consider caps of 60 or 90
days away from work.
Currently, the Annual Survey of Occupational Injuries and
Illnesses reports distributional data for the number of days away
from work and the median number of days away from work for
demographic (age, sex, race, industry, and occupation) and injury/
illness (nature, part of body, source, and event) characteristics.
The largest category of days away from work reported by the BLS for
days away from work is ``31 days or more.'' In 1992, the Annual
Survey reported median days away from work that ranged from 1 day to
236 days [U.S. Department of Labor 1995]. For most demographic and
injury/illness categories, capping the count of days away from work
at 180 days will not alter the values for either the percent of
injuries in the ``31 days or more'' category or median days away
from work.
OSHA may wish to consider capping the count of days away from
work at either the 60 or the 90 day level. Employers could be
instructed to enter a value of 61+(or 91+) to indicate that the
recorded injury or illness condition existed beyond the cap on the
count of days away from were based on the 1992 Annual Survey data,
no reported industry and only one reported occupation had a median
of greater than 60 days (dental hygienist, median = 71). There was
also a very small number of injury/illness characteristics with
medians between 60 and 90 days or with medians exceeding 90 days.
Eleven of the 13 instances in which the median exceeded 60 days away
from work were based on distributions involving a small number of
estimated cases i.e., only 100 to 400 nationally. Capping the count
of days away from work at either 60 or 90 days would still allow the
reporting of the proportion of cases involving days away from work
in the ``31 days or more category'' that is currently being reported
by the BLS. A minor limitation of capping the count of days away
from work at 60 or 90 days is that for a very small number of
characteristics, the median would have to be reported as exceeding
the cap.
Two commenters suggested that OSHA use months instead of days as
the measurement (Exs. 15: 304, 404), and a number of commenters pointed
out that OSHA's proposed 180 days should be 125 if based on 6 months of
actual workdays instead of calendar days (see, e.g., Exs. 15: 199, 213,
307, 308, 348).
After careful consideration, OSHA has decided to cap the day counts
at 180 days and to express the count as days rather than months. The
calendar month is simply too large and unwieldy a unit of measurement
for this purpose. The calendar-day method is the simplest method and
will thus produce the most consistent data.
OSHA has decided to cap the counts at 180 days to eliminate any
effect such capping might have on the median days away from work data
reported by BLS. This cap will continue to highlight cases with long
periods of disability, and will also reduce the burden on employers of
counting days in excess of 180. Using a shorter threshold, such as 90
or even 120 days, could impact the injury and illness statistics
published by the BLS, and could thus undermine the primary purpose of
this regulation: to improve the quality and utility of the injury and
illness data. Using a shorter time frame would also make it harder to
readily identify injuries and illnesses involving very long term
absences. The rule also does not require the employer to use the
designation of 180+ or otherwise require cases extending beyond 180
days to be marked with an asterisk or any other symbol, as suggested by
various commenters (see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407,
425). Employers who wish to attach such designations are free to do so,
but OSHA does not believe such designations are needed.
Counting Lost Workdays When Employees Are No Longer Employed by the
Company
The proposed rule contained a provision that would have allowed the
employer to stop counting the days away from work when the worker was
terminated for reasons unrelated to an injury or illness (61 FR 4058).
This provision would have continued OSHA's former policy on this
matter, which allowed the employer to stop counting days away or
restricted workdays when the employee's employment was terminated by
retirement, plant closings, or like events unrelated to the employee's
work-related injury or illness (Ex. 2, pp. 49, 50). The final rule, at
paragraph 1904.7(b)(3)(vii), permits employers to stop counting days
away if an injured or ill employee leaves employment with the company
for a reason unrelated to the injury or illness. Examples of such
situations include retirement, closing of the business, or the
employee's decision to move to a new job.
Paragraph 1904.7(b)(3)(vii) also requires employers whose employees
have left the company because of the injury or illness to make an
estimate of the total days that the injured or ill employee would have
taken off work to recuperate. The provisions in paragraph
1904.7(b)(3)(vii) also apply to the counting of restricted or
transferred days, to ensure that days are counted consistently and to
provide the simplest counting method that will collect accurate data.
OSHA's reasoning is that day counts continue to be relevant indicators
of severity in cases where the employee was forced to leave work
because of the injury or illness.
Handling Cases That Cross Over From One Year to the Next
A special recording problem is created by injury and illness cases
that begin in one year but result in days away from work or days of
restricted work in the next year. Under the former rule, the employer
was to record the case once, in the year it occurred, and assign all
days away and restricted days to that case in that year (Ex. 2, p. 48).
Under the rule being published today, this policy still applies. If the
case extends beyond the time when the employer summarizes the records
following the end of the year as required by Sec. 1904.32, the employer
is required by paragraph 1904.7(b)(3)(viii) to update the records when
the final day count is known. In other words, the case is entered only
in the year in which it occurs, but the original Log entry must
subsequently be updated if the day count extends into the following
year.
In addition to the NIOSH (Ex. 15: 407) comments on the day counts
summarized above, the Society for Human Resource Management (Ex. 15:
431) urged OSHA to adopt a lower day
[[Page 5975]]
count cap to limit the ``crossover'' problem. Two commenters urged OSHA
to take a new approach to cases that extend over two or more years.
Both the Laborers' Health & Safety Fund of North America (Ex. 15: 310)
and the Service Employees International Union (Ex. 15: 379) recommended
that these cases be recorded in each year, with the days for each year
assigned to the appropriate case. The Laborers' Health & Safety Fund of
North America (Ex. 15: 310) stated:
One concern with a large number of days away from work is how to
record the lost days which begin in one calendar year and end in a
following calendar year. We suggest that it is best to record the
number of days lost from the date of the injury to the end of the
calendar year, and to enter the injury again on the following year's
OSHA 300 with the remaining days of lost time up to the 180 day
maximum. A box should be available to indicate that the entry is a
continuation from the prior year.
As stated earlier, OSHA has decided on the 180 day cap for both
days away and days of restricted work cases to ensure the visibility of
work-related injuries and illnesses with long periods of disability.
The final rule also requires the employer to summarize and post the
records by February 1 of the year following the reference year.
Therefore, there will be some cases that have not been closed when the
records are summarized. Although OSHA expects that the number of cases
extending over two years will be quite small, it does not believe that
these cases warrant special treatment. A policy that would require the
same case to be recorded in two years would result in inaccurate data
for the following year, unless special instructions were provided.
Accordingly, the final rule requires the employer to update the Log
when the final day count is known (or exceeds 180 days), but to record
the injury or illness case only once. This approach is consistent with
OSHA's longstanding practice and is thus familiar to employers.
Miscellaneous Day Counting Issues
Two commenters provided additional comments for OSHA to consider on
the issue of counting days away from work. The Laborers' Health &
Safety Fund of North America (Ex. 15: 310) recommended that OSHA
require employers to enter a count of 365 days away from work on the
Log for any fatality case:
In a recent project we used OSHA 200 data from road construction
and maintenance employers to determine the causes and relative
severities of serious injuries. The number of lost workdays plus
restricted work activity days for an injury event or type was used
as a measure of severity. In quite a few individual injury cases,
the number of days away from work entry was not available because of
the severity of the injury or because the injury resulted in a
fatality. For recordkeeping purposes, we would suggest a maximum cap
of 180 days for a non-fatal serious injury of long duration, and an
automatic entry of 365 for fatalities. Using this method, the most
severe cases would be weighted appropriately, with fatalities
carrying the heaviest weight. Also, entering a lost workday number
for fatalities would enable fatalities to count in a single and
simple ``severity-weighted Lost Work Day Injury and Fatality (LWDIF)
rate''.
OSHA has not adopted the Laborers' Health & Safety Fund of North
America recommendation. OSHA believes that fatalities must be
considered separately from non-fatal cases, however severe the latter
may be. When an employee dies due to a work-related injury or illness,
the outcome is so severe and so important that it must be treated
separately. Merging the two types of cases would diminish the
importance of fatality entries and make the days away data less useful
for determining the severity of days away injury cases. Accordingly,
the final rule being published today does not reflect this
recommendation.
The Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look
at days of hospitalization as a measure of severity, stating ``[t]he
number of days hospitalized does provide a more objective indication of
the seriousness of injury or illness, if for no other reason than cost
control by insurance companies. If OSHA can document a legitimate use
for an indicator of the ``seriousness'' of an injury, it may want to
consider hospital stay time.'' OSHA has considered the use of
hospitalized days, but has rejected them as a measure of injury or
illness severity. Although these day counts may be a reasonable proxy
for severity, they are applicable only in a relatively small number of
cases.
Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job
Another class of work-related injuries and illnesses that Section
8(c) of the Act identifies as non-minor and thus recordable includes
any case that results in restriction of work or motion2 or transfer
to another job. Congress clearly identified restricted work activity
and job transfer as indicators of injury and illness severity.
---------------------------------------------------------------------------
2 The term restricted motion has been interpreted to mean
restricted work motion and to be essentially synonymous with
restricted work. OSHA does not distinguish between the two terms.
OSHA's former Guidelines (Ex. 2, p. 43) clearly stated that a
restriction of work or motion, such as that resulting from a
bandaged finger, that did not also impair work was not recordable,
and that is also the interpretation of the final rule.
---------------------------------------------------------------------------
In the years since OSHA has been enforcing the recordkeeping rule,
however, there has been considerable misunderstanding of the meaning of
the term ``restricted work,'' and, as a result, the recording of these
cases has often been inconsistent. The Keystone Report (Ex. 5), which
summarized the recommendations of OSHA stakeholders on ways to improve
the OSHA recordkeeping system, noted that restricted work was perhaps
the least understood of the elements of the system.
This section of the Summary and Explanation first discusses the
former recordkeeping system's interpretation of the term restricted
work, describes how the proposed rule attempted to revise that
interpretation, and then summarizes and responds to the comments OSHA
received on the proposed approach to the recording of work restriction
and job transfer cases. Finally, this section explains the final rule's
restricted work and job transfer requirements and OSHA's reasons for
adopting them.
The Former Rule
The former recordkeeping rule did not include a definition of
restricted work or job transfer; instead, the definition of these terms
evolved on the basis of interpretations in the BLS Guidelines (Ex. 2,
p. 48). The Guidelines stated that restricted work cases were those
cases ``where, because of injury or illness, (1) the employee was
assigned to another job on a temporary basis; or (2) the employee
worked at a permanent job less than full time; or (3) the employee
worked at his or her permanently assigned job but could not perform all
the duties connected with it.'' The key concepts in this interpretation
were that work was to be considered restricted when an employee
experienced a work-related injury or illness and was then unable, as a
result of that injury or illness, to work as many hours as he or she
would have been able to work before the incident, or was unable to
perform all the duties formerly connected with that employee's job.
``All duties'' were interpreted by OSHA as including any work activity
the employee would have performed over the course of a year on the job.
OSHA's experience with recordkeeping under the former system
indicated that employers had difficulty with the restricted work
concept. They questioned the need for keeping a tally of restricted
work cases, disagreed with the ``less than full time'' concept, or
[[Page 5976]]
were unsure about the meaning of ``all the duties connected with [the
job].'' (In OSHA's experience, employers have not generally had
difficulty understanding the concept of temporary job transfer, which
are treated in the same way as restricted work cases for recordkeeping
purposes. The following discussion thus focuses on restricted work
issues.) The changes OSHA proposed to make to the work restriction
concept (61 FR 4033) were intended to address these employer concerns.
The Proposed Rule
The proposal would have changed restricted work recordkeeping
practices markedly. For example, the proposal would have required
employers to acknowledge that the case involved restricted work by
placing a check in the restricted work column on the Log but would no
longer have required them to count the number of restricted work days
associated with a particular case. At the time of the proposal, OSHA
believed that dropping the requirement to count restricted days was
appropriate because the Agency lacked data showing that restricted work
day counts were being used by employers in their safety and health
programs. In addition, the proposal would have limited the work
activities to be considered by the employer in determining whether the
injured or ill worker was on restricted work. Under the former rule,
employers had to consider whether an injured or ill employee was able
to perform ``all the duties'' normally connected with his or her job
when deciding if the worker's job was restricted; OSHA interpreted
``all the duties'' to include any work activity the employee performed
at any time within a year. Under the proposal, the duties that the
employer would have been required to consider were narrowed to include
only (1) those work activities the employee was engaged in at the time
of injury or illness onset, or (2) those activities the employee would
have been expected to perform on that day (61 FR 4059). OSHA also
requested comment in the proposal on the appropriateness of limiting
the activities to be considered and on other definitions of work
activities that should be considered, e.g., would it be appropriate not
to consider an employee to be on restricted work if he or she is able
to perform any of his or her former job activities? (61 FR 4059).
Comments on the Proposed Rule's Restricted Work and Job Transfer
Provisions
The comments OSHA received on these provisions were extensive.
Commenters offered a wide variety of suggestions, including that OSHA
eliminate restricted work activity cases from the recordkeeping system
altogether, that the proposed definition of restricted work activity be
changed, that the proposed approach be rejected, that it be adopted,
and many other recommendations. These comments are grouped under topic
headings and are discussed below.
Eliminate the Recording of Restricted Work Cases
Several commenters recommended that OSHA completely eliminate the
recording of restricted work cases because, in the opinion of these
commenters, the concept confused employers, created disincentives to
providing light duty work or return-to-work programs, and provided no
useful information (see, e.g., Exs. 15: 119, 203, 235, 259, 336, 414,
427). For example, the American Bakers Association said, ``We believe
that the concept and definitions of `restricted work activity' should
be eliminated. That term and its proposed definition is so ambiguous as
to be unworkable, and information gleaned from that terminology would
have little reliability or usefulness'' (Ex. 15: 427).
The National Grain and Feed Association agreed, arguing that the
recording of restricted work cases should be eliminated on the
following grounds:
[w]e agree with the conclusion of the Keystone Report that ``the
recording of restricted work is perhaps the least understood and
least accepted concept in the recordkeeping system.'' We disagree
with OSHA, however, that the concept of restricted work is
meaningful. For example, there is a wide range of restrictions that
may be placed on an injured employee's activity after returning to
work depending on the nature of the injury (e.g., the range of work
possible for an employee who has experienced a slight sprain versus
an employee with a broken bone). Additionally, the concept of
restricted work is greatly dependent on individual employee
motivation and job description. * * * Importantly, we believe the
concepts embodied in the proposed restricted work definition run
counter to modern work practices that encourage workers to return to
productive work at the worksite. Workers who have experienced minor
injuries on the job can return to productive work under employer
``return-to-work'' programs. For this reason, the concept of
restricted work is arbitrary and ultimately of little use to either
evaluating the effectiveness of an employer's safety and health
programs or determining the exposure of workers to a hazard at a
specific worksite. We, therefore, recommend that the Agency delete
the category of restricted work injuries from the proposed changes
to 29 CFR 1904. Removal of this section will simplify the
recordkeeping system and make it more ``user friendly.'' We support
deletion of this category of injury because we think it will make
the system more complex and is inconsistent with current practices
of returning employees back to productive work at the earliest date
(Ex. 15: 119).
Revise the Proposed Definition of a Restricted Work Case
Most of the remaining comments recommended either that the
definition of restricted work in the final rule be revised to include a
more inclusive set of job activities or functions or a less inclusive
set. For example, the Small Business Administration (Ex. 51) was
concerned that:
[t]he new definition for classifying ``restricted work
activity'' could increase the number of cases that would be subject
to this standard, and subsequently, classified as a recordable
incident. Small businesses would face increased recordkeeping. Under
the proposed definition, a case would be determined as a
``restricted work activity'' if the employee cannot perform what he
or she was doing at the time of the illness or injury, or he or she
could not perform the activities scheduled for that day. While this
would be a very simple method, it would encompass more recordable
incidents. Many workers have a myriad of tasks associated with their
job. If an employee can return to work and perform functions within
their job description, this should not be considered ``restricted
work activity''. * * *
Several commenters recommended that OSHA rely on a definition of
restricted work that would focus on ``non productive work'' and exclude
the recording of any case where the employee was still productive (see,
e.g., Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). For example,
Countrymark Cooperative, Inc. (Ex. 15: 9) stated:
[w]e disagree with a portion of the definition for restricted
work activity. We agree that this should include injuries or
illnesses where the worker is not capable of performing at full
capacity for a full shift. However, by addressing the task that they
were engaged in at the time of the injury will create problems. Most
employees today have numerous assignments and responsibilities. They
move from one task to another during a given day and during a given
week. What they are doing at the time they are injured may not be
the assignment for the next day or the next week. In these cases,
they may be back at work in a fully productive role, but not doing
the same task as when they were hurt. If they are performing a fully
productive role within the same job description, but cannot perform
the role of the job they were doing at the time, they should not be
penalized. In many cases, this job task may not be active at the
time they return. * * * It should be very clear that the ability to
return an employee to a productive role (whether 50% or 100%) is
extremely important to any ``Return-to-Work'' Program. If that
person is returned to work and is
[[Page 5977]]
performing at full capacity in a given task within their job
description, this should not be recorded unless it meets other
criteria such as medical treatment. If we return to the days of
recording these and penalizing the employer, they may be inclined to
return to the days of only allowing employees to return to work when
they are 100% in all given tasks within their job description. If
this occurs, we all lose. * * * We do agree that any time an
employee is returned to work and is restricted to only perform
certain jobs, can only return for a limited duration, or must be
reassigned to another task, this should be recorded as a restricted
work case (Ex. 15: 9).
Others recommended that OSHA adopt the Keystone Report's definition
of restricted work (see, e.g., Exs. 15: 123, 129, 145, 225, 359, 379,
418). For example, the National Safety Council recommended:
[t]he concept of restricted work activity as described on page
4046 [of the Federal Register] is one with which the Council
concurs, but the specific wording in proposed section 1904.3 is less
clear. The colon following the opening clause of the definition ``at
full capacity for a full shift:'' seems to mean that the employee
must be able to perform the task during which he/she was injured and
the other tasks he/she performed or would have performed that day
not only for the normal frequency or duration, but ``at full
capacity for a full shift.'' For example, if the employee were
required to open a valve at the start of a shift and close it at the
end of the shift, the current wording seems to say that if the
employee could not spend the entire shift opening and closing the
valve, then his/her work activity is restricted. * * * The Council
also believes that the concept of restricted work activity as
formulated by the Keystone Report is appropriate in that it
represents a consensus among the various stakeholder groups. For
this reason, we also recommend that the task limitations refer to
the week's activities rather than the day's activities (Ex. 15:
359).
The Union of Needletrades, Industrial and Textile Employees (UNITE)
agreed with the National Safety Council that a different time period
should be used in determining what job activities to consider. UNITE
suggested that OSHA use the employee's monthly, rather than daily or
weekly, duties to define restricted work activity (Ex. 15: 380).
A few commenters expressed concern that use of the proposed
restricted work definition could lead employers to include unusual,
extraordinary or rarely performed duties in the ``work activities'' to
be considered when determining whether a case was a restricted work
case (see, e.g., Exs. 15: 80, 247). For example, the Arizona Public
Service Company said:
[d]etermining restricted duty days should remain as it currently
is in the Guidelines. The restriction should focus on the ability of
the employee to perform all or any part of his or her normal job
duties. Focusing on what specifically they were doing at the time of
injury could incorrectly base this determination on an activity that
is performed rarely. Also, focusing on what they were scheduled to
do for that week would not be useful for those whose schedules can
change daily (Ex. 15: 247).
Adopt the Americans With Disabilities Act Definition of Essential
Duties
The Laboratory Corporation of America's comment (Ex. 15: 127) was
typical of those of several commenters who suggested that OSHA use the
concept of essential job duties that is also used for the
administration of the Americans with Disabilities Act (ADA) (see, e.g.,
Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431):
[t]he definition used by the Americans with Disability Act (ADA)
would be very useful here. That definition indicates that restricted
work exists if an employee is unable to perform the essential
functions of his/her job. Since these essential functions are
identified in the employee's job description, the employer would
have a consistent ``yardstick'' with which to make this
determination for each employee.
Adoption of the Proposed Approach Will Lead to Underreporting
Some commenters, such as the AFL-CIO, opposed the proposed approach
to restricted work on the grounds that it would result in
underreporting:
[w]e believe this proposed provision would entice employers to
manipulate records and lead to further under-reporting. We strongly
suggest that the Agency adopt the Keystone Report recommendation of
restricted work which requires an employer to record if the employee
is (1) unable to perform the task he or she was engaged in at the
time of injury or onset of illness (task includes all facets of the
assignment the employee was to perform); or (2) unable to perform
any activity that he or she would have performed during the week
(Ex. 15: 418).
Other commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For
example, the United Brotherhood of Carpenters (UBC) Health & Safety
Fund of North America argued in favor of a broader definition to avoid
this problem:
[t]he majority of workers represented by the UBC, such as
carpenters and millwrights, routinely perform a wide variety of
tasks during their normal workdays in either construction or
industrial settings. Therefore, OSHA should not limit the
classification of ``restricted work activity'' to either ``the task
he or she was engaged in at the time of the injury'' or his or her
daily work activity (daily work activity includes all assignments
the employee was expected to perform on the day of the injury or
onset of illness)'' as proposed. The UBC feels that the current
proposal would allow for manipulation of the records and will lead
to serious under reporting. Many workplaces have armies of ``walking
wounded'' rather than reporting lost or restricted work activity.
OSHA should at the very least adopt the position of the Keystone
Report which recommended that restricted work activity should be
recorded if the employee is ``(1) unable to perform the task he or
she was engaged in at the time of the injury or onset of illness, or
(2) unable to perform any activity that he or she would have
performed during the week.'' The UBC believes that the best
definition of restricted work activity would be any illness or
injury which inhibits, interferes with, or prevents a worker from
performing any or all of the functions considered to be a normal
part of his or her trade or occupation as defined in the applicable
job description (Ex. 20).
Do Not Count Incidents Involving Only One or a Few Days as Restricted
Work
A number of commenters recommended that restricted work activity
involving only the day of injury/illness onset should not trigger an
OSHA recordable case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391). Typical of these comments is one from the Society of
the Plastics Industry, Inc.:
[e]mployers have had problems with OSHA's definition of
restricted work activity because OSHA's interpretation that having
any work restriction, even one which lasts only for the remainder of
the shift and which imposes no significant limitations on the
employee's ability to perform his or her job, makes a case
recordable. OSHA should adopt the administratively simple and
common-sense rule that restricted work activity on the day of the
case report does not make the case recordable. . . . The definition
of ``restricted work activity'' should be clarified to state that
the criteria apply only to days following the day of injury or onset
of the illness. An employee's inability to work a full shift on the
actual date of injury or onset of illness should not require
recording as a restricted work case. As noted above, because OSHA's
interpretation that having any work restriction, even one which
lasts only for the remainder of the shift and which imposes no
significant limitations on the employee's ability to perform his or
her job, makes a case recordable, many non-serious, non-disabling
cases are now recorded. Cases which do not otherwise meet the
recordability criteria should not be recordable. Therefore, as
recommended above, OSHA should eliminate the current requirement to
record cases in which restricted work activity occurs only on the
day of the case report (Ex. 15: 364).
The Kodak Company urged OSHA not to count cases involving
restrictions lasting only for three days as restricted work cases on
the grounds that such cases are ``minor'': ``Restricted work activity
allows employers and employees to remain at work. This is a win-win
situation for both. Kodak suggests restricted work activity be counted
only if the restriction lasts
[[Page 5978]]
longer than 3 working days. Hence, only serious cases would be
recorded'' (Ex. 15: 322).
Adopt the Proposed Approach
A large number of commenters supported OSHA's proposed definition,
however (see, e.g., Exs. 27, 15: 26, 61, 70, 133, 159, 171, 185, 199,
204, 242, 263, 269, 270, 272, 283, 303, 305, 307, 317, 318, 324, 334,
347, 351, 373, 375, 377, 378, 384, 390, 392, 405, 409, 413, 425, 430).
Typical of these were comments from the New Jersey Department of Labor
(Ex. 15: 70), which commented:
[p]roviding a clear definition of what constitutes restricted
work and an item to indicate that an injured employee has been
shifted to restricted work activity should improve the accuracy and
completeness of case reporting. Identifying the actual number of
cases in which employees are shifted to alternate work, which are
thought to be under reported, and adding the date when the employee
returned to his/her usual work will help to assess the impact of
these incidents.
The American Petroleum Institute, which believed that the proposed
definition would be easy to interpret and would therefore improve
recording consistency, stated: ``API strongly supports OSHA's proposed
definition of restricted activity. Because it is much more logical and
easy to understand than the current definition, API believes it will
lead to greater consistency'' (Ex. 15: 375).
Use Different Triggers Than Those Proposed
The Commonwealth Edison Company recommended that restricted work be
defined only in terms of the hours the employee is able to work, not
the functions the employee is able to perform:
[C]omEd disagrees with OSHA on its definition of ``restricted
work activity''. We propose that OSHA consider that restricted work
activity simply state ``Restricted work activity means the worker,
due to his or her injury or illness, is unable to work a full
shift.'' OSHA's proposed definition of restricted work activity is
even more confusing than the current one. ComEd's proposed
definition will allow quantifiable, direct cost tracking for this
category of injury or illness. Workers will more than likely have
some kind of meaningful work waiting for them if the injury is not
disabling. If he or she is able to work the required normal shift
hours, don't count the case as restricted. If they miss the entire
shift, count is as a day away from work. If they miss part of the
shift, count it as restricted (Ex. 15: 277).
Two commenters suggested that a case should only be considered
restricted when it involves both medical treatment and work
restrictions (Exs. 15: 9, 348). For example, the E. I. du Pont de
Nemours & Company (DuPont) said that the
``Restricted Work Activity'' definition is a definite
improvement over the current one. Suggest making treatment AND
restriction the criteria. An insignificant injury can result in
being told not to climb ladders. This does not negate the ability to
do the job; it just limits the job to levels where ladder climbing
is not required. * * * Restricted work activity is more dependent on
timing and job than on injury severity. It doesn't necessarily focus
on hazardous conditions. Certainly the definition in the proposed
guidelines is far more specific and appropriate than the current
one. We suggest consideration be given to dropping the Restricted
category where medical treatment is not also given. For example, a
slight muscle strain will result in advice not to climb ladders. The
case would be in the restricted category although the treatment, if
any, would be at the first aid level. Injury severity is the
equivalent of a cut finger'' (Ex. 15: 348).
Other comments sought a broader, more inclusive definition of
restricted work, one that relies on job descriptions (see, e.g., Exs.
15: 41, 62, 198, 426). For example, Robert L. Rowan, Jr. stated:
[t]he definition of ``restricted work activity'' also concerns
me and I believe it is unsuitable. The definition refers to an
employee who is not capable of performing at full capacity for a
full shift the ``task'' that he or she was engaged in at the time of
the injury or onset of illness. The definition should include ``any
and all tasks'' within the employee's clearly defined job
description'' (Ex. 15: 62).
The Maine Department of Labor, however, preferred the former rule's
interpretation, with some modifications:
[w]e agree that there should be no mention of ``normal'' duties
in the definition. Include: temporary transfer to a position or
department other than the position or department the worker was
working at when he/she was injured. Some of these can be detected on
payroll records; only being able to work part of their workday. Time
forms could raise suspicion here; a health care provider puts the
person on written restrictions unless the employer can show that the
restrictions listed do not impact the employee's ability to do his
or her scheduled job during the time period of the restrictions.
Keep a copy of the restrictions in the file. The doctor's name on
the OSHA 301 serves as another possible check (Ex. 15:41).
Miscellaneous Comments and Questions
There were also a variety of miscellaneous comments and questions
about the proposed approach to the recording of restricted work cases.
For example, Bob Evans Farms suggested that:
[w]hen considering this proposal, OSHA needs to keep in mind the
special nature of the restaurant business. It is not uncommon for a
cook to cut himself or herself, apply a Band-Aid, and then
temporarily be reassigned to janitorial work for a day or two to
keep the cut dry while it heals. This could be considered work duty
modification and would then need to be reported to OSHA. As you can
see, this type of minor occurrence would clog the system with
needless paper (Exs. 15: 3, 4, 5, 6).
Phibro-Tech, Inc. offered this comment:
[a] factory employee who normally performs heavy labor may be
assigned office work as a restricted work activity, and may not
actually be contributing anything meaningful to the job. Will
employers be required to limit what is considered ``light duty''
tasks? Will there be directives as to when an employee should really
be off work or when he can be on ``light duty''? Occupational
physicians all have different opinions as to when an employee can
return for light or full duty. It would be helpful to have more
direction on this issue so employees aren't sent back to work too
soon or kept off on lost time too long (Ex. 15: 35).
The law firm of Constangy, Brooks & Smith, LLC, asked, ``[w]ould a
restriction of piece rate or production rate be considered restricted
duty under the proposed definition even though it is not considered
restricted duty under the present guidelines?'' (Ex. 15: 428). Miller
Brewing Company added, ``[w]ould also recommend that OSHA attempt to
clarify whether a treating physician's [non-specific] return to work
instructions such as ``8 hours only,'' ``self restrict as needed,'' and
``work at your own pace'' will constitute restricted work activity
under the proposed recordkeeping rule'' (Ex. 15: 442).
The Pacific Maritime Association stated:
This is another example where the ILWU/PMA workforce does not
fit into the proposed recordkeeping system. The regulation as
written pertains to employers who assign their employees to work
tasks. As previously mentioned, in our industry it is the employee
who selects the job they will perform. This dispatch system, or job
selection process, presents many problems when the maritime industry
is required to conform to requirements established for traditional
employee/employer relationships found in general industry. At the
present time there is no method available to determine why an
individual longshoreman selects a specific job. Therefore, the
requirement to identify, track, and record ``restricted work
activity'' may be impossible to accomplish [in the maritime
industry] (Ex. 15: 95).
Preventive Job Transfers
Several commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged
OSHA to make some accommodation for ``preventive
[[Page 5979]]
transfers'' and medical removals. Many transfers and removals of this
nature are related to work-related musculoskeletal disorders and are
used to prevent minor musculoskeletal soreness from becoming worse. The
following comments are representative of the views of these commenters.
The Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) coalition
commented:
[t]his definition [the proposed definition of restricted work]
is overly broad, penalizes employers who have a light duty program
in place, and fails to take into account that (1) today's employees
increasingly are cross trained and perform varied tasks, and (2) the
ability of an employee to perform alternative meaningful work
mitigates the seriousness of the inability to perform work in the
two categories set out in the definition as proposed. The ODNSS
Coalition recommends curing these defects by adding the following
proviso to the proposed definition: ``The case should be recorded as
a restricted work case UNLESS the restrictive work activity is
undertaken to relieve minor soreness experienced by a newly hired or
transferred employee during a break-in phase to prevent the soreness
from worsening, or the employee otherwise is able to perform other
existing full-time duties.'' The appropriate nature of the
recommended proviso is underscored by a baseball analogy where the
right fielder and the center fielder change positions. They both
continue to play on the same team and make substantial
contributions, but the strain on the new right fielder is less
because he doesn't have as much ground to cover (Ex. 15: 406).
The National Association of Manufacturers (NAM) summed up its views
as follows:
[a] preventive or prophylactic measure such as medical removal
(as opposed to a restorative or curative measure) is not and should
not be deemed medical treatment, a job transfer or restricted
activity for purposes of recordability, in the absence of a
substantial impairment of a bodily function (Ex. 25).
Although Organization Resource Counselors (ORC) generally endorsed
the proposed approach to the treatment of restricted work cases, it did
express concern about how medical removal cases would be treated under
the proposed definition:
[t]he proposed definition of restricted work is a significant
improvement over the current [former] one, which was considered by
many employers to be unfair and confusing. It is no secret that many
employers did not understand the current restricted work rules and,
as a result, did not follow them consistently. Additionally, the
[proposed] elimination of the count of restricted workdays is
appropriate and is a recognition by OSHA that the recording of this
count is of little value to either the Agency or employers in
program evaluation or program development. * * * Additionally,
requirements for the recording of either voluntary or mandatory
medical removals where no additional symptoms are present are
examples of appropriate action taken by employers to prevent harm to
employees and not of a recordable injury or illness. * * *'' (Ex.
15: 358).
Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's
Reasons for Adopting Them
Paragraph 1904.7(b)(4) contains the restricted work and job
transfer provisions of the final rule. These provisions clarify the
definition of restricted work in light of the comments received and
continue, with a few exceptions, most of the former rule's requirements
with regard to these kinds of cases. OSHA finds, based on a review of
the record, that these provisions of the final rule will increase
awareness among employers of the importance of recording restricted
work activity and job transfer cases and make the recordkeeping system
more accurate and the process more efficient.
OSHA believes that it is even more important today than formerly
that the definition of restricted work included in the final rule be
clear and widely understood, because employers have recently been
relying on restricted work (or ``light duty'') with increasing
frequency, largely in an effort to encourage injured or ill employees
to return to work as soon as possible. According to BLS data, this
category of cases has grown by nearly 70% in the last six years. In
1992, for example, 9% of all injuries and illnesses (or a total of
622,300 cases) recorded as lost workday cases were classified in this
way solely because of restricted work days, while in 1998, nearly 18%
of all injury and illness cases (or a total of 1,050,200 cases) were
recorded as lost workday cases only because they involved restricted
work [BLS Press Release 99-358, 12-16-99). The return-to-work programs
increasingly being relied on by employers (often at the recommendation
of their workers' compensation insurers) are designed to prevent
exacerbation of, or to allow recuperation from, the injury or illness,
rehabilitate employees more effectively, reintegrate injured or ill
workers into the workplace more rapidly, limit workers' compensation
costs, and retain productive workers. In addition, many employees are
eager to accept restricted work when it is available and prefer
returning to work to recuperating at home.
The final rule's requirements in paragraph 1904.10(b)(4) of the
final rule state:
(4) How do I record a work-related injury or illness that
involves restricted work or job transfer?
When an injury or illness involves restricted work or job
transfer but does not involve death or days away from work, you must
record the injury or illness on the OSHA 300 Log by placing a check
mark in the space for job transfer or restricted work and entering
the number of restricted or transferred days in the restricted work
column.
(i) How do I decide if the injury or illness resulted in
restricted work?
Restricted work occurs when, as the result of a work-related
injury or illness:
(A) You keep the employee from performing one or more of the
routine functions of his or her job, or from working the full
workday that he or she would otherwise have been scheduled to work;
or
(B) A physician or other licensed health care professional
recommends that the employee not perform one or more of the routine
functions of his or her job, or not work the full workday that he or
she would otherwise have been scheduled to work.
(ii) What is meant by ``routine functions''?
For recordkeeping purposes, an employee's routine functions are
those work activities the employee regularly performs at least once
per week.
(iii) Do I have to record restricted work or job transfer if it
applies only to the day on which the injury occurred or the illness
began?
No. You do not have to record restricted work or job transfers
if you, or the physician or other licensed health care professional,
impose the restriction or transfer only for the day on which the
injury occurred or the illness began.
(iv) If you or a physician or other licensed health care
professional recommends a work restriction, is the injury or illness
automatically recordable as a ``restricted work'' case?
No. A recommended work restriction is recordable only if it
affects one or more of the employee's routine job functions. To
determine whether this is the case, you must evaluate the
restriction in light of the routine functions of the injured or ill
employee's job. If the restriction from you or the physician or
other licensed health care professional keeps the employee from
performing one or more of his or her routine job functions, or from
working the full workday the injured or ill employee would otherwise
have worked, the employee's work has been restricted and you must
record the case.
(v) How do I record a case where the worker works only for a
partial work shift because of a work-related injury or illness?
A partial day of work is recorded as a day of job transfer or
restriction for recordkeeping purposes, except for the day on which
the injury occurred or the illness began.
(vi) If the injured or ill worker produces fewer goods or
services than he or she would have produced prior to the injury or
illness but otherwise performs all of the activities of his or her
work, is the case considered a restricted work case?
No. The case is considered restricted work only if the worker
does not perform all of the
[[Page 5980]]
routine functions of his or her job or does not work the full shift
that he or she would otherwise have worked.
(vii) How do I handle vague restrictions from a physician or
other licensed health care professional, such as that the employee
engage only in ``light duty'' or ``take it easy for a week''?
If you are not clear about a physician or other licensed health
care professional's recommendation, you may ask that person whether
the employee can perform all of his or her routine job functions and
work all of his or her normally assigned work shift. If the answer
to both of these questions is ``Yes,'' then the case does not
involve a work restriction and does not have to be recorded as such.
If the answer to one or both of these questions is ``No,'' the case
involves restricted work and must be recorded as a restricted work
case. If you are unable to obtain this additional information from
the physician or other licensed health care professional who
recommended the restriction, record the injury or illness as a case
involving job transfer or restricted work.
(viii) What do I do if a physician or other licensed health care
professional recommends a job restriction meeting OSHA's definition
but the employee does all of his or her routine job functions
anyway?
You must record the injury or illness on the OSHA 300 Log as a
restricted work case. If a physician or other licensed health care
professional recommends a job restriction, you should ensure that
the employee complies with that restriction. If you receive
recommendations from two or more physicians or other licensed health
care providers, you may make a decision as to which recommendation
is the most authoritative, and record the case based upon that
recommendation.
The concept of restricted work activity in the final rule falls
somewhere between the commenters' broadest and narrowest definitions of
the work activities that should be considered in determining whether a
particular case involves work restriction. The final rule's concept of
restricted work is based both on the type of work activities the
injured or ill worker is able to perform and the length of time the
employee is able to perform these activities. The term ``routine
functions of the job'' in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii)
clarifies that OSHA considers an employee who is unable, because of a
work-related injury or illness, to perform the job activities he or she
usually performs to be restricted in the work he or she may perform.
Use of the term ``routine functions of the job'' should eliminate the
concern of some commenters who read the proposed definition as meaning
that an employee had to be able to perform every possible work
activity, including those that are highly unusual or performed only
very rarely, in order for the employer to avoid recording the case as a
restricted work case (see, e.g., Exs. 15: 80, 247). In other words,
OSHA agrees that it makes little sense to consider an employee who is
prevented by an injury or illness from performing a particular job
function he or she never or rarely performed to be restricted (see,
e.g., Exs. 15: 80, 247). For example, OSHA finds that, for the purposes
of recordkeeping, an activity that is performed only once per month is
not performed ``regularly.'' This approach is consistent with OSHA
interpretations under the former rule. Limiting the definition to
``essential functions,'' the ADA term recommended by several commenters
(see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431), would be
inappropriate, because OSHA needs information on all restricted work
cases, not just those that interfere with the essential functions of
the job (29 U.S.C. 657(c)(2)).
On the other hand, OSHA agrees with those commenters who argued
that the proposed definition, to limit the definition of restricted
activity to the specific functions or tasks the employee was engaged in
on the day of injury or onset of illness would be unsatisfactory,
because doing so could fail to capture activities that an employee
regularly performs (see, e.g., Exs. 20; 15: 17, 129, 380, 418). In the
final rule, OSHA has decided that defining restricted work as work that
an employee would regularly have performed at least once per week is
appropriate, i.e., OSHA believes that the range of activities captured
by this interval of time will generally reflect the range of an
employee's usual work activities. Activities performed less frequently
than once per week reflect more uncommon work activities that are not
considered routine duties for the purposes of this rule. However, the
final rule does not rely on the duties the employee actually performed
during the week when he or she was injured or became ill. Thus, even if
an employee did not perform the activity within the last week, but
usually performs the activity once a week, the activity will be
included. OSHA believes that this change in definition will foster
greater acceptance of the concept of restricted work among employers
and employees because of its common sense approach.
Use of the term ``partial work shift'' in paragraph 1904.7(b)(4)(v)
covers restrictions on the amount of time an employee is permitted to
work because of the injury or illness. This interpretation of
restricted work was not generally disputed by commenters, although some
argued that the restriction on the hours worked should last for a
specific number of days before the case becomes recordable as a
restricted work case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391).
The final rule's restricted work provisions also clarify that work
restriction must be imposed by the employer or be recommended by a
health care professional before the case is recordable. Only the
employer has the ultimate authority to restrict an employee's work, so
the definition is clear that, although a health care professional may
recommend the restriction, the employer makes the final determination
of whether or not the health care professional's recommended
restriction involves the employee's routine functions. Restricted work
assignments may involve several steps: an HCP's recommendation, or
employer's determination to restrict the employee's work, the employers
analysis of jobs to determine whether a suitable job is available, and
assignment of the employee to that job. All such restricted work cases
are recordable, even if the health care professional allows some
discretion in defining the type or duration of the restriction, an
occurrence noted by one commenter (Ex. 15:442). However, the final
rule's provisions make it clear that the employee is not the person
making the determination about being placed on restricted work, as one
commenter (Ex. 15: 97) feared.
A number of commenters suggested that OSHA cease to require the
recording of restricted work cases entirely (see, e.g., Exs. 15: 119,
427). However, the Congress has directed that the recordkeeping system
capture data on non-minor work-related injuries and illnesses and
specifically on restricted work cases, both so that the national
statistics on such injuries and illnesses will be complete and so that
links between the causes and contributing factors to such injuries and
illnesses will be identified (29 U.S.C. 651(b)). Days away and
restricted work/job transfer cases together constitute two of the most
important kinds of job-related injuries and illnesses, and it would be
inappropriate not to record these serious cases. OSHA also cannot
narrow the definition of restricted work to those cases where the
employee is at work but cannot do productive work, as several
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because
the Congress clearly intended that workers whose work-related injuries
and illnesses were so severe as to prevent them from doing their former
work or from working for a full shift had experienced an injury or
illness that was non-minor and thus worthy of being recorded. OSHA does
not believe that requiring e